Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. 1181-DEP
Siggins, J.
S.B., the mother of C.M., appeals from the denial of her Welfare and Institutions Code section 388 petition for modification and termination of her parental rights. Our review of these juvenile dependency orders is limited in scope. We consider whether the trial court abused its discretion when it denied Mother’s request for additional reunification services and terminated her parental rights. We conclude it did not, and, accordingly, affirm.
BACKGROUND
I. Detention/Jurisdiction
C.M. was first removed from her parents’ custody in November 2000 when she was 17 months old, after Mother was arrested on an outstanding warrant for drug and alcohol related charges and Father was then incarcerated for driving while intoxicated. After receiving a year of reunification services, both parents made significant progress in resolving their substance abuse and housing problems, so that C.M. was returned to their custody in November 2001, and the dependency action was dismissed.
On March 15, 2006, C.M. and her 13-year-old half-sister were again removed from the parents’ home and detained after Mother, while intoxicated, assaulted both children. The Sonoma County Human Services Department (the Department) filed a new dependency petition that alleged C.M. came within the jurisdiction of the juvenile court due to Mother’s physical abuse of C.M. and her half-sister, Mother’s extensive criminal history (including numerous arrests for child abuse and endangerment), and neglect by both parents as a result of their substance abuse.
A subsequent amended petition added further factual allegations concerning, inter alia, both parents’ significant history of alcohol and/or substance abuse.
The Department’s report for the jurisdictional hearing reflected the family’s extensive history with the Department. Since 1997 the Department had received 14 separate referrals for C.M. and her half-siblings due to allegations of alcohol abuse, parental incarcerations and neglect, truancy, sexual acting out between the children, squalid home conditions, and domestic violence. The report noted that Mother had addressed her substance abuse issues while under the court’s jurisdiction in the 2000-2001 dependency action, but could not maintain her sobriety after the case was dismissed. The parents were offered referrals to services and warned that it was critical for them to stabilize their situation.
At the contested detention/jurisdiction hearing, both parents submitted on the amended petition. The court found C.M. came within subsections (a), (b) and (j) of Welfare and Institutions Code section 300.
All further statutory references are to the Welfare and Institutions Code.
II. Disposition
The Department’s report for the disposition hearing stated that C.M. was placed out of county with her maternal aunt and uncle, with whom she also lived when she was first removed from home in 2000. Mother consented to the placement. Although C.M. initially told the social worker that she wanted to go home to her parents, she later said it would be better for her to live with her aunt and uncle.
The disposition report reflected the social worker’s concern that Mother “is not ready to make a meaningful commitment to her recovery.” Mother missed four of her twice-weekly visits with C.M. in April. She had not yet entered a residential program although program space was available, and had not acted on her referral for outpatient treatment or met consistently with her social worker. Both parents failed to attend a scheduled appointment with the social worker to check the condition of their home. The social worker was therefore unable to inspect the home’s interior, but the exterior appeared cluttered, there were flies congregating in trash strewn around the front entrance, and a bad smell emanated from the property. The home did not appear to be safe.
The Department recommended that both parents receive reunification services. Mother was to participate in mental health counseling, an inpatient substance abuse program, parenting education, and substance abuse testing.
At the disposition hearing, both parents submitted on the report. The juvenile court found by clear and convincing evidence that reasonable services had been provided and concluded that removal from the parents’ custody was necessary. C.M. was placed out of county with the maternal aunt and uncle. The court also found that the parents’ progress toward alleviating or mitigating the circumstances that necessitated placement was “non-existent.”
III. Six-Month Review
In its report prepared for the six-month status review, the Department recommended an additional six months of reunification services be provided to both parents. The social worker reported little contact with either parent and only one face-to-face meeting with Mother, from whom she had not heard for some six weeks. The report noted Mother’s limited compliance with the case plan and her efforts were difficult to confirm due to her lack of contact with the Department. As stated in the report, “The only way to communicate with the mother is through voice mail or letters. Thus far, [Mother] has not been good about responding to either type of correspondence. The social worker has not been able to ask [Mother] to drug test except for one time during the review period.” Mother had been referred to individual therapy, but there was no indication that she was participating in treatment. Mother completed a 31-day residential program, but the social worker was unable to verify whether she engaged in recommended outpatient recovery services after she left the program. Mother made herself available for only one random drug test, on August 31, 2006, during the six-month period.
The report described a July 16, 2006, incident when Mother’s two older sons told police that she used “inappropriate, physical discipline with each of them” during a visit at her home. Mother had come home intoxicated and became angry when her sons confronted her about her drinking. The responding officer believed Mother was under the influence of methamphetamine. The boys were removed and later released to their father’s custody. Mother faced charges as a result of this incident, and entered no contest pleas to willful cruelty to a minor and resisting arrest. She was placed on 36 months probation. Mother was unemployed and living with C.M.’s father.
C.M. was described by the social worker as a “delightful,” “bright, charming girl,” who was said to be thriving in the care of her aunt and uncle in Fresno. According to the social worker, C.M. “obviously loves her parents and siblings in Santa Rosa but seems to be doing remarkably well considering the circumstances.”
At the six-month review hearing, both parents again submitted on the report. The juvenile court adopted the Department’s recommendation that the parents be provided an additional six months of reunification services. At the same time, it observed that their reunification efforts were sorely inadequate, and warned them that their parental rights would be terminated if the same lack of participation were shown at the 12-month review.
IV. Twelve-Month Review
In its report for the 12-month review hearing, the Department recommended termination of reunification services for both parents. According to the report, Mother had attended all authorized visits with C.M., but continued to miss appointments with her social worker Between November 15, 2006, and February 15, 2007, Mother once tested positive for alcohol and twice tested positive for methamphetamine. Although her contact with the Department had improved, she was still difficult to reach and poor at returning messages. Her attendance at her substance abuse program was sporadic and she failed to provide proof that she participated in any 12-step meetings. The social worker had no contact with Mother following her positive test for methamphetamine on February 15, 2007, despite repeated attempts to contact her.
The social worker reported that C.M. enjoyed the time she spent with her parents and looked forward to their visits. The social worker noted that whenever she met with the parents “they each presented as humbled and articulated that they were accepting of CPS assistance. What is of great concern however, is [Mother’s] deep-rooted denial about her addiction to drugs and alcohol.” According to a psychological evaluation, the parents’ “chaotic and labile” dynamic left them “in perpetual conflict and confusion about their relationship and the children in an inconsistent, unsupportive and clearly dysfunctional family system which is meeting no ones [sic] real needs.”
The Department concluded that there was no substantial possibility that parent-child reunification could occur within six months. Accordingly, it recommended that the court terminate reunification services and set a permanency planning hearing pursuant to section 366.26.
Both parents objected to the recommendation and requested a settlement conference. The case did not settle and a contested hearing was set for July 6, 2007. Mother did not appear at the hearing, but her counsel informed the court that Mother was satisfied with C.M.’s placement and had decided not to contest the termination of reunification services. The court terminated reunification services to both parents and set the case for a section 366.26 hearing.
V. Section 366.26 Hearing
The report for the section 366.26 hearing recommended termination of parental rights and a permanent plan of adoption. The maternal aunt and uncle were very committed to C.M. and wished to adopt her. A state adoption specialist reported that, although C.M. clearly loves her parents and sometimes cried when visits ended, she would stop crying on her return home and seemed happy to see her prospective adoptive parents. C.M. responded positively to her aunt and uncle and the security of their home and family. According to the report, she was thriving emotionally and academically in the foster home, had a loving and bonded relationship with her aunt and uncle, and looked to them as her psychological parents. She enjoyed positive relationships with her aunt and uncle’s two teenage daughters and a “very loving and positive” relationship with her maternal grandmother, who was also living in the adoptive home. A state adoptions worker reported that C.M. understood she could not live with her biological parents, had adjusted to having short visits with each parent, and seldom expressed a desire to return to either parent’s home to live.
Father submitted on the report at the hearing. Mother indicated her intention to seek modification under section 388 to reinstitute reunification services, and requested a settlement conference. The court scheduled a settlement conference, but after the parties were unable to reach a settlement the matter proceeded to a joint section 388 and section 366.26 hearing.
Mother’s section 388 petition represented that she had completed a residential substance abuse program, was currently living in a structured “sober living environment,” paying child support, and participating in outpatient programs, weekly counseling, and Alcoholics Anonymous (AA) meetings. She was on a waiting list for housing that allowed children and had identified a school for C.M. to attend. Mother expressed her belief that she had a parent-child relationship with C.M. and believed C.M. wanted to live with her.
Mother was absent when the hearing began. The juvenile court informed those present that the section 388 satisfied the prima facie requirement for an evidentiary hearing, but in the absence of any new evidence it denied the petition. Although it commended Mother’s progress, the court found by clear and convincing evidence that C.M. was likely to be adopted and that termination of parental rights would not be detrimental to her. The court terminated parental rights and ordered a permanent plan of adoption. At that point, however, Mother arrived in court. The court reopened the hearing to allow her to present evidence on both the modification petition and termination of her parental rights.
Mother testified that she was eight months into a one-year substance abuse program that included three months of inpatient treatment at the Women’s Recovery Services program. She said she attended between five-to-nine AA meetings per week, weekly after-care meetings at the Women’s Recovery Services program, and two appointments per week at the Orenda outpatient program. Mother reported that she was on step four of her 12-step program and recently started leading weekly meetings. She testified that she had been sober for eight months, since May 2007, and since August 2007 was living in transitional housing that required a nightly breathalyzer test, meetings, chores and a curfew. Mother had not tested positive for alcohol since May 2007, when she started the residential program. She explained that she was unable to start inpatient treatment during the reunification period because she “didn’t know how to leave” C.M.’s seriously ill father, but that she finally did so “to get sober for my kids.”
Mother testified that C.M. would be better placed with her than with the aunt and uncle because “I’m her mother and she knows me as her mother and we have a bond as mother and daughter” and because “I could give her things that she already knows that’s coming from what I’ve raised her with of who she is. I allow her to be who she is.” Mother said she felt C.M. would be happier living with her, and that she would continue to allow her to visit with the aunt and uncle whenever she wanted. Mother intended to participate in counseling with C.M. to help her transition back to Mother’s care after almost two years.
Mother said she was on a waiting list for two transitional housing options that accommodate children, and she thought she could arrange to have C.M. in her care within a month of the hearing. However, she did not know how long she and C.M. would be able to remain in transitional housing. Mother was living on unemployment benefits and looking for a job she could do during school hours after her benefits ran out.
Mother discussed her experience as a parent and how C.M.’s four half-siblings were frequently shuffled between her and their father over the past six years due to Mother’s substance abuse and frequent incarcerations. Mother had not spoken with her oldest child in over three years. As for C.M., Mother testified she felt she was the “best mom that I can be now. Before I was not the best mom I could be.”
Mother testified that she started drinking when she was 13, abused alcohol since her late 20’s, and used methamphetamine in the past year. Although she had been clean and sober at many points in her life, she could not recall the longest period of time that she could go without alcohol or methamphetamine when she was not in a structured residential or “sober living environment” program. The eight months preceding the hearing was the longest period of sobriety she could remember since she started abusing alcohol. Mother said her drinking stemmed from physical pain and abusive relationships, neither of which were presently issues for her.
Mother said she failed to utilize reunification services because she did not understand how therapy could help her gain the tools she needed to leave C.M.’s father and take care of herself. She did not discuss this with her social worker because she “tried to get ahold of her over the phone and it was hard to talk to her.”
The court found that Mother had not demonstrated changed circumstances or that modification was in C.M.’s best interest. Accordingly, it denied the section 388 petition. As to the section 366.26 issues, the court rejected Mother’s contention that terminating her parental rights would be contrary to C.M.’s best interest. The court once again adopted the findings and order proposed by the Department, thereby terminating parental rights and freeing C.M. for adoption. This appeal followed.
DISCUSSION
I. Denial of the Section 388 Petition
Mother contends the court erred when it denied her section 388 petition for modification. Specifically, she claims that she sufficiently addressed her history of alcohol abuse to warrant an additional two months of reunification services. We review this claim under an abuse of discretion standard and will disturb the juvenile court’s ruling only if it demonstrates clear abuse of the discretion reposed in the juvenile court. (In re Jasmon O., supra, 8 Cal.4th at p. 415.)
Mother is incorrect in contending that we review the juvenile court’s order de novo because the relevant facts are not disputed. Neither of the cases she cites for this proposition, In re Fernando M. (2006) 138 Cal.App.4th 529, 535 and Kennedy/Jenks Consultants, Inc. v. Superior Court (2000) 80 Cal.App.4th 948, 960, concern review of a section 388 petition, which, our cases firmly establish, is addressed to the trial court’s sound discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) As with most custody determinations, the considerations involved in assessing a section 388 petition brought on the eve of a section 366.26 hearing, notably the child’s best interests and his or her need for permanency and stability, inherently call for the exercise of the court’s discretion. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [abuse of discretion is traditional for custody determinations].) Such an assessment is fundamentally different from the statutory interpretation that warranted de novo review in Fernando M. or the application of a statute to undisputed historical or physical facts at issue in Kennedy/Jenks.
“A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Where a section 388 petition is brought after the termination of reunification services, the focus shifts to the child’s needs for permanency and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) “In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
Mother did not meet her burden to show either changed circumstances or that it would be in C.M.’s best interests to reinstitute reunification services. Mother started drinking when she was 13 years old and had abused alcohol for at least the past 10 years. The record reveals her tragically consistent pattern of severe alcohol abuse that led to numerous episodes of child neglect, abuse, and Mother’s incarceration. Her prior attempts at sobriety ended in relapse. To this sad pattern of failure, Mother recently added methamphetamine use. Although she may have been sober for eight months by the time of the section 366.26 hearing, three of those eight months were in an in-patient program followed by five months in a structured sober living environment. Mother’s recent efforts are commendable, but there was little from which the court could conclude Mother achieved the “profound and lasting change” argued in her brief to this court. There is little or no evidence of Mother’s ability to remain stable and sober outside of a controlled environment, and subject to the rigors of child-rearing while finding and maintaining housing and employment. “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. [Citation.] ‘ “[C]hildhood does not wait for the parent to become adequate.” ’ ” (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
There was also compelling evidence before the juvenile court that C.M. was happy and thriving with her maternal aunt and uncle, who were willing to support continuing Mother’s relationship with C.M. Mother emphasizes evidence of the loving bond between her and C.M., and her recent progress toward addressing the problems that led to the dependency. But, as a reviewing court, we cannot substitute our judgment for the juvenile court’s assessment of the factors relevant to the best interest calculus except in those rare cases where the juvenile court “ ‘ “has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.) The juvenile court acted firmly within the limits of its discretion when it denied Mother’s petition to reinstitute reunification services. Accordingly, we affirm.
II. Termination of Parental Rights
Mother contends the court erred when it declined to find that her relationship with C.M. was sufficiently beneficial to prevent termination of Mother’s parental rights. We will also review this finding for abuse of discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
We noted in Jasmine D. that, while some courts review a juvenile court’s beneficial relationship ruling under the substantial evidence standard, “[t]he practical differences between the two standards of review are not significant.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Once a child is adjudged a dependent of the juvenile court, section 366.26 specifies that parental rights may be terminated and the child may be placed for adoption. Section 366.26, subdivision (c)(1)(B)(i), provides an exception to the termination of parental rights when “[t]he court 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.” In order to invoke this exception, the parent has the burden of proving that termination would be detrimental to the child. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) “To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent” such that the child would be greatly harmed by terminating parental rights. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229; In re Helen W. (2007)150 Cal.App.4th 71, 80-81; In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) Moreover, “The juvenile court may reject the parent’s claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption.” (In re Jasmine D., supra, at p. 1350.) Because a section 366.26 hearing occurs only after the court has repeatedly determined the parent cannot meet the child’s needs, only in extraordinary cases will preservation of the parent’s rights prevail over the Legislature’s preference for adoption. (Ibid.)
Mother urges us to reject the many cases that require the parent to demonstrate that he or she occupies a parental role to overcome the preference for adoption, which she contends misconstrue the plain meaning of the statute and undermine legislative intent. We decline to do so for the reasons articulated by Justice Parilli in In re Jasmine D., supra, 78 Cal.App.4th 1339.
We do not question the sincerity of Mother’s wish to raise and care for her child. Nor do we underestimate the bonds of love and affection between mother and daughter. But, “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. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Although Mother has made laudable efforts toward dealing with her substance abuse, it is not at all evident that, after so many years of substance abuse and prior failed attempts at sobriety, she is now capable of and ready to resume a parental role. On the other hand, the uncontradicted evidence shows that C.M. is thriving with her prospective adoptive parents, who are Mother’s biological relatives and who support C.M.’s continued relationship with her mother. On this record, we cannot say that the trial court abused its discretion when it found the beneficial relationship exception in section 366.26, subdivision (c) does not apply
Mother’s reliance on In re S.B. (2008) 164 Cal.App.4th 289 is misplaced. There, the court found that a parent proved the beneficial relationship exception where he fully complied with his case plan and was unwavering throughout the dependency process in seeking treatment for substance abuse and combat-related posttraumatic stress disorder. (Id. at pp. 294, 300-301.) On that record, the court found the only reasonable inference was that the child would be greatly harmed by the loss of her significant, positive relationship with her father. (Id. at p. 301.) Unfortunately, the same cannot be said here. Despite initial progress after a year of services when C.M. was an infant, Mother’s substance abuse problems again overcame her ability to be a fitting parent at the time of the current dependency action. Her subsequent history of poor and non-compliance with services, positive drug tests, chaotic living conditions and continued addiction issues led tragically to the termination of reunification services at the 12-month review hearing. Given her dubious history, the recency of her subsequent attempts to address her substance abuse, and the uncertainty of her ability to maintain sobriety in the future, Mother’s case is factually distinguishable from the exemplary conduct of the parent in In re S.B. Similarly, the mother in In re Amber M. (2002) 103 Cal.App.4th 681, 690 “did virtually all that was asked of her to regain custody,” and there was substantial evidencethat severing the parent’s relationship with the child would be detrimental. We cannot conclude that the same holds true here.
Mother protests that “there was no current AND relevant professional assessment of the minor’s emotional or psychological condition and there was no testimony nor evidence from the social worker on this issue.” But it was Mother’s burden, not the Department’s, to show the existence of a parental bond whose termination would be detrimental to C.M. The court did not abuse its discretion when it rejected the beneficial relationship exception.
DISPOSITION
The orders denying the section 388 petition and terminating parental rights are affirmed.
We concur: McGuiness, P.J., Jenkins, J.