Opinion
NOT TO BE PUBLISHED
Ginger E. Garrett, Judge Superior Court County Ct. No. JV 48287 of San Luis Obispo
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Warren. R. Jensen, County Counsel, County of San Luis Obispo, Rita L. Neal, Assistant County Counsel and Leslie H. Kraut, Deputy County Counsel.
YEGAN, A.P.J.
Tanisha M., mother of three-year-old Nevaeh M., appeals from a November 8, 2010 order denying a modification petition (Welf. & Inst. Code, §388) and terminating her parental rights (§ 366.26). The trial court found that reinstating services and/or returning Nevaeh to appellant's care would be detrimental to the child and was not in the child's best interests. We affirm.
All statutory references are to the Welfare & Institutions Code.
Facts
On May 22, 2009, San Luis Obispo County Department of Social Services (DSS) filed a petition to detain Nevaeh (17 months old) for lack of supervision and protection. (§ 300, subd (b).) Appellant (age 16) suffered from substance abuse and had a violent temper, rendering her unable to provide for the care and safety of Nevaeh.
The biological father, T.C., was uninvolved in Nevaeh's life, had a criminal record, and suffered from depression and substance abuse problems. At the six-month review hearing, father submitted on DSS's recommendation to terminate reunification services.
Appellant agreed to voluntary services but did not participate in treatment or attend school. On May 12, 2009, appellant tested positive for amphetamine, benziodiazepine, and marijuana. Appellant was so intoxicated, that an adult was called to pickup and care for Nevaeh.
After appellant relinquished care of Nevaeh to a paternal aunt, the trial court ordered reunification services and visitation. Appellant, however, did not participate in the treatment programs and her visits were sporadic.
On June 14, 2009, appellant was arrested for being under the influence of methamphetamine. Appellant said that she was using marijuana to deal with stress and abstain from using methamphetamine.
At the July 21, 2009 jurisdiction/disposition hearing, the trial court declared Nevaeh a dependent of the court, continued Nevaeh's placement with the aunt, and ordered reunification services.
A few days later, appellant was detained at the San Luis Obispo County Juvenile Service Center on an outstanding warrant and as a safety risk. Appellant was on probation in Mariposa County on a battery charge and transferred to Mariposa County. DSS coordinated the case plan with Mariposa County to assure that appellant received reunification services.
Six Month Review Hearing
At the six-month review hearing, evidence was received that appellant tested positive for methamphetamine on December 3, 2009. On February 15, 2010, appellant had a second drug relapse, used methamphetamine, and absconded during a scheduled visit. Mariposa County placed appellant in Grace Homes, a residential drug treatment program for teenage girls in Tulare County.
DSS recommended that reunification services be terminated. Despite 12 months of reunification services, appellant had not progressed beyond supervised visits and lacked insight about Nevaeh's special needs. Nevaeh suffered from pre-natal exposure to drugs and significant exposure to domestic violence while under appellant's care. Therapists were treating Nevaeh for behavioral problems that included screaming fits, tantrums, aggression toward peers (biting) and adults (hitting), kicking, crying, sleeplessness, not wanting to be nurtured, and emotional and behavioral dysregulation. DSS reported that the behavioral problems escalated after visits and that reunification would be detrimental to Nevaeh.
After the trial court terminated reunification services and set the matter for a permanent placement hearing (§ 366.26), appellant filed a petition for extraordinary writ relief. We denied the writ petition on September 15, 2010. (B225169.)
Section 366.26 Hearing
On the eve of the section 366.26 hearing, appellant filed a section 388 petition to reinstate services and/or place Nevaeh in appellant's care. The petition alleged that appellant had been clean and sober for eight months, was attending school, and was more than halfway through the Grace Homes program.
DSS opposed the petition at a combined section 366.26/388 hearing based on the following evidence: Nevaeh was closely bonded to her aunt, called her "mom, " and expressed a lot of anxiety when separated from aunt. Nevaeh was seeing therapists and health care providers in San Luis Obispo for anxiety and attachment disorders, the symptoms of which included biting, hitting, night terrors, sensory processing issues, and compulsive and controlling behavior.
Although appellant remained clean and sober for eight months, DSS Case Worker Laura Bennett had no confidence that appellant could sustain her sobriety with the added burden of caring for Nevaeh. Bennett testified that the supervised visits were friendly but there was no parent-child relationship. Nevaeh was confused about who appellant was, asked "[W]hy do I visit 'Nisha?' and expressed no emotion at the end of the visits. Nevaeh acted like the visits were something she had to go through and referred to appellant as "my birth mom."
The trial court found no change of circumstances and concluded that moving Nevaeh or reinstating services was not in the child's best interests. "[Appellant] has just begun to be in a position to provide stability for her daughter. And this is after 18 months of out-of-home placement for Nev[ae]h. That is over half of Nev[ae]h's life..., and she requires a lot of services because she is a special needs child, born drug exposed, exposed to domestic violence, leading a chaotic lifestyle." The court found that if Nevaeh was placed with appellant, Nevaeh's "life would be chaotic again. [¶] She would be taken away from the caretaker [aunt] that she's known for 18 months. She would be taken away from the therapist that she's worked with. She'd be taken away from... Martha's Place and the Kinship programs that she's been involved in."
Denying the section 388 petition, the trial court terminated parental rights, and determined that Nevaeh was likely to be adopted and that adoption was the preferred permanent plan. (§ 366.26.)
Change of Circumstances
We review for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Section 388 authorizes a juvenile court to modify a prior order if a parent shows that a change of circumstances exists and the proposed change is in the best interests of the child. (Id., at p. 317.) "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. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Although appellant has made progress at Grace Homes, there is no evidence that returning Nevaeh to her care or extending services is in Nevaeh's best interest. Appellant lacks insight about Nevaeh's special needs, has not cared for Nevaeh since May of 2009, and has never progressed beyond supervised visits. When reunification services were provided, appellant felt overwhelmed, suffered a drug relapse, and absconded. Appellant was provided travel/bus passes for visits and asked to meet with Nevaeh's therapists but declined, fearing that she would suffer another drug relapse. Appellant then requested that visitation be decreased from weekly visits to supervised visits once a month.
It is uncontroverted that Nevaeh has bonded with her aunt who is diligently providing services that Nevaeh needs to thrive and develop. DSS reported that Nevaeh is in the best possible environment and it is in Nevaeh's best interest that she stay with her aunt who has provided a stable, loving, and nurturing home. Moving Nevaeh to live with appellant would disrupt Nevaeh's services and 18 months of bonding with her aunt/long-term caregiver, causing Nevaeh to lose the only support and family she has known.
Appellant argues that Nevaeh's therapy is not unique and can be duplicated at Grace Homes. Nevaeh, however, is being treated by different therapists and health professionals in San Luis Obispo, attends preschool, is enrolled in theraplay and occupational therapy programs with her aunt, and attends swimming and gymnastic classes, all of which are important in maintaining Nevaeh's stability and permanency. Appellant (age 18), on the other hand, is still on probation at a residential drug treatment home for 12 to 18 year old girls and will have to leave Grace Homes in the near future.
Appellant asserts that the trial court relied on speculative evidence in concluding that moving Nevaeh and/or reinstating services would be detrimental to the child. We disagree. DSS reported: "Nevaeh has extreme behaviors caused by the neglect and trauma she has suffered. Behaviors such as melt-downs to the point where she is not present, hitting, excessive crying, sleeplessness, night terrors, hitting, screaming and tantruming, are some of the behaviors that, while decreasing overall, continue to escalate after visits with her mother."
Sherrie Fehlman, a counselor at Grace Homes, agreed that moving a special needs child who is attached to a primary caregiver could re-traumatize the child and be detrimental. No therapist, service provider, counselor, or case worker who has met Navaeh has recommended returning Navaeh to appellant's care. Nor is appellant trained or able to provide the quality of services and care that Navaeh enjoys in San Luis Obispo.
Change In Visitation
Appellant argues that DSS arbitrarily decreased visitation, undermining appellant's ability to bond with Nevaeh and establish a parent-child relationship exception to adoption. The June 9, 2010 order terminating reunification services provided that visitation would be once a month for three to four hours and "DSS has the discretion to increase/decrease visits." After reunification services were terminated, appellant did not contact the case worker about missed visits during the months of June and July. Nor did appellant object to the visitation order, thus waiving any right to challenge the order at this late a date. (See e.g., In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151.)
Waiver aside, the trial court did not err in delegating the management of visitation details to DSS. (See e.g., In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009.) Before services were terminated, appellant requested that visitation be reduced from biweekly to weekly visits. Appellant suffered a drug relapse, was placed in Grace Homes as a term of probation, and requested that visitation be changed to once a month. DSS granted the request but asked appellant to visit Nevaeh as much as possible. Appellant limited the visits to one day a month and did not ask for additional visitation or parenting time.
It is true that DSS failed to schedule visits in June and July 2010 after a new case worker was assigned to the case. Appellant, however, did not talk to the case worker, advocate for herself or Nevaeh, or try to coordinate a visit at the June 9, 2010 six-month review hearing. Appellant had other avenues available to her to facilitate visitation but did not use them.
There is no evidence that DSS disregarded the visitation order or purposefully decreased visitation hours to hamper appellant's efforts to maintain a parent-child relationship with Nevaeh. Visitation resumed in August 2010 and, like the prior visits, were friendly but lacking "a significant, positive emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Case Worker Bennett testified that Nevaeh was not affectionate and displayed "sort of a flat affect" during visitation. "At the last visit, which was November 2nd, ... Tanisha went to give Nev[ae]h a kiss when she was in her car seat and Nev[ae]h kind of turned her head. Didn't really want that."
Appellant argues that DSS has a policy of decreasing visits to one and a half hours after reunification services are terminated. Case Worker Bennett testified: "Our typical practice in the adoption unit, would not be a four-hour visit. It would be a one to one-and-a half-hour visit." There is no evidence that appellant complained about the length of the visits or requested three to four hour visits.
A section 366.26 hearing occurs only after the trial court "has repeatedly found the parent unable to meet the child's needs[.] [I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Nevaeh deserves the chance for a stable home. "A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Equal Protection
Appellant claims that her equal protection rights were violated because DSS Case Worker Laura Bennett reported that "research regarding treatment for drug addiction indicates that individuals must maintain 18-24 months of sobriety for there to be confidence that the sobriety is likely to be maintained." Bennett testified that appellant had been drug free eight months and "it sounds like [appellant's] made great progress.... [S]he is progressing. I'm just saying that in terms of also adding her child into that mix, ... I don't personally have confidence in her ability to add that in and to make a life with her daughter drug free."
Bennett's opinion testimony was contradicted by Grace Homes Counselor Sherrie Fehlman who testified that appellant was very motivated and "her risk of reoffending and relapsing is minimal at this point
Fehlman was in charge of case planning and recovery services at Grace Homes and stated: "The only thing that I can think of or where those numbers [i.e., 18 to 24 months of sobriety] may have come from is from [appellant's] methamphetamine use. And typically from methamphetamine use, it can take up to a minimum of 18 months for the brain to start completely healing...."
Appellant claims that DSS has a pervasive, department-wide policy that guarantees the failure of reunification for parents suffering from drug addiction. We reject the argument because there is no evidence that DSS adopted a classification that affects two or more similarly situated groups in an unequal manner. (In re Brittany M. (1993) 19 Cal.App.4th 1396, 1404.) Bennett's lack of confidence in appellant's ability to stay sober was based on Bennett's personal observations. The trial court did not cite Bennett's opinion testimony in ruling on the section 388 petition or defer to any de facto policy that parents suffering from substance abuse have no chance of reunifying with their children after 12 months of services.
The concern here was not appellant's drug abuse but the chaos Nevaeh would suffer if reunification services were reinstated or Nevaeh was moved. The trial court found: "The record is full of references to Nev[ae]h's inability to transition well, having difficulty with transitions. And this would be a huge transition for her." After reunification services were terminated, the focus shifted from appellant's interest as a parent to Nevaeh's need for permanency and stability. (See In re Aaliyah (2006) 136 Cal.App.4th 437, 448.) The trial court "quite properly looked to [Nevaeh's] need for permanent and stability in denying mother's petition for modification of its prior orders. When, as here, the permanent plan is adoption, that presumption is even more difficult to overcome. [Citation.]" (Id., at pp. 448-449.)
Based on appellant's anger problems and prior child welfare history, her lack of insight about Nevaeh's special needs, the absence of a significant parent-child relationship, and appellant's lack of training and parenting skills, the trial court reasonably concluded that the proposed change was not in Nevaeh's best interests. (See e.g, In re Clifton B. (2000) 81 Cal.App.4th 415, 423 [parent's seven months of sobriety after relapse "while commendable, was nothing new"].)
The evidence shows that Nevaeh needs her therapists and service providers, is bonded to her aunt, and has been thriving in aunt's care for the past 18 months. Appellant has made substantial progress in dealing with her drug addition but is not ready, able, or capable of addressing Nevaeh's special needs. "The reality is that childhood is brief; it does not wait until a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
The judgment is affirmed.
We concur: COFFEE, .J., PERREN, J.