Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0401730
Siggins, J.
Sara M. (Mother) appeals the juvenile court’s orders terminating her parental rights in her son Lawrence G., and denying her petition pursuant to Welfare and Institutions Code section 388 without a hearing. Mother contends she was entitled to a hearing on her section 388 petition, and that termination of her parental rights was in error because she proved Lawrence would benefit from continuing his relationship with her. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Lawrence was born in May 2003. He lived with his mother until September 2004, when the Contra Costa County Bureau of Children and Family Services (the Bureau) filed a petition that alleged Lawrence was subject to juvenile court jurisdiction, because Mother had a serious and chronic substance abuse problem, the family had been living with known drug users, a roommate was stabbed while Lawrence was present, and his family was then homeless. An amended petition filed in November 2004 added allegations that Lawrence’s parents engaged in episodes of domestic violence, and his father had a history of substance abuse.
Mother had previously been reported to the Bureau in connection with Lawrence’s older sister Jocelyn, who was also removed from the home, but whose custody is not at issue in this appeal.
When the report was prepared for the jurisdictional hearing scheduled for December 2004, Lawrence was living with his paternal aunt. By the time of the report, Mother had refused drug testing because she had used either alcohol or methamphetamine, and had broken up with her boyfriend after he broke her nose. In January 2005, Mother waived her right to contest the allegations, and pled no contest. The court sustained allegations that Mother had a substance abuse problem and a history of domestic violence that impaired her ability to care for Lawrence.
In the February 2005 dispositional hearing report Mother admitted she had used methamphetamine since the age of 13 and said there was frequent drug abuse in her childhood home. In August 2003 she was convicted of possession of controlled substances. When Mother was offered the chance to keep custody of her children by drug testing and remaining drug free, she refused. Lawrence continued to live with his paternal aunt, and his attorney reported he was doing “very well.” Mother’s visits were sporadic, but positive when they occurred. She tested only sporadically for drugs, and was not enrolled in a drug treatment program.
Mother also had a considerable welfare history from her own childhood that involved neglect, abuse, and drugs. She was a dependent of the court at the age of 12, and lived in a group home for a short period.
The court adjudged Lawrence a dependent, and ordered family reunification services for both parents, including twice monthly visitation. In the report prepared for the status review hearing in May 2005, the Bureau recommended termination of services. Lawrence’s counsel agreed. Mother had only recently entered a residential substance abuse treatment program and begun regularly visiting Lawrence. Lawrence remained with his aunt and uncle, who wanted to adopt him.
The Bureau reported in June 2005 that Mother had attended four sessions with her therapist who, based upon Mother’s family history and the therapist’s clinical observations, concluded Mother would require long-term treatment. The Bureau acknowledged Mother’s love for her children and her sympathy for their suffering as a result of Mother’s substance abuse, but noted Mother had entered and left two treatment centers within a few days since her daughter was originally removed in 2002. Based on her historic inability to maintain sobriety and stability, the Bureau did not believe there was a substantial probability Mother would successfully reunify with her children. In June 2005, the court ordered Mother an additional six months of services.
In the report prepared for the 12-month review hearing, the Bureau recommended an extension of services until the 18-month review. Mother was then drug testing regularly, attending therapy, working at Safeway, and living in transitional housing. Services were extended to March 2006. But in the report prepared for the March 2006 review hearing, the Bureau recommended that services for Mother be terminated and a section 366.26 hearing be set.
The Bureau was concerned over Mother’s continued contact with her drug-involved family, despite her agreement to discontinue that contact for the welfare of herself and her children. Mother stated that her family was the only support system she had. She had been discharged from her aftercare outpatient program due to her poor attendance, and she stopped returning telephone calls from her behavioral services worker. The New Connections aftercare program would not accept her back. Mother had just started attending 12-step meetings, and was looking for a sponsor. Her drug tests were generally negative, but the concerns noted in the Bureau’s report made prospects for her long-term recovery questionable. Mother’s therapist was “not sure [Mother was] ready to parent her children,” and noted Lawrence did not appear attached to Mother, but was very attached to the paternal aunt and uncle, who wished to adopt him.
At the May 4, 2006, hearing, the social worker testified that Mother had completed an inpatient substance abuse treatment program in August 2005, and made good progress in her current aftercare outpatient treatment program. County counsel stipulated Mother had had a sponsor for the last two months who said she was applying herself in her 12-step program.
The Bureau characterized Mother as “a victim of her own family’s cycle of abuse,” who even after additional reunification services “ha[d] not demonstrated her ability and[/]or motivation to take advantage of necessary tools to solidify her sobriety and provide her children a safe, drug free and stable home.” The Bureau “encourage[d] [Mother] to continue efforts to stabilize her life,” but concluded that the children “deserve permanency and a life free of further chaos and trauma.”
On May 4, 2006, the court terminated reunification services and set a section 366.26 permanency planning hearing for August 16, 2006. On August 15, 2006, Mother filed a section 388 petition seeking return of Lawrence to her care. The petition was supported by a declaration of Mother’s attorney. The substance of the declaration provided: “Since the court’s ruling, [Mother] has made significant progress in he following areas: [¶] A. She has continued with her individual therapist, been consistent in her attendance and has made progress in her therapy. [¶] B. She has continued to attend multiple AA [Alcoholics Anonymous] and/or NA [Narcotics Anonymous] meetings on a weekly basis. [¶] C. She is no longer associating with members of her family who use drugs. [¶] D. She has maintained gainful employment at Safeway. [¶] E. She has been consistent in her visits with her children, been appropriate during the visits and the children are delighted to see her and spend time with her. [¶] [] [Mother] has completed all aspects of her case plan and has continued to seek out support and services to help her maintain her sobriety. She is currently living with a family member, who has no history of drug use, and can provide the children with safe and stable housing. [¶] [] The children demonstrate their strong bond to their mother through the affection and joy they express during visits.” Both the petition and the declaration were signed only by Mother’s attorney, and were unaccompanied by any supporting documentation.
The court denied Mother’s petition ex parte after concluding she did not make a prima facie showing for relief. The Bureau then submitted on the report at the section 366.26 hearing which followed, and recommended termination of parental rights to free Lawrence for adoption. The report described Mother as “a very young woman with an extensive family history of substance abuse and related problems.” The Bureau noted that despite years of services, Mother “has not been able to demonstrate a significant level of insight and commitment to sustaining a permanent change in her circumstances. . . . She has not established a stable and safe residence nor demonstrated her understanding of the need to maintain an effective positive support system, with strong boundaries against past negative influences, including her birth family.”
The report noted Lawrence “has been in the care of his paternal aunt and her husband for more than eighteen months, a significant and important portion of his life.” His paternal aunt and uncle were committed to his long-term care, and he shared a “strong emotional connection” with them.
The report acknowledged Mother’s regular visits with Lawrence, and her appropriate interaction with him. Mother testified that although she had supervised visits with Lawrence once a week since January 2005, her visits were not consistent until she “started getting the parent aide through Family Stress Center.” Mother testified that Lawrence was happy to see her, wanted her to hold him, and called her “mommy.” Mother testified she was “a lot different than [she] was before,” and was now ready to assume responsibilities as Lawrence’s parent.
Mother’s counsel argued that Lawrence’s “strongest bond is with her, and he deserves to be with her.” County counsel and Lawrence’s attorney disagreed. The court terminated Mother’s parental rights. The court stated: “It’s never easy to make that ruling. But the evidence is undeniable that Lawrence is an adoptable child, and there has been no evidence that an exception applies. The relationship between Lawrence and his mother does not rise to the degree such that it outweighs the permanency of him being adopted into the home . . . which he is in. He knows and enjoys his mother from visits, but Lawrence can’t wait for [Mother] to become a good parent.” Mother timely appealed.
DISCUSSION
A. Mother’s Section 388 Petition
Mother argues that the juvenile court’s ex parte denial of her section 388 petition for modification was an abuse of discretion. We disagree.
Section 388 provides, in relevant part, “(a) Any parent or other person 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 change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall . . . set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. [¶] . . . [¶] (c) 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 . . . .” California Rules of Court, rule 5.570 [former rule 1432] provides that “(a) A petition for modification must be liberally construed in favor of its sufficiency. . . . [¶] . . . [¶] (d) 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.”
The court may deny a section 388 petition without a hearing when the petition fails to allege changed circumstances or provide new evidence that might require a modification of a prior order. (Cal. Rules of Court, rule 5.570(d); In re Angel B. (2002) 97 Cal.App.4th 454, 461 [“th[e] statutory scheme itself is constitutional because of its many safeguards,” and “the real issue here is not whether this statutory scheme is constitutional, but whether Mother made the requisite prima facie showing”].) Whether Mother made a showing that would entitle her to a hearing depends on the facts alleged in her petition and the facts established by the court file. (In re Angel B., supra, at p. 461.)
Mother’s petition was based on her continued employment and visitation, and her attendance at therapy and AA/NA meetings. But her positive accomplishments “do[] not, in and of [themselves], show prima facie that either the requested modification or a hearing would be in the minor’s best interests. [Citations.]” (In re Angel B., supra, 97 Cal.App.4th at p. 463.) Noticeably absent from Mother’s petition is a therapist’s or other qualified professional’s opinion that Mother was able to provide suitable care for Lawrence. (Cf. In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799 [therapist’s letter recommending that child be returned to mother’s custody “demonstrated the availability of admissible evidence to support appellant’s allegations of changed circumstances”]; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 [declarations from court-appointed therapist and grandmother stated mother was presently able to provide suitable care for child].) Indeed, even Mother’s appellate brief asserts only “a strong possibility that Mother could, with additional services, regain custody of her child . . . .”
Nor did Mother attach any other documentation to her petition to support her claimed change of circumstances. (Cf. In re Aljamie D. (2000) 84 Cal.App.4th 424, 428 [attached to section 388 petition were completion certificates for parenting classes, a domestic violence program, a residential program, a job readiness workshop, a perinatal health education program, and a behavior change program]; In re Jeremy W., supra, 3 Cal.App.4th at pp. 1414-1416 & fn. 11 [uncontradicted declarations of mother, grandmother, and mother’s court-appointed psychologist established “a strong prima facie showing of a favorable change in the single negative factor on which the referee purported to base his section 366.21 order”].)
Moreover, unlike the cases cited by Mother, there is no evidence that Lawrence preferred to live with her rather than with his paternal aunt and uncle. (Cf. In re Aljamie D., supra, 84 Cal.App.4th at pp. 432-433 [first choice of nine- and 11-year-old children was to live with their mother, who had tested clean in weekly random drug tests for over two years, and juvenile court believed that mother would probably regain custody in the future]; In re Jeremy W., supra, 3 Cal.App.4th at p. 1416 [five-year-old child confided in grandmother “that he was just living with his aunt and uncle until he can return to his real mother with whom he wants to be reunited”].)
“[A]s in any custody determination, a primary consideration in determining the child’s best interest is the goal of assuring stability and continuity. [Citation.] . . . That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citation.] Thus, one moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence[,] that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child. [Citations.] [¶] This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been terminated . . . . After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] . . . 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., supra, 97 Cal.App.4th at p. 464.)
Although Mother’s section 388 petition demonstrates her progress, it is “not legally sufficient to require a hearing on her section 388 petition.” (In re Angel B., supra, 97 Cal.App.4th at p. 465.) She has not overcome the “rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly when such placement is leading to adoption by the long-term caretakers.” (Id. at p. 465.) Moreover, Mother’s commendable sobriety had lasted but an instant when compared to her many years of drug involvement and abuse. (Id. at p. 463.) The juvenile court did not abuse its discretion when it denied Mother’s section 388 petition ex parte. (Ibid.; In re Zachary G. (1999) 77 Cal.App.4th 799, 808.)
B. The Termination of Mother’s Parental Rights
Mother argues that her showing that Lawrence would benefit from his continued relationship with her warranted an exception to termination of parental rights as set forth in section 366.26, subdivision (c)(1)(A). We disagree.
“Section 366.26, subdivision (c)(1)(A), provides that if the juvenile court determines, by a clear and convincing standard, that it is likely a minor will be adopted, then it shall terminate parental rights and order the child placed for adoption unless the court finds a compelling reason for determining that termination would be detrimental to the child. One such reason is that the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (In re Angel B., supra, 97 Cal.App.4th at p. 466.) “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.” (Ibid.) The burden is on the parent to show that a statutory exception to termination of parental rights applies. (In re Zachary G., supra, 77 Cal.App.4th at p. 809; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
This court has applied the abuse of discretion standard to review the juvenile court’s balancing of “the benefits to be gained from a permanent home with adoptive parents against the benefit of a continuing parental relationship.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342, 1351-1352.) “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.” (Id. at p. 1350.) “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Ibid.)
Although Mother consistently visited Lawrence, and their visits were positive, Mother never progressed from supervised to unsupervised visits. (See In re Jasmine D., supra, 78 Cal.App.4th at pp. 1343-1344; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [“frequent and loving contact” between children and parents was not sufficient to establish the necessary benefit from continuing the relationship, and parents must show they occupied a parental role in the child’s life].) Nor was it determinative that Lawrence had called Mother “mommy,” or occasionally cried when she left. (See In re Jasmine D., supra, at p. 1344; In re Beatrice M., supra, at p. 1416.) Lawrence had lived with his paternal aunt and uncle for more than half his short life, and Mother herself testified that Lawrence referred to his aunt as “mommy.” Mother’s therapist saw that Lawrence seemed very attached to his paternal aunt and uncle, but not to Mother.
Mother purports to distinguish In re Beatrice M. on the ground that the parents in that case would continue to have regular contact with their daughters. But the Beatrice M. court later observed that “a permanent plan of adoption does not guarantee [the parents’] continuing relationship with their daughters.” (In re Beatrice M., supra, 29 Cal.App.4th at p. 1420.) Mother cites no authority that continuing posttermination contact is a relevant factor to be considered by the court in this context.
Mother did not establish that her relationship with Lawrence was so significant that termination would be detrimental to him, and “the juvenile court did not err by refusing to find that the exception provided in section 366.26, subdivision (c)(1)(A) was applicable . . . .” (In re Angel B., supra, 97 Cal.App.4th at p. 468 [“there was no hint in the record before the juvenile court that [the child] would be harmed in any way if [the child’s] relatively brief, albeit happy, visits with Mother were to end”].) “This is not the extraordinary case where an adoption should have been foreclosed by the exception provided in section 366.26, subdivision (c)(1)(A).” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1352.)
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: McGuiness, P.J., Pollak, J.