IN RE: KIERA R.

Reset A A Font size: Print

Court of Appeal, Second District, California.

IN RE: KIERA R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. AMIE R. et al., Defendants and Appellants.

B226947

Decided: February 28, 2011

Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant Amie R. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant Anthony F. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Frank J. DaVanzo, Deputy County Counsel for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Amie R. (Mother) and Anthony F. (Father) appeal orders from the dependency court denying their Welfare and Institutions Code section 388 petitions 1 and terminating their parental rights.   Mother and Father both failed to comply with the terms of their reunification services, and both were unable to show that they could provide a safe and stable home for their daughter, Kiera, who was placed with loving and stable prospective adoptive parents.

The dependency court did not err in denying the section 388 petitions, and Father's due process rights were not violated.   Furthermore, there was substantial evidence supporting the termination of parental rights.   Accordingly, we affirm.

FACTS

Kiera R. was born in June 2007.

In January 2009, the Department of Children and Family Services (DCFS) received a referral alleging that Kiera was residing with her parents in a “shanty”-like shack or converted garage with no utilities.   She was allegedly a victim of emotional abuse, general neglect, and caretaker absence and/or incapacity.   The parents were reported to be substance abusers who had engaged in domestic violence.

When the DCFS social workers visited the location, which was at the home of Father's parents, Mother opened the door of the dwelling with a beer in her hands.   She denied that she lived in the garage with the child, but the garage contained a car seat, clothes, and bottles, indicating that the parents and Kiera lived inside.   Mother stated she usually lived with her parents in Glendora, but that Father is not allowed to visit their home because he “puts his hands” on her.   She further stated that Father had recently “slugged” her.   Mother stated she drank up to five days a week but denied drug use within the previous two years, though she admitted to having used cocaine and methamphetamine prior to that.   She stated she had recently been diagnosed bipolar and prescribed lithium and Zoloft, but had not refilled the prescriptions.   Mother stated she took good care of her daughter and that alcohol use did not impair her parenting.

Father was also present.   He admitted to having used methamphetamine two days before and also smoking marijuana in the prior two weeks.   In contrast to Mother, he stated that both parents had been living in the shack for two years.   He did not know whether Mother currently used drugs, but stated she drank four beers a day.2  Kiera was taken into protective custody.

Mother had a lengthy history of arrests and convictions from 1989 to 2008, including for being under the influence of a controlled substance, forgery, theft, and passing a fictitious check.   Father also had a criminal history of arrests and convictions, including for robbery, failing to appear on a felony charge, and possession of controlled substance.

On January 15, 2009, DCFS filed a dependency petition, and at the detention hearing that day, the dependency court found Father to be the presumed father.   The court detained Kiera.   Kiera was placed in shelter care and DCFS was given discretion to attempt to detain Kiera with an appropriate relative or extended family member.   The court ordered implementation of family reunification services and visitations for both parents.

Kiera was thereafter placed with the family of a paternal second cousin, Patricia S., who indicated that the family would be interested in adopting Kiera if reunification services failed.   Patricia S. and her husband, Mark S., had been married for 32 years and two of their adult daughters lived with them.   All four family members were employed and the household was stable.   After her placement with Patricia and Mark S., DCFS social workers consistently observed Kiera to be in good health, well cared for, and attached to her caregivers.

Parents stipulated to certain allegations and disposition prior to the jurisdiction and disposition hearing.   At the jurisdiction and disposition hearing on February 18, 2009, the dependency court found that parents have a history of engaging in domestic violence involving Father's aggression toward Mother, that Mother periodically uses alcohol, which renders her unable to provide regular care for her children, and that Father has a history of substance abuse, including of marijuana and methamphetamine.   The court also found by clear and convincing evidence that return to the parents would create a substantial risk.   The court ordered that Mother participate in domestic violence counseling and ordered her to take 10 weekly, on-demand drug/alcohol tests;  a treatment program would be required if any tests were missed or dirty.   The court ordered Father to undertake drug counseling and a 52-week domestic violence treatment program, and also ordered him subject to random drug testing.   The court further stated that since Kiera was under the age of three, the court was only obligated to allow for six months of services, and after that time the court could institute a permanent plan including termination of parental rights.

A May 20, 2009 interim review report noted that parents were partially compliant with their ordered case plan.   Mother was enrolled in individual therapy and had attended three sessions of parenting classes.   However, of six scheduled drug/alcohol tests, Mother had only tested negative on three, had missed two, and had tested positive for methamphetamine on one.   In addition, Mother had not registered for domestic violence support group counseling.   Father had enrolled in drug counseling and parenting classes on March 4, 2009, but was terminated from his drug program on April 29 due to failure to take a random drug test.   Of eight administered random drug/alcohol tests, Father tested negative on six, missed one, and tested positive once for methamphetamine.   He completed parenting classes, but did not register for the court-ordered domestic violence counseling.

An August 6, 2009 status review report stated that Mother's individual therapy had been terminated for noncompliance, and that she had not informed DCFS of this termination.   Mother had also been terminated from her parenting classes for missing three sessions.   She had enrolled in domestic violence group and individual therapy.   Mother had not tested positive on any further drug/alcohol tests but had missed several of them.   Father had completed anger management and parenting classes.   He had tested negative on five additional drug/alcohol tests but had tested positive again for methamphetamine on one of them.   Father stated he had not yet started domestic violence group and individual therapy.   Although the parents' visits with Kiera had gone very well, with Kiera and the parents always eager to see each other, the report noted that neither parent was living in a safe environment for Kiera.   At the August 6, 2009 review hearing, the court stated that since both parents had failed to comply with the terms of the reunification services, it was not prepared at that point to allow another six months of reunification services.   The court continued the hearing.

Following this, Mother took 11 more drug/alcohol tests and tested clean on each.   She was stated to be living at her parents' house, was attending a domestic violence support group, and was in a program to be a drug/alcohol counselor.   She had completed 12 sessions of parenting education.3  Father had enrolled in a chemical dependency group and also in domestic violence group and individual therapy.   Father had also tested clean on each of his drug/alcohol tests since the last report.   Both parents had maintained their visits with Kiera and the visits had gone well.

At the continued hearing on October 28, 2009, the dependency court found that both parents had consistently and regularly visited with Kiera and made significant progress in resolving the problems which led to Kiera's removal.   The court ordered that reunification services would continue.   However, the court advised the parents' attorneys to tell their clients that the court still could institute a permanent plan that could include termination of parental rights.

A March 3, 2010 status review report stated that Mother had been in San Bernardino County jail for 60 days for an outstanding warrant.   Father had continued to test clean on drug/alcohol tests and had successfully completed a six-month chemical dependency program.   He was enrolled in domestic violence group and individual therapy;  he had attended 13 group sessions but had missed six.   The report stated that Kiera appeared to be well-bonded with her parents, especially Father, and that DCFS was recommending that Kiera be returned to Father.

However, it was later discovered that on March 1, 2010, Father had again tested positive for methamphetamine.   Further, he had also failed to complete domestic violence classes.   Mother had attended domestic violence counseling sessions from October 1, 2009, to December 3, 2009, but did not attend another session through early April 2010, including time after she got out of jail.   On approximately April 15, 2010, due to Father's positive test for methamphetamine and failure to complete domestic violence courses, DCFS changed its recommendation that Kiera be returned to him, and instead requested that reunification services for Father be terminated.   DCFS also requested termination of Mother's reunification services due to her noncompliance with her court-ordered classes.

The 12-month review hearing was held on April 15, 2010.   The court found by a preponderance of the evidence that returning Kiera to her parents would create a substantial risk of danger to her physical or emotional well-being.  “Neither parent is in compliance with the case plan so that the child could be safely returned to them.   Father had a dirty test.   Mother's changed programs yet again.   We are at 15 months.   Kiera is two.   We pushed it from the six months to the 12 months.   Now we're at 15 months.   I can find regular and consistent contact but I cannot find that either parent has made significant progress in resolving the problems which led to removal or that either parent demonstrated the capacity and ability to complete the objective of the treatment plan and provide for the child's safety, protection, physical or emotional well-being and special needs.”   The court thereupon terminated the reunification services and set a section 366.26 permanency planning hearing.   The court asked the parents' attorneys to inform them of their “388 rights.”

Mother was arrested again on June 28, 2010.   On July 1, 2010, Mother entered an inpatient program offering courses in parenting, self-esteem, substance abuse, and mental illness.   The program was to last six months, and allowed for the option of having Kiera stay with Mother.

On August 25, 2010, Father and Mother each filed 388 petitions addressing the court's April 15, 2010 order.   Father requested that reunification services be reinstated, and Mother asked that Kiera be placed with her in her inpatient program.

The DCFS August 26, 2010 366.26 report stated that Kiera had thrived in her new home since being placed with her caregivers on February 11, 2009, and that she had developed a strong parent/child bonding relationship with them.   The report also noted that both parents had been consistent with their visitation, except for Mother during the time when she was incarcerated.   Kiera stated that Mother was her “best friend.”   Kiera was also observed to have good relations with Father.   Nevertheless, given the parents' continuing troubles and the contrasting positive and stable nature of the caregivers' home, DCFS recommended that Kiera be adopted by her caregivers.

The section 388 petitions were heard first at the August 26, 2010 hearing.   Mother and Father were both allowed to testify in support of their petitions.   Mother testified that after the reunification services were terminated, she admitted to herself that she suffered from mental illness.   She had been taking all of her medication, which made her life a lot less chaotic, and she finally realized that she must never stop taking her medication.   Father stated that his life had “just turned over” after he had recently been diagnosed with a pulmonary embolism, and that he was going into a drug program.   Despite his drug relapse, however, Father had not followed through with enrollment in a chemical dependency program, and this failure also jeopardized his ability to complete a domestic violence program.

The dependency court denied both parents' section 388 petitions.   Citing In re Debra M. (1987) 189 Cal.App.3d 1032, 1038, the court stated:  “Childhood is brief.   It does not wait for a parent to rehabilitate.   Nurturing must be given by someone when the child is ready, not when the parent is ready.”   The court found that although Mother's progress in her program had been positive so far, this brief positive period followed a 20-year history of problems.   The court further stated that it “can only go to six months unless I can make the findings of a substantial probability of return.   At this point we're at 18 months.   We're a little past 18 months so the only issue for me is return, period.”   The court denied the section 388 petitions, finding parents' last-minute efforts were insufficient to show changed circumstances and that it would not be in Kiera's best interests to return her to Father or Mother.

The court then moved on to the section 366.26 portion of the hearing.   It found that Kiera was adoptable, and that no exceptions applied to her being adopted.   The court terminated parental rights and designated Kiera's caregivers, Mark and Patricia S., as her prospective adoptive parents.

DISCUSSION

Mother and Father both appeal from the order denying their section 388 petitions, which sought to modify the dependency court's April 15, 2010 order terminating family reunification services, and from the judgment terminating parental rights.   We affirm.

A. The Section 388 Petitions

Under section 388, the dependency court has discretion to modify a previously made order if circumstances have changed such that it would be in the child's best interests to modify the order.  (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527 & fn. 5.) This is a two-part requirement.   It is not enough to show merely a change in circumstances;  the petition must also show that modification of the order would be in the best interests of the child.  (Id. at p. 529.)   The parent seeking the modification bears the burden of making both showings.  (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

Modification of a previously made order is within the dependency court's discretion.  (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.)   The appellate court will not disturb the dependency court's determination “unless an abuse of discretion is clearly established.”  (Ibid.)

1. Mother's Appeal

Mother contends that the dependency court erred in denying her section 388 petition because her circumstances had changed and granting the petition would have been in Kiera's best interests.

Mother first argues that her circumstances changed due to a realization about her mental illness.   Mother states that she previously did not like the stigma of being bipolar and would therefore periodically stop taking her medication.   She claims that after she entered the inpatient program, she developed an intention to take the medication for the remainder of her life.   Since she began consistently taking her medication, her life became less chaotic.

Mother next argues that it was in Kiera's best interests to be placed with Mother because Mother's bipolar disorder had been at the root of her problems, and she had since recognized the importance of treating the disorder.   Mother also argues that she had completely removed the problems giving rise to the dependency action by participating in the court-ordered services.

We find that the dependency court did not abuse its discretion in denying Mother's petition.   The court's reliance on In re Debra M., supra, 189 Cal.App.3d 1032, and In re Casey D., supra, 70 Cal.App.4th 38, was appropriate.   As stated in In re Debra M., “The reality is that childhood is brief;  it does not wait while a parent rehabilitates himself or herself.   The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it.”  (189 Cal.App.3d at p. 1038.)   In re Casey D. pointedly held:  “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests.”  (70 Cal.App.4th at p. 47.)

Although Mother appeared to be doing well in her inpatient program, this brief period (of less than two months) followed an extended period of extreme turbulence not conducive to the care of a young child.   During the reunification services period, Mother missed a number of drug/alcohol tests, and tested positive for methamphetamine on one.   Her attendance at the various court-ordered courses was erratic, and she was arrested at least three times after the dependency proceedings were initiated.   Given Mother's history, the dependency court did not err in finding that two months in an inpatient program was insufficient to support a change in circumstances.  (See In re Mary G. (2007) 151 Cal.App.4th 184, 205-206 [finding a failure to show changed circumstances;  appellant's three-month sobriety following years of drug abuse was “not particularly compelling”].)   The court correctly found that Kiera, barely three years old at the time of the hearing on the section 388 petition, could not wait for Mother to rehabilitate herself.

After reunification services were terminated in April 2010, “the focus of the dependency proceedings had shifted from reunification to the child's need for a stable and permanent home.”  (In re Casey D., supra, 70 Cal.App.4th at p. 48.)   It was not shown that Mother could provide a stable and permanent home for Kiera.   While Mother may have gotten herself on the right track, the dependency court properly determined that she did not meet her burden of proving that circumstances had actually changed, or that modifying the April 15, 2010 order was in Kiera's best interests.

2. Father's Appeal

Father's appeal does not focus on the merits of the ruling denying his section 388 petition.   Instead, Father spends the bulk of his appeal arguing that his due process rights were violated because the dependency court “erroneously thought it could only consider returning Kiera to Father's care instead of considering reinstating family reunification services as requested.”

“[D]ue process ․ is a flexible concept, whose application depends on the circumstances and the balancing of various factors.  [Citations.]”  (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.)  “In dependency proceedings, due process violations have been held subject to the harmless beyond a reasonable doubt standard of prejudice.”  (In re Justice P. (2004) 123 Cal.App.4th 181, 193.)   Here, we find that the asserted error was not error at all.   There was no due process violation.

Father's argument suffers from several decisive flaws.   First, Father has not shown that the dependency court erroneously thought it was unable to reinstate reunification services.   Father relies entirely on the following court comments from the August 26, 2010 hearing:  “I can only go to six months unless I can make the findings of a substantial probability of return.   At this point we're at 18 months.   We're a little past 18 months so the only issue for me is return, period.”   Father contends that these comments (which take up six lines of a 35-page hearing transcript) evidence that the court misunderstood its legal options in hearing a section 388 petition.   He argues that the court erroneously thought ordering the resumption of reunification services was not within its powers.4  This interpretation of the court's statements is not compelling.   At most, the court's comments were ambiguous, and do not clearly evidence any misunderstanding of the court's options when hearing a section 388 petition.   Indeed, it appears that the court did understand its options and the legal requirements of granting further reunification services.   The reunification period is to be extended beyond 12 and 18 months only under certain circumstances, and in order for services to be extended, the permanent plan must be such that the child will be returned and safely maintained in the parent's home. (§ 361.5 subds. (a)(3), (4).)   The court's emphasis on the subject of “return” was proper since, when considering reunification services, it had to consider the potential for return.

Second, unlike cases in which requests for hearings on section 388 petitions are improperly denied, where due process rights may be violated (see, e.g., In re Hashem H. (1996) 45 Cal.App.4th 1791, 1800;  In re Lesly G. (2008) 162 Cal.App.4th 904, 915), Father was allowed a full opportunity to present his section 388 petition, and he testified in support.   The court did not seek to limit his argument or testimony.

Third, Father's argument puts the cart before the horse.   In order for the court to reach even the possibility of granting further reunification services or return, Father first had to present a successful section 388 petition.   If the court had indicated that the petition was viable, but found it was without power to grant relief, then Father may have a good argument that he was not afforded his full panoply of rights.   But since the court found the petition was without merit, there was no need for the court to even consider potential remedies.   The court's comments about the issue of return were no more than surplusage to its decision.

To make a successful section 388 petition, Father had to prove both a change in circumstances and that modifying the April 15, 2010 order was in Kiera's best interests.  (See In re Casey D., supra, 70 Cal.App.4th at p. 47.)   Father's section 388 petition stated that his circumstances had changed because he had attended domestic violence counseling since October 7, 2009, and had attended 31 classes.   Father also testified that his life had changed after he had recently been diagnosed with a pulmonary embolism, and that he was going into a drug program.

The court properly found that Father did not meet his burden in making the section 388 petition.   By all accounts, Father and Kiera had good relations.   But, as with Mother, Father's consistent failure to comply with the terms of the reunification services and to exhibit that he could provide a stable and permanent home for Kiera were the key determinants.   Father had been ordered to complete a 52-week domestic violence program in February 2009.   The section 388 petition was heard 18 months later, in August 2010, and Father had not come close to completing the course.   Furthermore, despite multiple dirty tests for methamphetamine, at the time of the section 388 hearing Father was not enrolled in a chemical dependency program, and this failure also jeopardized his participation in the domestic violence program.   Father's section 388 petition, therefore, was properly denied and his due process rights were adequately protected.

B. Termination of Parental Rights

On appeal of an order terminating parental rights, we determine if there is any substantial evidence to support the conclusions of the dependency court.   All conflicts are resolved in favor of the prevailing party and all legitimate inferences are drawn to uphold the lower court's ruling.  (In re Josue G. (2003) 106 Cal.App.4th 725, 732;  In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)   We cannot reweigh the evidence or substitute our judgment for that of the trial court.  (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)

At the selection and implementation hearing under section 366.26, subject to certain exceptions, the court must select adoption as the permanent plan and terminate parental rights if it finds that the child is likely to be adopted. (§ 366.26, subd. (c)(1);  In re Celine R. (2003) 31 Cal.4th 45, 49;  In re Jamie R., supra, 90 Cal.App.4th at p. 773.) 5  Adoption, when possible, is the permanent plan preferred by the Legislature.  (In re Derek W. (1999) 73 Cal.App.4th 823, 826;  In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.)   A parent may avoid termination of parental rights by showing that termination would be detrimental to the child.  (In re Celine R., supra, 31 Cal.4th at p. 53.)

1. Mother's Appeal

Mother argues that the dependency court erred because it should have found termination of parental rights would be detrimental to Kiera pursuant to the statutory exception of section 366.26, subdivision (c)(1)(B)(i), which applies when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”   Mother bears the burden of showing that this statutory exception applies, and that termination would be detrimental to the child.  (In re Derek W., supra, 73 Cal.App.4th at p. 826;  In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

We affirm the dependency court's decision to select adoption as the permanent plan and terminate parental rights, and its ruling that no exception applied.   Substantial evidence supported this decision.   While Mother's visits with Kiera appear to have been fairly regular, she still had to establish that Kiera would benefit from continuing the relationship.   Even frequent and loving contact between parent and child may be insufficient to establish the required benefit.  (In re Teneka W. (1995) 37 Cal.App.4th 721, 728;  In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419;  In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.)   A parent must show that she or he occupies “ ‘a parental role’ in the child's life.”  (In re Andrea R., at p. 1108.)   The parent must show that “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.   In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.   If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.”  (In re Autumn H. (1994) 27 Cal.App. 4th 567, 575.)

Mother failed to meet her burden of proof.   She did not show that severing the relationship with Kiera would cause great harm to the child.   By the time of the hearing, Kiera had spent nearly half her life living apart from Mother.   When, as an infant, she had lived with Mother, it was in an unsafe and unhealthy environment.   There was no substantial evidence of the “consistent, daily nurturing that marks a parental relationship.”  (In re Derek W., supra, 73 Cal.App.4th at p. 827.)   Instead, as explained above, Mother's compliance with the court-ordered programs was erratic, and she failed to demonstrate that she could provide a stable and nurturing environment for Kiera.

This conclusion was augmented by comparing the stable, loving, and consistent care provided by Kiera's prospective adoptive parents, Patricia and Mark S. Kiera was observed to have developed a strong parent/child bonding relationship with them, and she thrived after being placed in their home approximately 18 months prior to the order terminating Mother's parental rights.   With the selection of adoption as the permanent plan, Kiera could look forward to the prospect of a secure and stable home, a prospect that would have been unlikely had the court decided differently.

2. Father's Appeal

Like Mother, Father argues that the exception provided in section 366.26, subdivision (c)(1)(B)(i) applies, and that the dependency court should not have terminated parental rights.   Much of the analysis applying to Mother's appeal of the order also applies with respect to Father.   While Father regularly visited Kiera, he also failed to demonstrate that Kiera would benefit from continuing the relationship.

In his appeal, Father cites to In re S.B. (2008) 164 Cal.App.4th 289, in which the Court of Appeal reversed an order terminating parental rights for a father who had maintained regular, consistent, and appropriate visits with his child.   However, unlike the father in In re S.B., who had complied with “ ‘every aspect’ of his case plan” (id. at p. 298), Father demonstrated an inability to comply with the terms of the reunification services.

Father's situation is more similar to that of the appellant mother in In re Jasmine D. (2000) 78 Cal.App.4th 1339, who maintained a good relationship with her daughter but failed to comply with the terms of reunification services.   In affirming an order terminating parental rights, that court noted the “section 366.26, subdivision (c)(1)(A) exception is not a mechanism for the parent to escape the consequences of having failed to reunify.   That opportunity is provided by section 388, which permits a parent to petition for reconsideration of the reunification issue based on a finding of changed circumstances.”  (In re Jasmine D., at p. 1348.)   Here, Father failed to present a viable section 388 petition, and section 366.26, subdivision (c)(1)(A) did not provide him with another chance to attempt reunification.

Also apposite is the holding that “a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent.”  (In re Jasmine D., supra, 78 Cal.App. 4th at p. 1350.)   Kiera and Father appeared to like each other and enjoyed their time together, but this relationship could not override Father's inability to provide a safe and stable home for Kiera.   Father did not enroll in the domestic violence course until well after he was ordered to do so, and he still had not completed it by the time of the permanency planning hearing.   Furthermore, he failed multiple drug tests, and failed to adequately seek rehabilitation treatment.   As with Mother, Father failed to demonstrate that he could fulfill Kiera's need for a parent.   Particularly when his relationship with Kiera was balanced against the stable and loving home provided by the prospective adoptive parents, there was clearly good reason to terminate Father's parental rights.   Therefore, we find that substantial evidence supported termination of both Mother's and Father's parental rights.

DISPOSITION

The order denying appellants' section 388 petitions and the judgment (order terminating parental rights) are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTFN⌑1.  Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

FOOTNOTES

FN2. Another daughter of Mother's, Brianna, was 14 in January 2009 and had been living with Mother's parents for five years.   Brianna was born in jail in San Francisco, where Mother was incarcerated for forgery.   Brianna stated when she was young Mother would often get drunk and her grandfather would come to where she and Mother were living to pick up Brianna.   On March 11, 2009, the dependency court granted legal guardianship of Brianna to her maternal grandparents and jurisdiction was terminated.   Brianna is not a subject of this appeal..  FN2. Another daughter of Mother's, Brianna, was 14 in January 2009 and had been living with Mother's parents for five years.   Brianna was born in jail in San Francisco, where Mother was incarcerated for forgery.   Brianna stated when she was young Mother would often get drunk and her grandfather would come to where she and Mother were living to pick up Brianna.   On March 11, 2009, the dependency court granted legal guardianship of Brianna to her maternal grandparents and jurisdiction was terminated.   Brianna is not a subject of this appeal.

FN3. Mother had been arrested on July 30, 2009, for two outstanding warrants for driving under a suspended license and lack of registration, and had since started community service to take care of the warrants..  FN3. Mother had been arrested on July 30, 2009, for two outstanding warrants for driving under a suspended license and lack of registration, and had since started community service to take care of the warrants.

FN4. At hearing, Father's counsel did not object or attempt to correct the supposed misunderstanding..  FN4. At hearing, Father's counsel did not object or attempt to correct the supposed misunderstanding.

FN5. Neither Mother nor Father disputes that Kiera is likely to be adopted..  FN5. Neither Mother nor Father disputes that Kiera is likely to be adopted.

DOI TODD, J. ASHMANN-GERST, J.