Opinion
NOT TO BE PUBLISHED
Appeal from the orders of the Superior Court of Los Angeles County No. CK67332 . Anthony Trendacosta, Juvenile Referee.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens and Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Mother A.A. appeals two dependency court orders: (1) denying her petition to modify due to changed circumstances after its earlier order terminating reunification services with her daughter, M.B. (Welf. & Inst. Code, § 388); and (2) its order terminating her parental rights in M.B. We affirm both orders.
FACTS AND PROCEDURAL HISTORY
A.A. (mother) gave birth to daughter M.B. (minor) in August 2006. Mother was referred to the Los Angeles County Department of Children and Family Services (DCFS) at that time because she tested positive for marijuana use before and after minor’s birth. Mother, who was 19, had been using marijuana for six years. Mother entered a treatment program in September 2006, but did not comply. In October 2006, mother signed a voluntary family reunification agreement with DCFS, which included placing the minor with mother’s aunt. Between then and March 2007, mother failed to comply with various drug testing requirements and tested positive for marijuana use several times. On March 13, 2007, DCFS filed a three-count petition alleging that mother’s conduct, including her continued drug use, put the minor at risk of harm. (Welf. & Inst. Code, § 300, subd. (b).) A detention hearing was held that day, and the minor was ordered to remain with the aunt.
The petition also alleged two counts as to the minor’s father, but they were later dismissed, and he is not a party to this appeal.
On April 23, 2007, mother pled no contest to the petition. On May 21, 2007, she was ordered to enter a drug rehabilitation program, submit to random drug testing, and to undergo individual counseling and parent education training. Monitored visits of at least three hours a week were ordered, with DCFS given permission to increase that amount. Between then and January 2008, mother visited minor infrequently, participated inconsistently and half-heartedly in drug treatment, continued to test positive for marijuana, and was ultimately terminated from the drug program. The minor, meanwhile, was thriving in the aunt’s home. On January 3, 2008, acting on DCFS’s recommendation and its report that the aunt was likely to adopt the minor, the court found mother had not complied with her case plan, terminated reunification services, and set the matter for a May 6, 2008 hearing on termination of mother’s parental rights. (§ 366.26.)
The section 366.26 hearing was delayed until September 2, 2008, in order to perform a due diligence search for the minor’s father. A July 2008 DCFS report indicated the minor and aunt had a loving relationship, with minor referring to the aunt as “momma.” Mother visited minor on Christmas Day 2007, but did not visit between January and March 2008. Mother had two-hour visits twice in April and once on June 20, 2008.
On September 2, 2008, the date of the continued section 366.26 hearing, mother filed a petition under section 388, alleging that the court should reinstate reunification services and allow her unmonitored visits with minor due to the following changed circumstances: she had completed a parenting class; she was enrolled in a drug treatment program, had consistently tested negative for drugs, and was set to complete that program in 20 days; she was consistently visiting the minor “every weekend from 1-4pm.” and had “a very strong relationship with” her. She had also “made many positive changes as a result of maintaining my sobriety and participating in [drug treatment, anger management, relapse prevention, and other counseling] programs....” Attached as exhibits were copies of mother’s clean drug test results. The hearing was continued to the next day, when mother filed an amended section 388 petition based on the same facts, but seeking a different remedy -- to have the minor returned to her after she completed her drug program in 18 days, or, in the alternative, to reinstate family reunification services, with overnight visitation or frequent unmonitored visitation.
At the September 3 hearing, counsel for DCFS and the minor agreed to go forward with the section 388 hearing despite the short notice. When asked by the court whether she had any documents to present or other evidence to offer, mother’s lawyer said she did not. Mother’s counsel argued the motion should be granted because mother was about to complete her drug program and was now consistently visiting the minor. DCFS argued that the petition was a stalling tactic, pointing out that even though mother entered her drug program in March and completed her parenting program in June, she waited until the date of the section 366.26 hearing to bring the petition. DCFS argued that the evidence showed only inconsistent visits by mother up to June 20, 2008. Moreover, those visits were monitored and took place at the drug program facility. DCFS also noted that the minor had lived with the aunt since the minor was two months old and that the aunt was the only caretaker the child had ever known. By contrast, DCFS argued, mother had failed to show a strong enough bond between her and the minor to justify granting the petition.
The court took the section 388 petition under submission pending its hearing on whether to terminate mother’s parental rights, and then proceeded to take evidence on that issue. Mother argued that her parental rights should not be terminated because the nature of her relationship with the minor was so strong and beneficial that it would be a detriment to minor to sever it. (§ 366.26, subd. (c)(1)(B)(i).) Mother testified that she lived with the minor for two or three months after her birth and visited her daughter two or three times a week for a few months at the end of 2006. She resumed visiting with the same frequency when she entered her then current drug and counseling program in March 2008. She could not visit more than that due to the restrictions of her live-in treatment program. She said the DCFS report showing she barely visited until June 2008 was inaccurate because the aunt was not reporting all her visits. During those visits she would teach her daughter numbers, the alphabet and how to spell her name, read books to her, and watch educational television. The minor called her “mom,” and was happy when she first arrived for visits and was sometimes upset when mother would leave. Mother believed the minor would be sad if she could not see her anymore.
The court also took the parental rights termination issue under submission, then issued a written statement of decision 15 days later by which it denied mother’s section 388 petition and terminated her parental rights. The court denied the section 388 petition because, even though mother had finally entered and was about to complete a drug treatment program, there was “little evidence that mother’s recovery will be successful after she completes her program. At best, mother’s circumstances may be changing, but have not yet changed within the meaning of the code. [¶] Similarly, no evidence was presented regarding the child’s best interest. As discussed below [in ruling to terminate parental rights], the child has essentially spent her entire life out of mother’s care and she relates to the caretaker as the parent. Mother’s visits have also been inconsistent.”
The court terminated mother’s parental rights, finding there was insufficient evidence of a strong and beneficial relationship with the minor. The court based its ruling on the following: the child had been with the aunt since October 2006, and the aunt had been truly acting as her parent; mother’s visits were inconsistent, even though they had recently become more frequent; there was no evidence that the quality of the mother’s visits met the threshold requirements for a beneficial relationship and mother was, at best, a “friendly visitor;” and the amount of time that had passed and the stage of the proceedings compelled the court to put the child’s in a long-term, stable placement.
DISCUSSION
1. Mother Did Not Carry Her Burden of Proof Under Section 388
Section 388 allows any parent or other person having an interest in a dependent child of the juvenile court to petition for a hearing to change, modify, or set aside any of the court’s previous orders on grounds of “change of circumstance or new evidence.” (§ 388, subd. (a).) “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 and shall give prior notice....” (Id., subd. (d).) This gives the court two choices: (1) summarily deny the petition or (2) hold a hearing. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) In order to avoid a summary denial, the petition must make a prima facie showing of evidence which, if believed, would sustain an order granting the petition. If the petition presents evidence that a hearing would promote the child’s best interests, the court will order the hearing. (Ibid.) We review the dependency court’s ruling on a section 388 petition for an abuse of discretion. (In re Mary G. (2007) 151 Cal.App.4th 184, 205.)
Mother’s claim of changed circumstances is based on her entry into a drug treatment program in March 2008 and her consistently clean drug tests since that time, along with the various counseling and other programs she took during that period. When compared with her long-term marijuana use and her consistent failure to comply with the dependency court’s drug treatment and testing orders until two months after reunification services were terminated, her recent sobriety, though commendable, does not constitute a sufficient track record to state as a matter of law that her circumstances had changed. Given this, the dependency court did not abuse its discretion by finding no change of circumstances. (In re Mary G., supra, 151 Cal.App.4th at pp. 205-206; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)
Because this alone was sufficient to justify denial of mother’s petition, we do not analyze the best interests prong of section 388. As discussed in part 2, post, however, mother had little evidence to support her claim that her parental rights should not have been terminated because her relationship with the minor was so beneficial to the child.
Finally, mother contends the dependency court erred by finding she did not state a prima facie case, thus denying her an evidentiary hearing. The court did provide that hearing, however. It never stated it was not finding a prima facie case, asked mother’s lawyer if she had any additional evidence to present, then took the matter under submission pending mother’s testimony on the nature of her relationship with the minor as part of mother’s challenge to the motion seeking to terminate her parental rights.
2. The Beneficial Relationship Exception Did Not Apply on These Facts
If there is clear and convincing evidence that a dependent child is likely to be adopted, and a previous determination that reunification services should be terminated, there is a presumption favoring adoption as the permanent plan. (§ 366.26; In re Zacharia D. (1993) 6 Cal.4th 435, 447.) Guardianship or long-term foster care may be selected only if exceptional circumstances exist, as defined in section 366.26, subdivision (c)(1)(B)(i)-(vi). (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.)
Mother contends that terminating her parental rights was improper because she maintained regular visitation with the minor, who would benefit from continuing the relationship (the beneficial relationship exception). (§ 366.26, subd. (c)(1)(B)(i).) The beneficial relationship exception must be considered in light of the Legislature’s preference for adoption when reunification efforts have failed. The exception does not allow a parent who has failed to reunify with an adoptable child to stymie an adoption simply because there is evidence that the child would derive some benefit from continuing a relationship with the parent. The exception “is not a mechanism for the parent to escape the consequences of having failed to reunify.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) In order for the exception to apply, the parent must have visited the child regularly and have maintained such a strong and beneficial parent-child relationship that terminating parental rights would be to the minor’s detriment. (Id. at pp. 1348-1349.) Although daily interaction is not necessarily required, the relationship must be that of parent and child. A relationship which is merely friendly or familiar is not enough. (Id. at pp. 1349-1350.) A parent bears the burden of proving that the beneficial relationship exception applies. (Id. at p.1350.) We will affirm the dependency court’s order finding the exception inapplicable if the order is supported by substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577.)
By the time of the section 366.26 hearing, the minor was 25 months old, and, except for the first two months of her life, had lived with the aunt, with whom she was bonded and to whom she referred as “momma.” Mother had visited minor only sporadically until six months before the termination hearing, by which time the minor had been a dependent child for a year and reunification services had been terminated. According to mother, she was now visiting twice a week, where she would read to the minor, and teach her about numbers and the alphabet. The minor called her mom, was happy when she came, and sometimes upset when she left. While this evidence shows a warm, positive relationship between the two, it shows neither the consistent visitation nor the type of strong, parental relationship required to invoke the beneficial relationship exception. On this record, we hold there was sufficient evidence for the dependency court to terminate mother’s parental rights.
DISPOSITION
For the reasons set forth above, the orders denying mother’s section 388 petition and terminating her parental rights are affirmed.
WE CONCUR, FLIER, J., BIGELOW, J.
All further undesignated section references are to the Welfare and Institutions Code.