Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from an order of the Superior Court of Los Angeles County Super. Ct. No. CK63341, Jan G. Levine, Judge. Affirmed.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant G. P.
Linda M. Nakamura, under appointment by the Court of Appeal, for Defendant and Appellant J. G.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
EPSTEIN, P. J.
Father G. P. and mother J. G. appeal from the order terminating their parental rights. We affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
In May 2006, police found methamphetamine and a narcotic cutting agent in father’s motel room. In the motel room was father’s eight-month-old son, S. P. Father was arrested for possession of a controlled substance for sale, and S. P. was detained by the Department of Children and Family Services (DCFS). Mother, who lived separately from father, told DCFS that she and father had used methamphetamine regularly, but she had not used it since her third month of pregnancy. DCFS filed a petition pursuant to Welfare and Institutions Code section 300 to declare S. P. a dependent child. The child was released to his mother, who was ordered to randomly drug test.
All statutory references are to the Welfare and Institutions Code.
The court sustained three allegations in the petition: that mother and father had a history of methamphetamine use; that father was found in possession of a controlled substance while S. P. was in his care; and that mother and father engaged in a physical altercation and father had a criminal history of assault with a deadly weapon. S. P. was placed in mother’s home, with family maintenance services. Both parents were ordered to complete drug rehabilitation programs with random testing, parent education, and domestic violence counseling. Father was given monitored visitation.
Mother did not enroll in the court-ordered programs, failed to drug test on two occasions, and had a positive drug test in September 2006. DCFS filed a section 387 supplemental petition alleging that mother was not in compliance with the court orders. S. P. was detained and placed in foster care. The court sustained the section 387 petition on October 4, 2006. At that time, father was in compliance with the case plan, having participated in parenting education, drug rehabilitation, anger management, and domestic violence programs. All of his drug tests were negative.
Father was incarcerated on drug-related charges on November 20, 2006. At the six-month hearing in January 2007, the court found father was not in compliance with the case plan, and mother was in partial compliance. The court continued reunification services for both parents. S. P. was moved to the home of his maternal great-aunt and great-uncle in April.
The 12-month hearing took place on July 16, 2007. The DCFS report indicated mother was only in partial compliance with the case plan and father was still incarcerated with an expected release date of November 19, 2007. The report from Corcoran State Prison indicated that from January 2007 to the time of the hearing, father had been involved in a substance abuse program and participated in classes for parenting, anger management, domestic violence, communication skills, and relapse prevention.
Neither parent was present at the contested July 2007 hearing. Counsel for father, and for the child, asked that father be given another six months of reunification. The court acknowledged father’s participation in the programs, but found he was only in partial compliance with his case plan. The court terminated reunification services for both parents, and set a section 366.26 selection and implementation. Father challenged this order by petition for writ of mandate (Glen P. v. Superior Court (Nov. 29, 2007, B200976) [nonpub. opn.]), which was denied.
The section 366.26 hearing took place on November 9, 2007. The DCFS report for that date showed that mother’s visitation with the child had been inconsistent. She had only one visit in August and missed four visits in September. When she did visit, she often asked to leave before the two-hour visit was over. Father was still incarcerated. The adoption home study for S. P.’s great aunt and great uncle was completed and approved on November 7. S. P. was doing well in their care. Over the objection of the parents, the court terminated parental rights without allowing a contested hearing.
The parents requested rehearing, which was granted. After several continuances and supplemental reports, the contested selection and implementation hearing began on February 20, 2008. The court heard testimony from the children’s social worker, father, and mother. On February 25, 2008, the court found by clear and convincing evidence that S. P. was adoptable, and terminated parental rights. Mother and father each appeal from this order.
DISCUSSION
I
Father claims his parental rights should not have been terminated in light of his compliance with the service plan and his efforts to reunify with and maintain a relationship with his son. He argues that he did everything he could, but during his 11 months of incarceration, he was unable to visit and the social worker was not responsive to his written requests for updates about his son’s progress. Once released from prison, he resumed visitation. In these visits, S. P. and father interacted well. Father brought food and toys, played with S. P., and was helping S. P. with potty training. The boy calls father “daddy” and hugs and kisses him.
Father states he is not challenging the adequacy of reunification services, but he argues the absence of visitation during his incarceration was prejudicial to his interests at the selection and implementation hearing. He relies on In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407, in support of his argument that the social workers’ prior inactions were inappropriate and helped assure the “erosion (and termination) of any meaningful relationship” between appellant and his son. Despite father’s protestation, this is, in essence, a challenge to the adequacy of services, an issue which should have been raised at the 12-month review hearing when reunification services were terminated.
Under section 366.21, subdivision (g), if the time period for court-ordered services under section 361.5, subdivision (a) has been met or exceeded and a child is not returned to the custody of a parent at the 12-month review hearing, the court has three choices. It can continue the case for up to six months if it finds a substantial probability that the child will be returned to the parent (§ 366.21, subd. (g)(1); order that the child remain in long-term foster care if there is clear and convincing evidence that the child is not adoptable(§ 366.21, subd. (g)(3); or “[o]rder that a hearing be held within 120 days, pursuant to Section 366.26, but only if the court does not continue the case to the permanency planning review hearing and there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians.” (§ 366.21, subd. (g)(2), italics added.)
In this case, at the 12-month review hearing in July 2007, father’s counsel asked that father be given six more months of reunification services. The court found that “reunification services having been provided, there is no likelihood that [father] is going to reunite with his child.” The court terminated reunification services and set the case for a section 366.26 permanency planning hearing.
“An aggrieved party may seek review of the setting order by appeal from the order subsequently made at the section 366.26 hearing, but only if: (1) the party filed a timely petition for extraordinary writ review of the setting order; (2) the petition substantively addressed the specific issues to be challenged and supported the challenge by an adequate record; and (3) the appellate court summarily denied or otherwise did not decide the petition on the merits.” (In re Cathina W. (1998) 68 Cal.App.4th 716, 720; § 366.26, subd. (l)(1).)
Father challenged the setting order by petition for writ of mandate, arguing that the court should have extended services for an additional six months. Any challenge to the adequacy of the services he had received, including any inaction by the social worker, could have been, and should have been raised at that time. By written opinion on the merits, filed November 29, 2007, we concluded the court did not err in terminating reunification services and setting a permanency planning hearing. Father may not now obtain appellate review of the same order. (§ 366.26, subd. (l)(1).)
II
Mother claims her parental rights should not have been terminated because she fell within the “beneficial relationship” exception under section 366.26, subdivision (c)(1)(B)(i). Under that provision, a court will not terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
Mother’s argument is premised on the first year of S. P.’s life, when he was in her custody. She asserts that the court “did not give weight to her testimony about the day-to-day time she spent with the child during the first impressionable year of life. Mother asserts that this bond, which was created in his first year of life, was so strong and positive that severing such relationship would greatly harm the child.”
The time period mother refers to was from S. P.’s birth in August 2005 to his detention in September 2006. But the court received evidence that in the 17 months that followed, mother was not always consistent about visiting. She asked to end some visits early, and seemed to maintain an interest in playing with the child only for the first 25 minutes of the two-hour visits. During the visits, the caregiver “constantly needs to remind mother what not to do with [S. P.] in order to protect his safety.”
The social worker who monitored mother’s visits testified that S. P. recognizes mother when he sees her. During visits, mother attempts to read to the child, and to have him on her lap, but he does not have that kind of focus, and mother needs “to attend to what the child is doing rather than kind of forcing him to do.” According to the social worker, “Overall the child is a very playful child. He’s a very likable—he likes to—anybody who pays attention to him and engage in—in playing. He likes to play with everybody.”
According to the social worker’s January 2008 report, S. P. demonstrated emotional distress related to recent visits, such as acting out, nail biting, and nightmares. He wants to have the prospective adoptive parent with him at the visits. “The prospective adoptive parent has to spend extensive time to prepare the child to go to the visit and reassure him that he will return home with the prospective adoptive parents. At the end of the visitation with the birth parents, the child immediately without any hesitation is ready to go back knowing that he is returning home by saying ‘Let’s go’ to the CSW.”
This evidence establishes that S. P. enjoys his visits with mother, but it does not indicate that he has a close bond with her, or that he would suffer detriment if the relationship were terminated. The court did not err in concluding the beneficial relationship exception to termination of parental rights did not apply.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.