Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super. Ct. No. INJ015861, Christopher J. Sheldon, Judge.
Nicole C. Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel and Sophia Choi, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ, P.J.
Appellant C. H. (mother) appeals from the juvenile court’s judgment terminating her parental rights to her daughter R. (child) under Welfare and Institutions Code section 366.26 and denying mother’s section 388 petition for modification of court order. Specifically, mother argues: 1) the juvenile court abused its discretion when it denied the section 388 petition because mother had completed her case plan and the modification would benefit the child; and 2) the juvenile court erred when it found that the beneficial parental relationship exception to the presumption for adoption did not apply. As discussed below, we reject these contentions and affirm the juvenile court’s judgment.
All section references are to the Welfare and Institutions Code unless otherwise indicated.
Statement of Facts and Procedure
Mother had a previous dependency case on the child’s older sister, H. H. was detained by respondent Riverside County Department of Public Social Services (DPSS) in March 2004 from her father’s care because of father’s substance abuse and mental health issues and no provision for support from mother. Mother eventually reappeared and received six months of reunification services. H. was placed with mother in March 2005 and mother received approximately twelve months of family maintenance services. Mother tested positive for methamphetamines on December 15, 2005, and January 18, 2006, and missed another scheduled drug test on January 5, 2006.
H. is not a subject of this appeal. The juvenile court terminated mother’s parental rights to H. on October 18, 2006.
On February 21, 2006, the social worker met with mother in her home and advised her that H. would be removed if mother tested positive again or failed to show for a drug test. Mother was asked to sign a contract detailing the conditions of H.’s continued placement with her, including inpatient drug treatment. The following week, mother cancelled her intake appointment at the inpatient drug treatment facility, disenrolled H. from school, quit her job, and moved out of her brother’s residence without telling DPSS. DPSS detained H. on March 10, 2006, when it learned she was re-enrolled in school. At H.’s detention hearing on March 15, 2006, Mother provided a phone number, but refused to give DPSS her new address.
The 11-month-old child R. was detained from her mother at the April 6, 2006, jurisdiction and disposition hearing held for her sister H. The court asked mother where the child R. was, but mother stated R. was with a babysitter whose address she did not know. Only when the court told mother that DPSS would escort her to the babysitter’s home to detain R. did mother admit that R. was waiting outside the courthouse in her car. The child R. was then detained. The section 300 petition alleged that mother had failed to protect R. and placed her at risk of harm when she tested positive for methamphetamines, failed to enroll in a drug treatment program, left the area with R.’s sibling H. and concealed her whereabouts from DPSS. At R.’s detention hearing on April 11, 2006, the court advised mother that, because of the child’s age, services could be terminated after six months if mother did not make enough progress on her case plan.
At the jurisdiction and disposition hearing held regarding R. on May 2, 2006, DPSS recommended mother not receive any services based on her “chronic and extensive history of abusing drugs.” (§ 361.5, subd. (b)(13).) The juvenile court found the allegations in the petition to be true, but ordered DPSS to provide mother with six months of reunification services. The court told mother that it was “going to go out on a limb for you” to offer her services and that “You know if you take crack, speed it up, that’s fine, say good-bye to your babies. Got to be clear on that.”
On July 3, 2006, the juvenile court granted mother’s June 28 request to allow her to participate in outpatient drug treatment instead of inpatient. Mother requested the change so she could keep her housing and be in a position to file a section 388 petition before her daughter H.’s section 366.26 hearing scheduled for August 29, 2006. At about that time, Mother relapsed. She had three positive drug tests, on May 5, June 28 and July 7, 2006. On July 27, mother enrolled in a seven-day inpatient detoxification program. On August 6, 2007, mother entered an inpatient drug program, which she completed on September 30. Mother then enrolled in after care and a sober living program.
On August 21, 2006, R. and her sister H. were placed with a prospective adoptive family. On October 18, 2006, the juvenile court terminated mother’s parental rights to H. and terminated reunification services as to R. The court set a section 366.26 hearing as to R. The court also denied mother’s section 388 petition for modification.
On February 7, 2007, mother submitted another section 388 petition, asking that reunification services be reinstated as to R., and that R. be returned to mother on family maintenance. Mother based her petition on her progress in substance abuse treatment, her sobriety since the last positive drug test on July 5, 2006, and her recent diagnosis and treatment for mental health issues.
On May 21, 2007, the juvenile court denied the section 388 petition and terminated mother’s parental rights to R. This appeal followed.
Discussion
1. Section 388 Petition
Mother contends the juvenile court abused its discretion when it denied mother’s section 388 petition because she had completed the case plan and the change would benefit R.
Section 388 provides “Any parent . . . may, upon grounds of change of circumstances or new evidence, petition the court . . . to change, modify or set aside any order of court previously made . . . .” The petitioner must show by a “preponderance of the evidence” that: (1) there is new evidence or a change of circumstances; and (2) that the proposed modification based on the new evidence or change of circumstances would be in the child’s “best interests.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526-527, fn. 5.) We review the juvenile court’s decision on a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
Here, the juvenile court found that mother’s “circumstances are changing, they have not changed yet.” Mother testified at the May 21, 2007, hearing she was working two jobs, had a two-bedroom apartment, and had lined up child care for R. for when mother was at work. Mother had also completed an inpatient drug program on September 30, 2006, was involved in an aftercare program, was testing negative for drugs each week, and was involved in a variety of parenting and other classes through the Indio Center for Change and Family Preservation Court. Also significant, mother had been diagnosed with and was receiving treatment for mental illness, including bipolar disorder, which she argues may be “at the root of her addiction” “due to self medicating during depressive mood swings.” Mother also points out that she did not relapse during the stressful period following the loss of her parental rights to H.
We cannot conclude that the juvenile court abused its discretion when it found that mother’s circumstances were changing, but not changed. First, the period of sobriety in relation to mother’s years of drug use is not substantial enough to demonstrate changed circumstances. Mother’s history of drug use extends back more than 15 years, to the age of 15, and she had been out of inpatient drug treatment only since September 30, 2006, a period of only eight months before the May 21, 2007, hearing. Second, Mother had relapsed twice in the 18 months prior to the hearing. The first relapse took place in December 2005 and January 2006, after she had received 18 months of services for R.’s sister H. The second relapse took place during this dependency, in May, June and July of 2006, after the juvenile court had told her it would go out on a limb to offer her services against the DPSS recommendation, and warned her that “You know if you take crack . . . say good-bye to your babies.” Third, mother’s 2005-2006 relapse occurred toward the end of aftercare, after having spent an entire year living at the ABC Recovery Center in Indio from September 2004 until August 2005, and receiving 18 months of services for R.’s sister H. As respondent DPSS points out, it appears that mother has a pattern of relapsing into drug use once she is provided with a lower level of care, indicating that her addiction to methamphetamines is “steadfast and enduring.” For these reasons, the juvenile court did not abuse its discretion when it concluded that, despite mother’s recent progress and discovery and treatment of her mental illness, she had not established changed circumstances.
Neither did mother establish the second prong required to justify granting a section 388 petition — that it would be in R.’s best interest to reinstate reunification services and return her to mother on family maintenance. We look to the record for evidence of “the strength of relative bonds between the dependent children to both parent and caretakers.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 532, italics original.) Here, mother points to evidence that she took walks with R., ate with her, played with her, changed her diapers, set boundaries for her, and hugged, kissed and loved her. Indeed, the social worker reported that mother was appropriate and loving with R. After reunification services were terminated on October 18, 2006, mother’s authorized weekly visits were reduced to once per month for two hours. While the social worker reported that the visits were generally positive, there is simply no evidence of a strong bond. For example, at the beginning of the visit on January19, 2007, R. looked at her mother with a “puzzled” expression on her face and stared at her for about 10 minutes before beginning to interact with her. Before the same visit, R. screamed and cried “no” when told that she was going to visit with mother.
As discussed in more detail below, mother only visited with R. seven times over the six month period during which she was authorized to visit R. weekly.
The record shows that R.’s bond with the potential adoptive parents is stronger than with her mother. R. had lived with them since August 2006. The social worker reported in October 2006 that R. showed a “connection” with these caregivers and that they showed a “genuine attachment and devotion” to R. and her sister H. In February 2007, the social worker reported that R. was observed to be “affectionate and engaging” with the caregivers. In addition, R. shared the home with her sister, with whom she is described as having a very strong reciprocal attachment. Based on this evidence, we cannot say that the juvenile court abused its discretion when it found that granting the section 388 petition was not in R.’s best interest.
2. Parental Relationship Exception
A. Introduction and Standard of Review
At a hearing held pursuant to section 366.26 to select and implement a permanent plan for a minor whose parent has failed to reunify, the juvenile court must first determine whether the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) Once the juvenile court has made the finding of adoptability, “the court shall terminate parental rights and order the child placed for adoption,” unless it also determines that this would be detrimental to the child under one or more of the six circumstances set forth in subdivisions (c)(1)(A) through (c)(1)(F). In cases where the parent has failed to reunify with the minor and the juvenile court has found the minor to be adoptable, the burden then shifts to the parent to establish that one or more of these exceptional circumstances exists. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) The appellate court must affirm the trial court’s conclusion that none of these exceptional circumstances is present if the ruling is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
B. Benefit of Relationship with Mother
Mother argues that there is not substantial evidence in the record to support the juvenile court’s findings that the “parental relationship” exception does not apply in this case. Section 366.26, subdivision (c)(1)(A) describes this exception as follows: “The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
Mother did not “maintain regular visitation and contact” with R., especially in the early months of the dependency. Although mother was authorized to visit with R. every week beginning with detention until services were terminated, she was never able to maintain that schedule. Our review of the record shows that Mother visited with R. on the following dates during this period in 2006: April 27, May 25, June 1, June 19, September 5, September 20, and October 12, for a total of seven visits over six months, compared to the approximately 24 visits which DPSS would have allowed if mother had been so inclined. After services were terminated on October 18, 2006, allowed visits were scaled back to once per month, and took place on October 23 and December 7, 2006, as well as January 19, February 26, and March 20, 2007. We note that mother visited with R. as often after reunification services were terminated as before, because during the provision of services she visited with R. only about once for every four visits she was allowed. Thus, substantial evidence supports the juvenile court’s conclusion that mother did not maintain regular visitation and contact with R.
Had mother established that she regularly visited R., she would also have been required to show that the child would benefit from continuing the mother-child relationship. The courts have clarified this exception “to mean 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. . . . 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The courts have also clarified that even “frequent and loving” contact between parent and child is not enough to establish that the child would “benefit from a continuing relationship” as required by statute, where the parent does not occupy a “parental role” in the child’s life. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) “Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Here, there is substantial evidence on the record to support the juvenile court’s finding that the minor would not benefit from a continuing relationship with mother. Nowhere in the record is there any indication that mother occupies a “parental role” in R.’s life, nor that the child has a “substantial, positive emotional attachment” to mother such that the R. would be “greatly harmed” if adopted and mother’s parental rights were terminated. The visits consistently went well. As described in mother’s brief and in the record, mother cooked for R., played with her, changed her diaper, and the two went on walks together. R. reciprocated her mother’s affection, and on at least one occasion “R. seemed sad as her mother put her into the car seat” at the end of a visit in December 2006. However, as noted earlier, during the January visit R. seemed puzzled about mother at the beginning of the visit and took at least ten minutes to warm up to her, and prior to the visit had screamed “no” when told she would be visiting with mother. Overall, the record simply lacks any indication that mother played a parental role in R.’s life or that R. was so attached to mother that she would be emotionally harmed by terminating parental rights. Thus, substantial evidence supports the juvenile court’s decision not to apply the parental benefit exception.
Disposition
The judgment of the juvenile court is affirmed.
We concur: McKINSTER, J., RICHLI,,J.