Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK57941 Albert Garcia, Juvenile Court Referee.
Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor and John M. Kennedy, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel for Respondent.
CHAVEZ, J.
Gloria W. (mother), mother of A.G. (born in May 1989); P.B. (born in December 1991); S.O. (born in March 1995); G.K. (born in July 1999); G.R. (born in January 2002); and L.B. (born in March 2006), appeals from two orders of the juvenile court: an order denying her petition pursuant to Welfare and Institutions Code section 388; and an order terminating her parental rights as to G.K. We affirm the orders.
All further statutory references are to the Welfare & Institutions Code unless otherwise indicated.
CONTENTIONS
Mother contends that the juvenile court should have granted her section 388 petition because she showed a positive and material change in circumstances and that additional reunification services were in G.K.’s best interests.
Mother’s arguments regarding the juvenile court’s order denying her section 388 petition refer only to G.K. While the petition was filed as to all the children, we address only those arguments made by mother.
Mother further contends that she demonstrated that the section 366.26, subdivision (c)(1)(B)(i) parental relationship exception to termination of parental rights was applicable, and that the juvenile court should have placed G.K. under legal guardianship rather than terminating her parental rights.
COMBINED STATEMENT OF THE CASE AND FACTS
1. Initial detention
On February 28, 2007, the Department of Children and Family Services (DCFS) received an expedited response referral from the Compton Sheriff’s Station. Mother had come to the attention of the police when she stood in the middle of the street holding 11-month-old L.B. up over her head. Mother was incoherent and the police officer was unable to get any information from her. L.B. was taken into protective custody and mother was involuntarily hospitalized. Thereafter, L.B. was medically cleared at a community hospital with no signs of abuse or neglect.
DCFS confirmed that mother resided with her sister, Angela M. Angela informed DCFS that mother is a good mother and could not explain the behavior that led to mother’s hospitalization. DCFS also interviewed 15-year-old P.B., who reported that mother smoked “weed” but that mother is not physically or emotionally abusive. Various other family members were interviewed, and all reported that mother was a good mother. Angela reported that mother had a nervous breakdown the previous year after maternal grandmother passed away. Angela reported no further concerns with mother’s parenting skills. Angela reported that mother’s oldest child, A.G., had been diagnosed with schizophrenia and was taking medication for this condition. No other medical, mental, or emotional information was provided as to any other family members.
On March 5, 2007, DCFS filed a petition on behalf of the children. The petition alleged that mother had mental health issues, that she endangered L.B., had a history of substance abuse, and was a current user of marijuana. DCFS recommended that G.K., G.R., and L.B. be detained in foster care. DCFS advised that the whereabouts of A.G., P.B., and S.O. were unknown, and recommended protective custody warrants. Angela had informed DCFS that G.R. was probably at the home of her father, and that G.K. was probably at the home of his paternal grandmother, Dorothy H.
The children’s fathers are not parties to this appeal and did not reside in mother’s home.
At the March 5, 2007 detention hearing, the juvenile court ordered the children detained. The court found that DCFS had established a prima facie case for detaining the six minors, and that they were persons described under section 300, subdivisions (b) and (j). The court detained L.B. with mother’s sister, Angela, and the other five children in shelter care, giving DCFS discretion to release any minor to relative care. The court ordered counseling for the five older children and mother, as well as mental health services for mother. The court continued the matter for a pretrial resolution conference.
2. Pretrial resolution conference
DCFS filed a jurisdiction/disposition report for the March 29, 2007 pretrial resolution conference. A.G., P.B., and S.O. were residing in Angela’s home. G.K. was residing in the home of his paternal grandmother, Dorothy H., where he had lived since his birth. G.R. was residing in the home of her paternal aunt, Stephanie T., and L.B. was residing in the home of her paternal aunt, L.H. DCFS reported that the family had a prior history with DCFS, with three referrals dating back to 2001. Legal guardianships had been established for A.G., S.O., P.B., and G.R. in the past, but the guardianships had been terminated and the children returned to mother.
Dorothy H. reported that G.K. had been living with her since he was “a few months old.” However, he visited with his mother and siblings at Angela’s house. G.K. reported that he had lived with Dorothy since birth.
Mother had been interviewed on March 16, 2007. Mother stated that she was hospitalized because she was picked up by the police. She said nothing to them because there was an outstanding warrant for her. Mother admitted that she had started having psychological problems when she lost her Section 8 housing, was put in jail, and got shot. This was the first time she had been hospitalized. Mother indicated that she had been given medication, which she was taking, and that she had an appointment with a mental health organization.
Mother was referring to a 2005 incident. She was incarcerated for almost a year on 15 counts of murder, but was not convicted. Mother was also shot approximately two years before the filing of the petition.
Mother explained that on the day of the incident, she had left home early because she thought someone would call “the PET team” on her. She went to catch the bus, but it didn’t come, so she began walking. She saw some gang members in a car, and they doubled back. She thought they were interested in her shoes. The gang members started shooting at her and L.B., so she ran down the street. She played dead, but the baby sat up. When she saw the sheriff, she ran into the street. She denied holding L.B. over her head.
Mother may have been referring to the psychiatric emergency team, an emergency service of the Los Angeles County Department of Mental Health. (See .)
Mother admitted to using marijuana in the past, but stated that she “never had a problem with it.” Mother stated that the last time she used marijuana was January 2007. She only used it socially, and she had entered a drug program of her own will.
The report from the Compton Sheriff’s Station contradicted mother’s story. The police had responded to a report of an insane person. According to a witness, mother was walking in the street carrying L.B. Mother was yelling, screaming, throwing items and raising the child above her head. The witness thought the behavior was strange and dangerous, therefore contacted the police. Following her detention, mother was speaking incoherently and rapidly. Her clothing was disheveled and her right shoe was missing. Mother declined to answer any questions.
DCFS recommended that the juvenile court take jurisdiction over the minors and provide reunification services for mother.
Mother appeared for the March 29, 2007 hearing. The matter was continued for a supplemental report from DCFS. At the continued hearing on May 15, 2007, mother agreed to submit on the social worker’s report. The children were declared dependents of the juvenile court and removed from mother’s custody. DCFS was ordered to provide mother with reunification services including drug rehabilitation with random drug testing, parenting classes, individual counseling to address case issues, a psychological evaluation, and compliance with any orders regarding psychotropic medication.
The first amended section 300 petition was amended to indicate that on February 28, 2007, mother placed L.B. in an endangering situation by standing in the middle of the street holding the child over her head and that mother was involuntarily hospitalized, resulting in a diagnosis of psychosis. The drug count against mother was dismissed.
3. Interim reports
On July 19, 2007, DCFS reported that although mother had enrolled in a drug treatment program her attendance had not been consistent. She had participated in only two drug tests, one of which was positive for marijuana. As of November 13, 2007, mother had been terminated from her drug program for noncompliance. Mother was reported to be residing in Texas, but the telephone number provided to DCFS was not working.
DCFS filed a status review report on December 10, 2007. A.G. had been incarcerated and was at Twin Towers Correctional Facility. P.B. and S.O. remained with Angela. G.K. remained with paternal grandmother Dorothy H., and both G.R. and L.B. remained with their respective paternal aunts.
DCFS had made contact with mother by phone on December 6, 2007. Mother stated that there was “too much going on right now and I’m going to continue to do what I’ve been doing, I’m working and I’m alive as you can hear me. I can’t talk to you right now.” Mother then terminated the call. The social worker attempted to call mother back to let her know that there was a hearing on December 10, 2007, to which mother responded, “I’m sure you have every report about me that you need.” The social worker believed that mother was in California at the time of the call, as she stated that she was “walking on 60th and Broadway.”
The court set the matter for a contested status review hearing. At the hearing on February 13, 2008, the court terminated reunification services for mother. A section 366.26 hearing was set for A.G., P.B., and S.O. The court found notice was not proper for the fathers of G.R. and G.K., therefore it continued the status review hearing for further notice. After notice was given, reunification services were terminated for the fathers of G.R. and G.K. on May 12, 2008.
At an April 24, 2008 hearing the court, frustrated that notice had been improper on several court dates, sanctioned DCFS $400 for each date that notice had not been proper.
4. Section 366.26 hearing as to P.B. and S.O.
DCFS prepared reports for the section 366.26 hearing on June 10, 2008. DCFS reported that L.B.’s current caregiver was not interested in adopting her and requested further time to find an appropriate adoptive home for her. G.R. and G.K. were thriving in their prospective adoptive homes, but the adoptive home studies were not complete, so more time was needed. In addition, DCFS had to complete a due diligence report on G.K.’s father to ensure proper notice.
DCFS recommended legal guardianship for P.B. and S.O. with their current caregiver, Bobby S. A.G. was 19 years old and was incarcerated at Twin Towers. DCFS was unable to find relatives able to take him. He had not finished school as he refused to go, and DCFS had not been able to develop an independent living plan for him. He appeared to have developmental delays and could not carry on a conversation. DCFS recommended that a permanent plan be reassessed upon his release from Twin Towers. On June 10, 2008, the juvenile court ordered legal guardianship for S.O. and P.B., but maintained jurisdiction over the children. The section 366.26 hearing was continued as to the other children. Mother’s counsel had not had contact with mother since May 2007.
5. Status review reports
On July 22, 2008, DCFS filed a status review report for the children. L.B.’s caregiver had asked for the child’s removal, and DCFS was in the process of placing her with another family member. A.G. was scheduled for release from Twin Towers on July 24, 2008.
For the September 8, 2008 hearing, DCFS reported that the homestudy for G.K.’s caregiver was still not completed. G.R.’s caregiver wanted to postpone the homestudy as she was in the process of moving. The section 366.26 hearing for G.K. and G.R. was continued to January 21, 2009. L.B.’s new caregiver, P.B. and S.O.’s legal guardian, had expressed interest in legal guardianship of L.B. The section 366.26 hearing for L.B. was continued to October 6, 2008, for guardianship letters.
On November 6, 2008, mother advised the DCFS social worker that she was in Tulsa, Oklahoma. She indicated that her boyfriend had been murdered and left her with a four-bedroom house. She also reported that she was working and wanted her children back.
On December 30, 2008, DCFS received information that A.G. was incarcerated in Twin Towers on a felony charge. The DCFS social worker met with him at the Compton Court on January 5, 2009. She found he was unable to answer questions or hold a conversation. A.G.’s public defender was unable to interview A.G., and his case was sent to Department 95 for evaluation.
Department 95 of the Los Angeles Superior Court is the department that handles cases involving mental health issues including mental health evaluations, involuntary detentions, conservatorships, and civil commitments. (See .)
6. Section 366.26 hearings as to L.B. and G.R.
On October 6, 2008, guardianship was established for L.B.
DCFS filed a section 366.26 report regarding G.K. and G.R. for the January 21, 2009 hearing date. G.R. remained with her paternal aunt Stephanie T., and G.K. remained with his paternal grandmother Dorothy H. DCFS recommended adoptive planning for G.K. and that Stephanie T. be granted legal guardianship of G.R. However, the adoptive homestudy for Dorothy H. had not been completed. G.K.’s case was continued to April 20, 2009, and G.R.’s case was set for February 4, 2009, for receipt of letters of guardianship.
On February 4, 2009, Stephanie T. was appointed G.R.’s legal guardian. The juvenile court maintained jurisdiction over her and set a review hearing for July 7, 2009.
7. Mother’s first section 388 petition
On March 4, 2009, mother filed a section 388 petition requesting that the court reexamine and change the proposed plan for G.K. Mother alleged that she had moved back to California and was in treatment. She stated that she was in compliance with her case plan and that she had been visiting regularly with her children. Mother claimed that the children were not happy, needed their mother and were lacking the love that they need to succeed. Mother provided a letter from a new program in which she had enrolled for substance abuse counseling and treatment. Mother had enrolled on February 9, 2009, and was involved in alcohol and drug education, recovery discussion, parenting, and 12-step meetings. Her attendance so far had been good and her participation fair. During her one-on-one sessions she was revealing issues she needed to overcome.
The letterhead on the letter indicates the name of the organization as “West Coasting Counseling Center.” However, the director’s business card, which appeared to be photocopied on the same page, indicates that the correct name is “West Coast Counseling Center.”
On March 10, 2009, the juvenile court denied mother’s petition without a hearing. The court indicated that mother had not shown a change of circumstances, and the proposed change of order did not promote the best interests of the children. The court noted that mother was just beginning to comply with the case plan as of February 2009, when all children, except G.K., were in a permanent plan of guardianship.
8. April 20, 2009 report and hearing as to G.K.
On April 20, 2009, DCFS filed another report pursuant to section 366.26 regarding G.K. DCFS reported that the adoptive homestudy was approved as of October 29, 2008. G.K. was thriving in Dorothy H.’s home, was aware of the adoption and supportive of his grandmother pursuing adoption as a form of permanence for him. G.K. understood that adoption meant that he would be able to remain in his grandmother’s care, where he had been since he was born.
The hearing was continued to June 2, 2009. DCFS was ordered to make every effort to interview mother and provide a supplemental report before the hearing date.
9. June 2, 2009 supplemental report
DCFS filed a supplemental report as ordered. DCFS had made face to face contact with G.K. on April 29, 2009. G.K. stated that he had spoken to his mother on the phone two days before, but he had not seen her. He stated that he loved his mother, but that he still wanted his grandmother to adopt him. Dorothy H. stated that she had also spoken to mother two days before, and mother had asked her not to adopt G.K. Dorothy stated that she knew adoption was the right thing to do and she intended to continue with the process.
On May 18, 2009, DCFS had contact with mother. Mother stated that she receives her mail in Los Angeles but that she is living in Oklahoma. She planned to get all her children and move back there, where she had a five bedroom home. Mother repeated that she was attending counseling at West Coast Counseling Center, she was participating in parenting and drug screens, and “whatever else I was ordered to do.” Mother stated that she would complete her programs on July 9, 2009. Mother claimed that she went to Compton Mental Health for an evaluation and was told that she did not need to come for services. She stated that she would provide written confirmation of this, but she did not. Mother stated that she is working in Oklahoma in a women’s shelter, that she is off until February 4, 2010, and wants to get everything resolved before then.
On May 27, 2009, DCFS contacted mother’s case manager at West Coast Counseling Center. It was reported that mother attended the program three days per week, which included parenting, substance abuse, recovery, anger management and random drug screens. Mother missed meetings one or two times a month, but usually had a valid excuse. Mother had three negative drug tests.
DCFS continued to recommend termination of parental rights and a permanent plan of adoption for G.K. Dorothy H. was committed to adopting G.K., but stated that she did not intend to “take the child from mother.” She would allow mother to visit, spend time with G.K., and talk with him on the phone.
On June 2, 2009, the matter was continued to July 23, 2009, for proper notice to the parents.
10. Mother’s second section 388 petition
On July 14, 2009, mother filed a second section 388 petition based on changed circumstances. Mother alleged that she had complied with the court ordered case plan. She sought reinstatement of reunification services and unmonitored visitation. She argued that if permitted to reunify with her children, they could all live together and be raised by their mother. Mother attached a July 2, 2009 “pre completion letter” from her case manager confirming her participation in parenting and substance abuse, and including negative drug test results from February 18, 2009 through June 30, 2009. Mother also attached the State of California “Certification” of her counseling center.
Mother appeared at the July 23, 2009 hearing and requested a contested hearing on her section 388 petition and the 366.26 proceedings regarding G.K. The court set the matter for September 9, 2009.
Mother appeared for the September 9, 2009 contested hearing, but the matter was continued due to the lack of a section 388 report from DCFS. The matter was continued to October 30, 2009, with DCFS ordered to interview mother regarding both proceedings.
On October 30, 2009, DCFS responded to mother’s section 388 petition. As of June 9, 2009, mother was reportedly living with her sister, Angela. DCFS had concerns about the children’s safety in that home. At the time of the initial detention the children had been living in Angela’s home, but were subsequently placed elsewhere due to DCFS’s concerns. In addition, DCFS did not believe that mother’s drug treatment program could meet DCFS standards. It was supposed to be a six- to twelve-month program, but mother had supposedly completed it in five months. In addition, DCFS could not confirm that mother had participated in mental health counseling at Compton Mental Health.
DCFS also described an incident with G.K.’s grandmother, Dorothy H., on July 27, 2009. Mother telephoned and started shouting at Dorothy H., telling her she was not going to adopt G.K., that she better watch out, and that she would not make it to court. G.K. took the telephone away from Dorothy and told his mother not to speak to his grandmother that way. G.K. was upset about the incident and reported that mother was “cussing, because she does not want grandmother to adopt me.” G.K. stated again that he would like to be adopted by Dorothy H. but would like to visit with mother.
DCFS also noted that G.K. had never lived with mother, but had resided with Dorothy H. since he was two months old. Mother did not appear to be in a position to offer the children stability or provide them with a safe environment.
On June 15, 2009, a visitation schedule was arranged for mother with P.B., S.O., G.R., and L.B. Mother’s visits were scheduled for Saturdays from 12:00 to 7:00 p.m. Mother had missed visits on August 1, 2009, August 8, 2009, and August 15, 2009. The caregiver stated that she and the children had plans for the weekend to which mother was invited, but mother declined the invitation.
On September 23, 2009, a visitation schedule was arranged for mother with G.K. Mother’s visits were scheduled for Wednesdays from 3:00 to 4:30 p.m. in the DCFS office. On September 28, 2009, DCFS received a phone call from mother. She stated that she could not make the visit because she was out of town. On October 5, 2009, mother left a voice message stating that she continued to be out of town and was not able to get a flight to Los Angeles. Mother’s visit for October 21, 2009, also did not take place. Mother did not show up for the visit and did not call to cancel.
Mother appeared for the hearing on October 30, 2009. However, DCFS had failed to provide certain essential information. DCFS had failed to visit with A.G., who was incarcerated. In addition, it appeared that G.K.’s adoption social worker was unaware of mother’s section 388 petition, as the social worker indicated that mother had shown no intention of reuniting with G.K. Apparently mother was under the impression that it didn’t matter if she went to Oklahoma, since Dorothy H. had told her that she wasn’t going to allow her to see G.K. anyway. DCFS was asked to make sure that visits between mother and G.K. were arranged. DCFS was ordered to provide a supplemental report. The matter was continued to January 12, 2010.
11. Additional status review reports
DCFS provided a status review report for the regular status review hearing scheduled for January 6, 2010. A.G. was now in Regional Center housing. P.B. and L.B. continued to live with their legal guardian, and were doing well. S.O. and G.R. lived with G.R.’s legal guardian, and were also doing well.
Regional Centers are private nonprofit corporations that contract with the state to provide services to individuals with developmental disabilities. (See .)
DCFS continued to have concerns about the legitimacy of mother’s counseling program. A letter from mother’s counselor indicated that mother had stayed with “West Coast Counseling” after completion of her program and she was reported to have completed further aftercare on October 15, 2009. However, mother had informed DCFS that she was not in Los Angeles in October 2009.
DCFS confirmed with the Department of Mental Health that mother was assessed on June 9, 2009. The Department determined that mother did not qualify for services based on mother’s report, that she had no problems or worries but was merely fulfilling a court order.
Mother indicated that she was renting an apartment and wanted the children to visit her there. Mother was unemployed, but was living off tips she received for doing hair.
Mother appeared for the January 12, 2010 continued hearing, but because G.K. was not present, the matter was continued.
In a status review report dated January 21, 2010, DCFS reported that A.G. left his Regional Center placement on January 5, 2010. On January 12, 2010, mother called the Regional Center and requested that they come to her residence to pick A.G. up. When the staff member arrived at mother’s house, she was not there and A.G. refused to return to his placement. Regional Center personnel returned a second time to get A.G. back to his placement, but he had left.
By May 20, 2010, DCFS reported that A.G. was back in Twin Towers after being arrested on February 9, 2010. The Regional Center reported that the plan was for him to go to Porterville Developmental Center. The juvenile court terminated jurisdiction over A.G., but stayed the order.
On July 7, 2010, DCFS reported that P.B., S.O., G.R., and L.B. were thriving in their placements. The report did not mention G.K. Mother was having monitored visitation with the children at the DCFS office, and was attending the visits at least twice per month. Mother’s visits were appropriate and she had attended four visits between the end of April and the middle of June 2010.
By April 2010, mother was married to the alleged father of G.R. and L.B. Mother stated that the couple did not have a permanent residence at the time.
12. Contested hearing on mother’s second section 388 petition and the 366.26 hearing as to G.K.
The court conducted a contested hearing on mother’s second section 388 petition and the section 366.26 permanency planning hearing as to G.K. on July 7, 2010. Mother asserted that she had met her burden by completing her case plan and testing negatively throughout her participation in the program. In addition, she claimed that she had been visiting regularly with the children. Counsel for S.O., P.B., G.R., and L.B. agreed that the court should grant mother’s section 388 petition. DCFS argued that the petition should be denied, since mother’s circumstances had not changed significantly. There were concerns regarding the program mother had participated in, she did not have stable housing, and had been granted several years to reunify with her children, which she failed to do. DCFS argued that the best interest of the minors was served by stability and permanency planning. G.K.’s attorney also argued that the petition should be denied, noting that mother had not produced any certificates of completion, and that G.K. was differently situated than the other children because he had been living with Dorothy H. since birth and wanted to be adopted by her.
After hearing argument, the court found that mother had not met her burden of proof on the issue of changed circumstances. The court therefore denied the petition, and moved on to the section 366.26 hearing regarding G.K.
Mother’s attorney insisted on taking G.K.’s testimony in open court with mother in the courtroom. G.K. testified that he was 10 years old. He “sometimes” visited with mother on holidays or weekends, at his aunt’s house or the home of Stephanie T. G.K. testified that he loved his mother. When mother’s counsel asked him if he ever cried when saying goodbye to his mother, G.K. began crying in court. G.K. testified that he didn’t think he completely understood what adoption meant. When mother’s counsel asked “Do you understand that adoption means that your mom wouldn’t be your mom anymore?” G.K. responded, “I want her to always be my mom, but I want to live with my grandmother.” G.K. responded that he would feel “mad” if his mom wasn’t his mom anymore. After further questioning, G.K. stated: “I will be ok living with my mom or my grandmother.”
Upon questioning from his own counsel, G.K. confirmed that mother never took him to school or to the doctor. He also confirmed that he was happy at his grandmother’s house.
Following the testimony, mother’s counsel argued that it didn’t believe the court “could rightfully terminate the mother’s parental rights when the minor is on the stand crying stating that he loves his mother.” DCFS responded that mother’s counsel had proposed an “inappropriate hypothetical to a 10-year old.” In addition, there was no showing that G.K.’s grandmother would sever his relationship with his mother. It was in G.K.’s best interest to have stability. G.K.’s attorney joined with county counsel, noting that living with mother was not an option for the child, so it was unfair to suggest it to him.
The court found, by clear and convincing evidence, that it was likely that G.K. would be adopted, and that no exception existed. The court further found that it would be detrimental to the child to be returned to mother. Parental rights were terminated and G.K. was declared free from the care, custody and control of his parents pursuant to section 366.26. The court stated that adoption was the permanent plan for G.K.
At this point in the proceedings, mother was apparently crying in court, as the court then stated: “Ma’am, I am going to tell you to stop. Those tears do not move me, ma’am.”
Mother’s counsel asked to state an objection, to which the court replied, “We are done.” Mother’s counsel continued, noting for the record that “the minor was crying after the court terminated parental rights.”
Mother filed a notice of appeal from the court’s orders on July 12, 2010.
DISCUSSION
I. Mother’s section 388 petition
A. Applicable law and standard of review
Section 388, subdivision (a) provides, in pertinent part, that a parent may:
“... upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court previously made....“
If it appears in the best interest of the child, a hearing on a petition brought under section 388 shall be held. It is the petitioner’s burden to show, by a preponderance of the evidence, that there are changed circumstances and that the proposed change of order is in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
The section 388 petition must be considered in the context of the dependency proceedings as a whole. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) When a section 388 petition is filed after reunification services have been terminated, the juvenile court’s overriding concern is the child’s best interests. (Stephanie M., supra, 7 Cal.4th at p. 317.) The parents’ interests in the care, custody and companionship of the child are no longer paramount and the focus shifts to the needs of the child for permanency and stability. (Marilyn H., at p. 308.)
The juvenile court’s determination as to whether an order should be modified pursuant to section 388 is reviewed for an abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 317.) We will not disturb a discretionary ruling unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd decision. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456.)
B. The juvenile court did not err in denying mother’s section 388 petition
Mother argues that she has presented a legitimate and material change of circumstances, orchestrated by her own initiative. Mother states that she completed her entire program and tested negatively twice a month for a year. Mother blames G.K.’s paternal grandmother for the irregularity of mother’s visitation with G.K., indicating that Dorothy H. “actively controlled and sometimes denied visitation with G.K.”
Mother cites In re Hunter S. (2006) 142 Cal.App.4th 1497, 1507 (Hunter S.), as a comparable case. In Hunter S., a dependency petition was filed after the mother fled from police and left her five-year-old son alone in a filthy hotel room. Hunter was placed with his grandmother, and the mother made substantial progress. Less than a year later, Hunter was returned to his mother, but a month later she was incarcerated on felony charges. (Id. at pp. 1500-1501). While mother made some progress completing programs in prison, the court terminated reunification services and set a section 366.26 hearing because mother’s incarceration prevented her from caring for Hunter. After her release, despite the court’s visitation order, mother did not visit with Hunter apparently because he did not want to see her. The mother raised lack of visitation in her appeal of the juvenile court’s denial of her section 388 petition. (Id. at p. 1503.) Despite noting a change in mother’s circumstances, the trial court had concluded that reunification was not in Hunter’s best interests.
The Court of Appeal reversed, holding that the trial court erred in not enforcing the visitation order, and that Hunter should not have been allowed to control whether or not he visited with mother. The court held that the trial court effectively denied the mother any postreunification opportunity to repair her relationship with her son. (Hunter S., supra, 142 Cal.App.4th at p. 1507.)
The matter before us is distinguishable. The Hunter S. court specifically found that the mother had shown a substantial change of circumstances. (Hunter S., supra, 142 Cal.App.4th at pp. 1503-1504.) Here, the basis of the court’s denial was the court’s finding that mother had not met her burden of proof on the issue of changed circumstances. Mother’s failure to visit with G.K., and the reasons for this failure, were not relevant to the court’s decision.
Substantial evidence supported this decision. The progress reports mother provided were from the previous year, and she had not provided any certificates of completion for her programs. Apart from stating that she had complied with the court’s orders, mother’s petition provided no further indication that she could provide stability for G.K. in the future. Counsel for DCFS pointed out that at the time of the hearing mother still did not have stable housing.
Mother argues that the delay between the filing of her section 388 petition and the hearing was entirely the fault of DCFS. Mother argues that she suffered negative implications from this as DCFS faulted mother for not seeking additional services during the 12-month period of delay. However, the trial transcript reveals that DCFS was not faulting mother for not taking advantage of the delay, simply pointing out that mother had not provided certificates of completion for her programs.
Because the juvenile court determined that mother had not met her burden of showing changed circumstances, the court did not reach the issue of whether a change in the court’s order would be in the best interests of G.K. However, we find that substantial evidence supported a determination that mother had not met her burden of proving this element either. G.K. had been in his grandmother’s care since he was two months old, and he was 10 years old at the time of the hearing. Reports from DCFS indicated that mother’s missed visits with G.K. were due to mother’s trips out of town, not inappropriate intervention by Dorothy H. Further reunification services, with an ultimate goal of a home of parent-mother order, did not serve G.K.’s interest in permanence and stability.
We find no error in the trial court’s decision denying mother’s section 388 petition.
II. Termination of mother’s parental rights to G.K.
A. Applicable law and standard of review
Section 366.26, subdivision (c)(1), provides that if the juvenile court determines that it is likely that a child will be adopted, “the court shall terminate parental rights and order the child placed for adoption.” (Italics added.) This statute provides “a strong preference for adoption as the most permanent, and thus the best, plan for a dependent child.” (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799.) Limited exceptions to this result exist where it is found that termination would be detrimental to the child. Under one such exception, the juvenile court may decline to terminate parental rights if the parent has maintained regular visitation with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).)
Under this exception, the parent has the burden of showing “either that (1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental relationship would be detrimental to the child. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.).)
As the Angel B. court explained, mother must defeat a strong legislative preference for adoption:
“To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent. [Citation.]”
(Angel B., supra, 97 Cal.App.4th at p. 466.)
Courts have applied the substantial evidence test in evaluating whether a parent has established an exception to the legislative preference for adoptive planning. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Under this test we must uphold the juvenile court’s order if there is any substantial evidence, contradicted or uncontradicted, that supports the court’s order, resolving all conflicts in support of the determination and indulging all legitimate inferences in favor of the order. We may not substitute our deductions for those of the trier of fact. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
Other courts have applied the abuse of discretion standard to a juvenile court’s order under section 366.26, subdivision (c)(1)(A). (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) However, “[t]he practical differences between the two standards of review are not significant.” (Ibid.)
B. Mother failed to demonstrate that the parent-child beneficial relationship exception applied
Mother’s argument that the parental relationship exception to termination of parental rights applies focuses on G.K.’s testimony at the hearing on July 7, 2010. Mother argues that through his oral testimony, G.K. showed that he really wanted and needed his relationship with his mother to continue and would be devastated if his relationship with mother ever ceased. Mother argues that G.K. showed he is strongly bonded with mother despite the fact that he did not live with her. Mother cites In re Julian L. (1998) 67 Cal.App.4th 204, 208-209 for the proposition that a juvenile court’s marginalization of a child’s wishes is reversible error.
Because of the strong bond between G.K. and mother, mother argues, termination of parental rights was not warranted. Instead, legal guardianship would have provided G.K. with everything he needs.
Mother cites two cases in support of her argument. The first, In re Michael D. (1996) 51 Cal.App.4th 1074, involved a petition brought under section 388. Michael was placed with his paternal grandmother when he was two years old because his mother’s boyfriend was physically abusing him. By the time of the hearings on the section 388 petition, Michael was five years old. Mother had broken off her relationship with the abusive boyfriend, had completed parenting classes, drug counseling, and testing, was raising an infant son who had not been detained by DCFS, and was engaged to marry a naval signalman, with whom she and her infant son lived on a naval base. Under these circumstances, the juvenile court found that mother had carried her burden of proving changed circumstances. (Id. at p. 1080.) The juvenile court noted that “Michael’s repeated comments he wanted to be with his mother represented very strong evidence that allowing the mother to regain custody was in his best interest.” (Id. at p. 1081.)
In contrast, G.K.’s testimony at the July 7, 2010 hearing does not amount to “repeated comments” such as those that occurred in Michael D. Throughout the pendency of the proceedings, G.K. had consistently informed DCFS that he wanted to live with his grandmother. G.K.’s attorney urged termination of parental rights, a position which was undoubtedly based on his understanding of G.K.’s wishes. At the hearing, G.K. was put in an extremely difficult position by being forced to testify in front of his mother. While he initially testified that he wanted to live with his grandmother, mother’s counsel’s repeated questions regarding his mother upset him. When counsel asked: “How would it make you feel if your mom wasn’t your mom anymore?” G.K. responded, “Mad.” After further difficult questions, G.K. relented: “I will be okay living with my mother or my grandmother.” Thus, in contrast to the child’s statements in Michael D., G.K.’s indication that he would “be okay” living with his mother was a result of manipulative and inappropriate questioning of a 10-year-old child.
In re Scott B. (2010) 188 Cal.App.4th 452, is also distinguishable. Scott was a child with special needs. He lived with his mother and his maternal grandmother, who was aggressive and abusive towards Scott. His mother was unable to care for him, and he was placed in foster care. (Id. at p. 456.) Scott adjusted well to foster care but indicated he would like to live with his mother again. Throughout his placement in foster care, Scott continued to ask when he could return to his mother’s care. (Id. at p. 458.) Scott made up a story and told his friends and teacher that he was returning to his mother’s care. (Id. at p. 460.) When Scott’s foster mother indicated she was interested in adoption, DCFS recommended terminating parental rights. (Id. at p. 461.) Scott became adamant that he did not want to be adopted by anyone, and threatened to run away if he were adopted. DCFS therefore requested more time to investigate whether adoption was the best permanent plan for Scott. (Id. at p. 464.) Significantly, the mother had missed only one scheduled visit with Scott, and she maintained her parental role by monitoring and redirecting his behavior and progress both at his foster parent’s home and at school. Ultimately, the juvenile court terminated parental rights, noting that while mother did maintain a parental relationship with Scott, the benefits of Scott’s relationship with mother did not outweigh the benefits he would derive from a permanent home. (Id. at p. 468.) The Court of Appeal reversed, holding that application of the parent-child relationship exception militated against termination of parental rights in that case. (Id. at p. 471.)
The facts before us are different. Mother had not demonstrated that she could meet G.K.’s need for a parent. While G.K. testified that he watched television with mother during his weekend and holiday visits with her, mother had never taken on a parental role towards G.K. G.K. had lived with his grandmother since he was two months old. He testified that it was his grandmother, not his mother, who had always taken him to school and to the doctor. Unlike the mother in Scott B., G.K.’s mother maintained a relationship with him which was more like that of a friendly visitor than a parent.
In addition, G.K.’s single comment that he would “be okay” living with mother does not amount to the kind of consistent, adamant requests such as those that the child exhibited in Scott B. As set forth above, G.K. was, on a single occasion, placed in a very difficult situation by being forced to testify in front of his mother. At that time, he did what most children in that situation would do--he wavered from his consistent position that he wanted to live with his grandmother, who had parented him since infancy.
Mother did not make the required showing that she maintained regular visitation with G.K. or that G.K. would significantly benefit from continuing the parental relationship. Mother failed to overcome the strong legislative preference for adoption which exists to provide adoptable children such as G.K. with permanence and stability. The juvenile court did not err in terminating parental rights.
DISPOSITION
The orders are affirmed.
We concur: DOI TODD, Acting P. J. ASHMANN-GERST, J.