Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Super. Ct. No. DP012514, Caryl A. Lee, Judge. Affirmed.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
ARONSON, J.
Amber H. (mother) appeals from the order of the juvenile court terminating her parental rights to her son, K. H., who is now two years old. (Welf. & Inst. Code, § 366.26; all further statutory references are to this code.) Mother contends the juvenile court erred (1) by rejecting her modification petition (§ 388) without an evidentiary hearing, (2) by finding K. H. adoptable though Orange County Social Services Agency (SSA) had not yet completed a home study on the paternal grandparents, his prospective adoptive parents, and (3) by concluding the “benefit exception” to termination did not apply (§ 366.26, subd. (c)(1)(A)). For the reasons we explain below, these challenges are without merit, and we therefore affirm the termination order.
I
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles Department of Children and Family Services detained K. H. at age three months in September 2005 after a social worker investigated reports of methamphetamine use, alcohol abuse, and domestic violence by both mother and her husband, Jordan H. (father). The police arrested the pair following a party at which they became intoxicated and physically combative with each other. The duo had left K. H. with the paternal grandparents, claiming they were going to search for new quarters after being evicted from their apartment, but instead they attended the party that ended with their arrest. The grandparents reported visiting the couple a month earlier and finding mother and father so incapacitated on methamphetamine and alcohol that they could not care for K. H. The grandparents called 911, but mother and father fled their apartment before police arrived.
Mother and father pleaded no contest to allegations of neglect based on their extensive use of alcohol and illegal drugs. (§ 300, subd. (b).) The Los Angeles County Juvenile Court sustained jurisdiction over K. H. in October 2005 and ordered that he remain placed with the paternal grandparents, where he had lived since being detained. Because mother and father had moved, separately, to live with friends in Orange County, the court transferred the matter to the Orange County Juvenile Court.
Mother’s case plan included drug counseling and testing, individual counseling, and parenting classes. The social worker had received reports mother was bipolar but failed to take her medication, leading to disturbing incidents including threats she would slit her mother’s throat and kill her dogs. The juvenile court therefore ordered mother to take her prescribed psychotropic medication and address anger management in her counseling sessions. The court also ordered mother to see a doctor to evaluate her medications. Mother had monitored visits twice per week with K. H., who was thriving in the paternal grandparents’ care. The paternal grandparents believed “‘it is best that a baby should be with [his] parents,’” but recognized mother and father could not presently care for K. H., so they agreed to do so “long term, if needed.”
Mother enrolled in a parenting and drug treatment program in November 2005, but the program terminated her for missed appointments. She informed her counselor she broke her nose in a car accident, but later admitted she received the injury in a fight at a party. She skipped her drug tests in November and December, and showed up two hours late for her Christmas day visit with K. H. In early January 2006, mother was arrested for a “hit and run DUI with injuries,” and she remained in jail until late March 2006. She gained release from jail on the condition she would immediately enroll in an inpatient drug treatment program, which she failed to do because, as she reported to the social worker, “she needed some ‘space to herself’ right now.”
On a more positive note, mother’s drug tests in April proved negative. She visited K. H. once each week that month, whereas she had only visited him once in January, once in March, and not at all in February. May brought a setback, however, as she was arrested on a bench warrant and released two days later on formal probation. She only visited K. H. once in May, according to the social worker’s report. Mother claimed she attempted to reenroll in her parenting and drug program in May and June, but could never reach her contact person. The program administrator, however, informed the social worker mother had been “disruptive,” declined to address the reasons for her referral, and therefore was denied enrollment. The social worker also received a report that when mother finally scheduled the court-ordered appointment to have her medication evaluated, she stormed out of the doctor’s office because he was running late.
Meanwhile, father had been arrested for stealing the paternal grandparents’ truck and for possession of narcotics for sale; he faced a potential prison term of 18 months. Because neither parent had made any progress on his or her case plan, the social worker recommended terminating reunification services at the six-month review date in July 2006. Noting K. H. had been in their care for almost a year and that the parents still “have difficulty caring for themselves and neither can provide for [K. H.]’s physical or emotional needs,” the paternal grandparents expressed interest in adopting him and requested de facto parent status. The juvenile court granted the grandparents’ request, terminated reunification services, and set a hearing for November 2006 to select a permanent plan for K. H. (the .26 hearing).
“‘De facto parent’ means a person who has been found by the court to have assumed, on a day-to-day basis, the role of [a] parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period.” (Cal. Rules of Court, rule 5.502(10).)
Mother had resumed drug testing after her release in May, producing “clean” results in each test, and her visitation with K. H. proved consistent and appropriate. On August 3, she enrolled again in her parenting and drug counseling program but missed all her sessions that month because she was apparently reincarcerated for an unspecified reason. Upon mother’s release from jail, she reenrolled in the program, maintaining consistent attendance, drug testing, and visitation with her son. The paternal grandparents completed the paperwork and other steps necessary for adoption, including submitting their fingerprints for a criminal background check and clearance from the child abuse registry. Father did not oppose the proposed adoption, informing the social worker “that neither [he] nor the child’s mother is capable at this point of properly caring for their son, and [he] wants his son to have a happy, stable home.”
In November 2006, before the scheduled .26 hearing, mother filed a modification petition requesting that the juvenile court reopen the reunification period and reinstate reunification services. She argued the proposed modification was “in [K. H.]’s best interest . . . because I am now clean and sober,” and because she loved him and believed she was his best possible caretaker. She relied on her participation in the parenting and drug counseling program, her drug testing, her ability to provide for K. H. through her stable work in animal training, and her stable residence in a condominium owned by her mother. The juvenile court recognized mother had made progress but denied a full evidentiary hearing on the petition for lack of a prima facie showing the circumstances had changed sufficiently that reopening the reunification period would be in K. H.’s best interests. The court postponed the .26 hearing to January 2007.
Mother filed a second modification petition on January 19, 2007, again seeking reinstatement of reunification services, plus increased visitation. The only new information arising since the court denied her initial petition was that mother had entered the third phase of her drug treatment classes, concerning relapse prevention, and she now visited with K. H. at her residence rather than an SSA facility. The visits, two hours twice a week, remained monitored.
The juvenile court commended mother “because she’s getting her act together.” The court, however, noted mother delayed entering drug treatment until almost a year after K. H.’s removal, and this “late start” seriously compromised her reunification prospects. The court expressed particular concern over mother’s three incarcerations in the last year, observing her “track record, unfortunately, is a track record of relapse, with confinements in the jail, which derailed her, certainly.” Meanwhile, K. H. had “been in the same placement the entire time,” living “with [his] grandparents basically his whole life, save three months of it.” Cognizant that the 18-month statutory reunification window would shut in early March, just six weeks away, the court concluded mother had not shown K. H. could safely be returned to her care by then. (See § 361.5, subd. (a)(3).) Thus, even assuming the progress mother had made constituted a “change of circumstance” rather then merely changing ones, the court concluded granting mother’s petition would not serve K. H.’s best interests. Accordingly, the court denied mother’s modification petition. The juvenile court proceeded to find K. H. adoptable, terminated parental rights, and mother now appeals.
II
DISCUSSION
A. The Juvenile Court Properly Denied Mother’s Second Modification Petition
Mother contends the juvenile court erred by denying her second modification petition (§ 388) without an evidentiary hearing. She argues she established the requisite prima facie case for reinstating reunification services, and therefore the court violated due process by dispensing with a hearing. We are not persuaded.
Section 388, subdivision (c), provides that “[i]f 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 . . . .” (Italics added.) A change of order presupposes a change of circumstances affecting the child’s best interests. 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 at p. 806.) A parent “need only make a prima facie showing of these elements to trigger the right to a hearing . . . .” (Ibid.) But the “prima facie requirement is not met unless the facts alleged . . . would sustain a favorable decision on the petition.” (Ibid.; see In re Alexis W. (1999) 71 Cal.App.4th 28, 36 party seeking modification “has the burden of showing not only that circumstances have changed, but that proposed change would be in the child’s best interests”.)
On appeal from denial of a modification petition, the “‘“reviewing court will not disturb th[e] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) The juvenile court has the discretion “whether to provide a hearing on a petition alleging changed circumstances.” (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) “If the petition fails to state a change of circumstance or new evidence that may require a change of order or termination of jurisdiction, or that the requested modification would promote the best interest of the child, the court may deny the application ex parte.” (Cal. Rules of Court, rule 5.570(d).)
Factors circumscribing the juvenile court’s discretion in evaluating a modification petition, and informing our review, are: “(1) [T]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) Also, as our Supreme Court has explained, “[A] primary consideration in determining the child’s best interests is the goal of assuring stability and continuity. [Citation.] ‘When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.’ [Citations.]” (Stephanie M., supra, 7 Cal.4th at p. 317.)
Mother argues she satisfied her prima facie burden because, by January 2007, she had “made progress with her problems” and was “well on her way” towards a sober, drug-free lifestyle, having “completed most of a lengthy three-pronged Agency approved drug program . . . that included testing, counseling, anger management and 12-step meetings.” The juvenile court, however, reasonably remained concerned that mother’s commitment to treatment was only four months old, which paled next to the 12 months she avoided treatment during the first year of K. H.’s dependency. Weighed against mother’s admirable but comparatively short stint in treatment, the longstanding nature of her alcohol and methamphetamine abuse raised the specter of relapse. Of particular concern, mother continued to associate with a known heroin user after she began treatment in late August.
Additionally, as recently as October, mother had displayed erratic behavior leading the social worker to schedule her visits with K. H. at SSA’s facility and to ensure mother’s visits remained monitored even when mother later progressed to having visits at her home. Through October, mother skirted with having her probation revoked for repeated violations, including prohibited associations and employment (exotic dancing). Mother’s probation officer ultimately decided against reincarcerating her, but the juvenile court could reasonably conclude her poor choices increased the risk of relapse and consequently posed a danger to K. H.
True, mother’s modification petition did not ask that K. H. be returned to her care, but “only” to reopen the reunification period. But as the juvenile court noted, by January 2007 only a few weeks remained in the 18-month period in which a parent must demonstrate an ability to safely care for the child unmonitored. (§ 361.5, subd. (a)(3).) The presumptive reunification period for a child under three years of age is only six months (§ 361.5, subd. (a)(2)), but mother had almost 17 months to create a safe home for K. H. (See In re Marilyn H. (1993) 5 Cal.4th 295, 310 [“Childhood does not wait for the parent to become adequate”].)
Given mother’s recent and relatively brief commitment to treatment, marred as it was by poor choices, the juvenile court could reasonably conclude mother had not demonstrated K. H. could be returned to her care within the statutory period. Reopening the reunification period for a few weeks would therefore serve no purpose. To the contrary, doing so would undermine K. H.’s best interests by delaying selection of a permanent plan. (See In re Marilyn H., supra, 5 Cal.4th at p. 304 [noting .26 hearing may be delayed for months after 18-month review hearing].) Once the court terminates reunification services, as it did here in July 2006, “the child’s interest in stability is the court’s foremost concern, outweighing the parent’s interest in reunification.” (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [dependent children entitled to permanency “to get on with the task of growing up”].) Because mother’s modification petition presented no real possibility she could provide the immediate stability and safety K. H. required, the court did not abuse its discretion by denying a hearing on the petition.
B. Substantial Evidence Supports the Juvenile Court’s Adoptability Finding
Mother contends the juvenile court erred in finding K. H. adoptable. If any credible evidence supports the juvenile court’s order, we must uphold the finding. (In re Y.R. (2007) 152 Cal.App.4th 99, 112.) Our review of the record confirms substantial evidence supporting K. H.’s adoptability. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 [substantial evidence standard applies]; see also § 366.26, subd. (c)(1) [juvenile court must determine child is likely to be adopted within a reasonable time before court may terminate parental rights].)
Mother premises her argument on the fact background checks had not been completed on the grandparents by the .26 hearing. Both grandparents denied any criminal record or history of child abuse. Mother, lacking any evidentiary basis, relies on the abstract possibility of a negative report. She contends the court’s failure to ensure investigation of the grandparents was completed by the .26 hearing creates the risk K. H. could become a legal orphan if it is later determined the grandparents are unsuitable.
Mother’s argument is misplaced. The “inquiry as to whether a child is likely to be adopted does not focus on the adoptive parents, but rather, on the child.” (In re Josue G. (2003) 106 Cal.App.4th 725, 733; accord, Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) The social worker described K. H.’s “young age, good health, and happy disposition” as “desirable characteristics that are sought by many adoptive families.” He was developmentally on track, “very alert,” and “smiles a good deal.” Mother herself described him as bright, good-natured, healthy, “cute,” and happy. (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1651 [court looks to whether child’s age, physical condition, or emotional state will prevent adoption].) Moreover, even assuming the grandparents proved unable to adopt for any reason, “the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor.” (Id. at pp. 1649-1650.) Substantial evidence supports the juvenile court’s adoptability determination.
Resisting this conclusion, mother turns to section 366.26, subdivision (c)(1)(D). That subdivision allows the juvenile court to avoid terminating parental rights where “exceptional circumstances” prevent a caretaker from adopting the child, but the caretaker “is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the [caretaker’s] physical custody . . . would be detrimental to the emotional well-being of the child.” Mother’s reliance is misplaced. Subdivision (c)(1)(D) does not apply because a background check that revealed child abuse or a criminal history sufficient to derail adoption would also necessitate removing the child from the caretaker’s home. Moreover, as discussed, the caretaker’s inability to adopt does not undermine the general adoptability of a young, healthy, and pleasantly disposed child like K. H. Mother’s contrary argument is therefore without merit.
C. Substantial Evidence Supports the Juvenile Court’s Conclusion the “Benefit Exception” Did Not Apply to Prevent Termination of Mother’s Parental Rights
Mother contends the trial court erred by terminating her parental rights rather than applying the so-called “benefit exception” in section 366.26, subdivision (c)(1)(A). That exception authorizes the juvenile court to avoid terminating parental rights if it finds “‘a compelling reason for determining that termination would be detrimental to the child [because] . . . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.) Once reunification services have been terminated, the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The benefit exception “does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (Id. at p. 1348.)
Instead, the exception applies only if “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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “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.” (Ibid.) Thus, “the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family.” (In re Cliffton B., supra, 81 Cal.App.4th at pp. 424-425.) As one court has observed, the requisite benefit showing is “difficult to make” where a parent has failed to advance beyond supervised visitation. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Factors bearing on the parent-child bond include “[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 . . . .” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Even if these factors reveal a strong bond, the parent faces a “heavy burden” to overcome the Legislature’s preferred permanent plan of adoption. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813; see § 366.26, subd. (b) [identifying adoption as preferred plan]; see also In re Beatrice M., supra, 29 Cal.App.4th at p. 1419 [“most permanent and secure alternative” affords children “the best possible opportunity to get on with the task of growing up”].) By the .26 hearing, the dependent child “is entitled to stability now, not at some hypothetical point in the future.” (In re Megan S. (2002) 104 Cal.App.4th 247, 254.) Thus, “[t]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53.) The substantial evidence test governs our review of the juvenile court’s conclusion concerning whether the benefit exception applies. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Mother contends substantial evidence supports her conclusion the benefit exception applied. The standard of review, however, requires us to consider whether substantial evidence supports the juvenile court’s conclusion. We conclude the record supports the juvenile court’s determination.
Mother bore the burden of establishing termination of her parental rights would greatly harm K. H., outweighing the benefits of a permanent adoptive home. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The social worker acknowledged mother “maintained her visits on a consistent basis, unless she was incarcerated.” Mother visited K. H. twice a week for two hours at a time. The social worker and the monitor observed the quality of mother’s visits was “very good” and, except for her erratic conduct in October prompting restriction of visits to SSA’s facilities, no concerns arose about inappropriate behavior. K. H. enjoyed mother’s visits, responded well to her, and was comfortable and affectionate in her presence, hugging and kissing her. He called her “mama.”
The monitor described K. H. as an easy-going, well-disposed child. He cried “at times” when he separated from mother at the conclusion of visits in early 2006, but not thereafter. According to the monitor, “He’s fine with saying bye to his mom.” In contrast, he clung more closely to the paternal grandmother when the monitor arrived to pick K. H. up for visits with mother. But according to mother, K. H. continued to cry and cling to her at the conclusion of recent visits. For instance, on recent visits at the maternal grandmother’s home, K. H. “tended to get a little upset just leaving both of us.”
In re Jerome D. (2000) 84 Cal.App.4th 1200 and In re Amber M. (2002) 103 Cal.App.4th 681 illustrate the compelling evidence necessary to find the benefit exception applies. In Jerome D., the child “seemed lonely, sad, and . . . ‘the odd child out’” in his placement. (Jerome D., at p. 1206.) He wanted to live with his mother and had enjoyed unsupervised night visits in her home. (Id. at p. 1207.) A psychologist opined the child and his mother “shared a ‘strong and well[-]developed’ parent-child relationship and a ‘close attachment’ approaching a primary bond.” (Ibid.) The court concluded that keeping parental rights intact would prevent Jerome’s “position as the odd child out in [placement] from becoming entrenched by a cessation of visits and the loss of his mother while [his half-siblings] continued to enjoy visits and remained Mother’s children.” (Id. at p. 1208.)
In Amber M., the court reversed where a psychologist, therapists, and the court-appointed special advocate believed a “beneficial parental relationship . . . clearly outweigh[ed] the benefit of adoption.” (In re Amber M., supra, 103 Cal.App.4th at p. 690.) Additionally, two older children had a “strong primary bond” with their mother, and the younger child was “very strongly attached to her.” (Ibid.) If the adoptions had proceeded, the children would have been adopted in separate groups. (Id. at pp. 690-691.)
Mother presented nothing remotely resembling the harm that would ensue in Amber M. or Jerome D. from termination of parental rights. The unfortunate reality is that K. H. had spent the vast majority of his young life — 17 of 20 months — out of mother’s custody, and therefore grew accustomed to looking to his caretakers as parental figures. (See In re Autumn H., supra, 27 Cal.App.4th at p. 576.) For instance, mother acknowledged K. H. occasionally called her “grammie” instead of “mama” when he wanted parental attention. K. H. went four months without seeing mother over the course of her various incarcerations. No evidence suggested he fared poorly during those periods. The caretakers treated K. H. as a member of their family and on two occasions he accompanied them out of the country for weeks at a time; in neither case was there any evidence he suffered mother’s absence greatly or at all. We must view the evidence in the light most favorable to the juvenile court’s determination and, based on the evidence presented, the juvenile court could reasonably conclude mother failed to meet her burden to show detriment outweighing the benefit of a permanent, stable home.
III
DISPOSITION
The juvenile court’s order terminating mother’s parental rights is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.