Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County No. CK68965, Jacqueline Lewis, Juvenile Court Referee.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
EPSTEIN, P. J.
Mother Blanca J. appeals from orders denying two petitions she had filed under Welfare and Institutions Code section 388 and terminating parental rights over her son Jacob C. We find that the juvenile court did not abuse its discretion in denying the petitions, and that substantial evidence supported the termination of parental rights.
All unspecified statutory references are to the Welfare and Institutions Code.
The orders are affirmed.
FACTUAL AND PROCEDURAL SUMMARY
Jacob came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in June 2007, seven days before his third birthday. DCFS had received allegations that mother was using illegal drugs. Mother admitted to DCFS that she had used methamphetamine on and off for the past three years, and admitted she last used it three days before. DCFS filed a petition pursuant to section 300, alleging that mother was incapable of providing proper care because of her drug use. A first amended petition, as amended and sustained, alleged an additional count that mother and father had a history of engaging in violent altercations in Jacob’s presence. Jacob was placed in DCFS custody. After first being placed with the legal guardian of his half sibling, and then in a foster home, Jacob was placed in a second foster home with Gloria and Paul S. in August 2007.
At the time the original section 300 petition was filed, Jacob’s father’s whereabouts were unknown. Jacob’s father died during the pendency of the proceedings.
At a hearing in September 2007, the juvenile court declared Jacob a dependent of the court. Reunification services were ordered for mother. She was ordered to participate in drug rehabilitation with random drug testing, parent education, and individual counseling. Over the following months, mother visited Jacob weekly, and visits were liberalized to unmonitored six-hour visits. Mother tested negative for drugs and alcohol on 23 occasions, and missed one test. She enrolled in a rehabilitation program but her attendance was sporadic.
At a six-month review hearing in January 2008, the court authorized weekend and overnight visits. At a hearing the next month, the court found a substantial probability that Jacob would be returned to mother, as mother had regularly visited him, and had made progress resolving the problems leading to his removal. Jacob remained placed with Gloria and Paul S.
Over the following six months, mother completed her court ordered programs, including courses on relapse prevention and parenting education. But she missed all drug tests during this period. Her visits with Jacob were sporadic and her phone calls inconsistent. In May, July, and August 2008, mother tested positive for methamphetamine or alcohol, and DCFS received reports that mother was using heroin. DCFS advised the termination of mother’s reunification services. In September 2008, the court terminated reunification services and set a section 366.26 hearing.
DCFS was concerned that Jacob was reacting negatively to his ambiguous relationship with his mother and other caretakers. Although Gloria S., Jacob’s foster mother, provided a warm and nurturing environment for Jacob, she told DCFS she did not want to become an adoptive parent or legal guardian. As of February 2009, mother had not visited Jacob since August or September of 2008; she claimed this was due to DCFS’s failure to respond to her requests for visitation. During this time, mother called Jacob on the telephone, and told him she loved and missed him, and he would return home soon. Jacob seemed unaffected by these statements. In June 2009, the juvenile court ordered monitored visits for mother every other week. Mother visited Jacob twice, and cancelled one visit. In August 2009, she told DCFS she was re-entering a drug treatment program and did not know when she could resume visits.
That month, mother filed a section 388 petition requesting custody or more time to reunify with Jacob. She claimed that she was sober, stable, and visited him as often as possible. The juvenile court ordered that an Evidence Code section 730 evaluation be done to help the court determine placement. Jacob told the evaluator that he wanted to live with Ken R. and Michelle S., who were friends of Gloria and Paul S. and had known Jacob since he was placed with them. Ken and Michelle had expressed an interest in adopting Jacob. The evaluator found that placing Jacob with his mother would be the riskiest of the available options, and recommended placement with Ken and Michelle.
At a hearing on her section 388 petition in October 2009, mother stated that she had last used drugs in March 2009. She had attended an outpatient program from April to mid-July 2009, but was unable to test for drugs for financial reasons. The juvenile court deemed mother’s progress as only the “beginning stages of recovery, ” and denied the petition.
Mother filed a second section 388 petition later that month, requesting custody or further reunification services. She claimed that she was living in a recovery home and would be employed in the next few weeks. In September of 2009, mother had tested negative for drugs once, negative for alcohol once, and negative for drugs and alcohol once. The court set the matter for hearing in November 2009, and continued the section 366.26 hearing to that date.
The juvenile court denied the second section 388 petition, finding insufficiently changed circumstances, and that Jacob’s interests would not be promoted by granting mother custody or further reunification services. The court then terminated parental rights. Mother appeals from the orders.
DISCUSSION
I
Mother originally appealed from the order terminating parental rights, and later filed two amended notices of appeal, each seeking review of one of the orders denying her section 388 petitions. DCFS contends that mother failed to timely notice an appeal from the denial of the first section 388 petition because notice of that appeal was not given until January 2010.
The denial of a section 388 petition is an appealable order, and a parent’s notice of appeal is entitled to our liberal construction. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450-1451.) Because respondent is not prejudiced by our consideration of the denial of both petitions, we deem the timely notice of appeal to include the additional ruling. (Ibid.)
II
We discuss the orders denying the two section 388 petitions jointly, as the parties have done. Mother argues the juvenile court abused its discretion in denying the petitions because the evidence showed a change in circumstances justifying further reunification services or custody of Jacob, and that further reunification services would be in Jacob’s best interest. We do not agree.
Section 388 provides, in pertinent part: “(a) Any parent... having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing... to set aside any order of court previously made.... [¶]... [¶] (d) If it appears that the best interests of the child may be promoted by the proposed change of order... the court shall order that a hearing be held....” In ruling on a section 388 petition, a juvenile court determines whether the moving party demonstrated by a preponderance of the evidence that there was new evidence or a substantial change of circumstances. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The moving party must also show that the undoing of the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.... The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.... [¶] [T]he [statutory] scheme provides a means for the court to address a legitimate change in circumstances while protecting the child’s need for prompt resolution of his custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) We consider section 388 petitions in the context of the entire dependency proceedings. (Id. at p. 307.)
Mother argues that substantial changed circumstances occurred between the termination of reunification services in September 2008 and the filing of her petitions approximately one year later. Citing In re Casey D. (1999) 70 Cal.App.4th 38, motherclaims that her eight months of sobriety and completion of relapse prevention and parenting courses constituted changed circumstances. (See id. at p. 49 [finding that father’s nine months of sobriety constituted changed circumstances under section 388 but denying petition because change in placement would not be in child’s best interest].) Mother’s recent efforts, while commendable, do not constitute substantial changed circumstances. During the reunification period, mother initially had tested negative for drugs in 2007, but relapsed into drug use in 2008. She testified that she had last used drugs in March of 2009, but the only drug tests verifying her claims of sobriety were completed in September 2009. The juvenile court did not abuse its discretion in finding mother did not meet her burden of showing a substantial change in circumstances under section 388.
More fundamentally, it does not appear to be in Jacob’s best interests to undo the prior order. Mother’s serious drug abuse problem led to Jacob’s detention. She was unable to resolve that problem during the reunification period or after. As reported in the Evidence Code section 730 evaluation, Jacob’s bond with his foster parents and with Ken and Michelle was stronger than that with his mother. Jacob had been in the dependency system for over two years when mother filed her section 388 petitions; his best interest was in a prompt resolution of his custody status. (See In re Kimberly F., supra, 56 Cal.App.4th at pp. 530-532 [discussing factors used to determine child’s best interest in context of a section 388 petition].) There was no abuse of discretion in the denial of the section 388 petitions.
III
Mother argues the juvenile court erred in terminating her parental rights over Jacob. We disagree and affirm the order.
At a section 366.26 hearing, a juvenile court must select and implement a plan for a dependent child; the plan preferred by the Legislature is adoption. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) If a child is likely to be adopted, the juvenile court must terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (c)(1).) Section 366.26, subdivision (c)(1)(B) authorizes the juvenile court to avoid the termination of parental rights to an adoptable child if it finds a “compelling reason for determining that termination would be detrimental to the child [because]... [¶]... [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing that relationship.” (Ibid.)
In this case, the juvenile court found that Jacob was adoptable. Mother does not challenge this finding, but argues that the section 366.26, subdivision (c)(1)(B) “benefit” exception to termination of parental rights applies. We review a juvenile court’s ruling on whether the so-called benefit exception applies to termination of parental rights pursuant to section 366.26 for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) “[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference, and resolving all conflicts in support of the order. [Citations.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Mother bore the burden to show both that she maintained regular visitation and contact with Jacob, and that he would benefit from continuing a relationship with her. (In re Zeth S. (2003) 31 Cal.4th 396, 412, fn. 9.) Mother claims that her visits with Jacob were consistent, but our review of the record shows they were sparse. She visited Jacob 10 times in 2007 and eight times in 2008. It appears that there was a lack of communication between mother and DCFS following the termination of reunification services in August 2008 which inhibited mother’s visitation thereafter. We need not resolve whether mother met her burden of showing regular and consistent visitation, however, because we find that mother did not show that Jacob would benefit from continuing the mother-child relationship.
“When contesting termination of parental rights under the [benefit 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.... [¶] 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.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “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.” (Ibid.) “To overcome the strong policy in favor of terminating parental rights and to fall within [the purview of the benefit exception], the parent must show more than ‘frequent and loving contact, ’ [citation], and be more to the child than a mere ‘friendly visitor or friendly nonparent relative.’ [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)
In determining the existence of a beneficial relationship, we look to “‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs....’ [Citation.]” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) Jacob had spent more than two years of his short life in the care of someone other than mother. Although Jacob called mother “Mama Blanca” during visits, the specialist who conducted the Evidence Code section 730 evaluation found Jacob had an ambivalent attachment to mother. DCFS reported that Jacob would not react when his mother told Jacob she loved him. There is substantial evidence showing that Jacob’s interactions with mother were not those of a parent and child.
The record is clear that Jacob would benefit from the stability provided by a permanent placement. According to the evaluator, Jacob was “understandably, clearly distressed by the uncertainty in his life and choices that at his age he cannot possibly truly understand.” Yet, Jacob was cognizant of the adoptive placements under consideration, and consistently expressed a desire to be placed with Ken and Michelle, whom he had known since he was placed with Gloria and Paul S. in August of 2007. As noted by the juvenile court, the proceedings in this case were lengthy, lasting more than two years. The evaluator found that Jacob would “obviously benefit from as quick a legal resolution to his circumstances as maybe [sic] possible.” Mother argues that the anxiety Jacob suffered from being in the foster care system would be alleviated by the preservation of parental rights. But mother’s use of illegal drugs caused Jacob’s detention, and her inability to demonstrably stop using drugs led to Jacob’s continued placement in foster care. Jacob’s relationship with his mother did not outweigh his interest in stability and permanent placement that adoption would provide. The juvenile court did not err in terminating parental rights.
DISPOSITION
The orders are affirmed.
We concur: WILLHITE, J., MANELLA, J.