Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK58576. Stanley Genser, Juvenile Court Referee.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant M.H.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant N.B.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Deputy County Counsel, for Plaintiff and Respondent.
WOODS, Acting P. J.
INTRODUCTION
The dependency court denied a mother’s and father’s petitions for modification of prior orders on the basis of changed circumstances and terminated both parents’ parental rights. Both appeal. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In August 2008, the Department of Children and Family Services filed a petition alleging T.H. had a positive toxicology screen for cocaine at the time of his birth the week before. The Department further alleged T.H.’s mother N.B. had a 13-year history of substance abuse, tested positive for cocaine following T.H.’s birth, had a criminal history including convictions for possession of narcotics and T.H.’s sibling (T.B., born two years earlier) had received permanent placement services as a result of N.B.’s substance abuse. In addition, the Department alleged, T.H.’s father M.H. had mental and emotional problems including depression, failed to take prescribed psychotropic medication and was unable to provide regular care for T.H. According to the petition, these conditions endangered T.H. and placed him at risk for physical and emotional harm. (Welf. & Inst. § 300, subd. (b) [all further statutory references are to the Welfare and Institutions Code].)
According to the Department’s detention report prepared in September, N.B. had been brought to the hospital in May after suffering a seizure. At that time, she was 23 weeks pregnant and admitted using cocaine and alcohol. Two weeks later she tested positive for cocaine at a prenatal visit. When T.H. was born in July (at 33 weeks) and tested positive for cocaine, he was placed in the Neonatal Intensive Care Unit, on a “Hospital Hold” due to his and N.B.’s positive drug tests. T.H.’s doctor said he was “doing well.” He had “slight tremors but nothing concerning at th[at] point.” T.H. was being observed for apnea as a result of his premature birth. According to one of T.H.’s nurses, when she visited T.H. the day after he was born, N.B. “didn’t know what to do with [T.H.;] she wasn’t appropriate.” Four days after his birth, one of his nurses reported, “This child really had no withdrawal symptoms. The Neonatal Abstinence scoring was 1. Withdrawal is over 8.”
N.B. (then 26) said she had been using cocaine since the age of 15 and had “relapsed.” She said she had been in treatment programs before and had been sober the longest from ages 18 to 22. Asked whether she had entered any program during her pregnancy, she said, “I was going to this past Friday, but something came up I don’t remember.” Asked when she had last used, she said she didn’t want to “put [her] foot in [her] mouth.”
M.H. was also interviewed at the hospital after T.H.’s birth. He said he had known N. B. for two years and they had “been on and off for the last six months.” He denied any drug history of his own and denied knowing about N.B.’s drug use. M.H. (then 30) said he had been on disability since the age of 22 due to a diagnosis of depression, and he was convicted of grand theft at the age of 19. He said he received mental health services but could not provide the date of his last psychiatric appointment and said he was in the process of getting a new psychiatrist. He said he took Depakote “every now and then, ” but it made him sleepy. M.H. wanted T.H. to go home with him. M.H. said he lived by himself and could take care of T.H.
Three days after T.H.’s birth, N.B. and M.H. attended a Team Decision Meeting with social workers and a facilitator. N.B. admitted going to prison for cocaine sales and said she was on parole for selling drugs. She said she had a history of domestic violence in past relationships. Her criminal history included multiple arrests and convictions for narcotics possession and prostitution. Both N.B. and M.H. were given referrals. Based on N.B.’s chronic and current unresolved substance abuse history and M.H.’s unresolved mental health history, the Department said the family was at “very high” risk for future abuse and recommended continued detention and placement for T.H. to protect his safety.
In early August, the dependency court ordered an investigation into the suitability of placement with M.H. or Z.A. (M.H.’s former foster sister), and ordered a Regional Center referral. N.B. did not appear.
In early September, the dependency court ordered T.H. released to Z.A. as a non-relative extended family member. (He had remained detained in the hospital until that time.)
Later that month, the Department filed an amended petition, adding the allegation M.H. had a diagnosis of schizo affective disorder, requiring regular mental health treatment including but not limited to taking prescribed psychotropic medication, but he had not followed through with his treatment recommendations to take his medication as prescribed and participate in therapy. In addition, the Department alleged, M.H. had a history of substance abuse, including methamphetamine, cocaine and alcohol, which endangered T.H.
The Department submitted M.H.’s records from the Los Angeles County Department of Mental Health. According to these records, M.H. had reported a history of physical abuse as a child and said his biological mother “really messed me up a lot.” He had given up another child due to his homelessness. M.H. had been experiencing mental health issues, including depression, suicidal ideation, paranoia and anger, since at least 2001, and he had been prescribed a number of medications. In 2003, he had admitted putting a knife to his neck while thinking of suicide and cut his own hand because he felt he had nothing to live for. He was hospitalized in 2005 after stabbing himself in the neck multiple times. As of June 2008, his prognosis was “guarded.”
According to these records, M.H. also had a history of using drugs, including amphetamines, crack/cocaine and marijuana, sometimes on a daily basis, from at least 2004. When interviewed in this regard, M.H. continued to insist he “never used any drugs.” That month, the dependency court ordered weekly drug and alcohol testing for M.H. and continued the proceedings to the following month.
At the continued combined pretrial resolution conference and jurisdiction and disposition hearing, N.B. did not appear although the dependency court found she had been served with notice of the hearing. M.H. appeared, waiving his right to a contest. (He said he believed N.B. was in Lancaster with a friend.) The dependency court sustained the first amended petition, finding N.B.’s and M.H.’s conduct placed T.H. at risk with no reasonable means to protect him without his removal. Pursuant to a mediation agreement M.H. signed, the court agreed to strike the allegation regarding M.H.’s history of drug use on the condition that he provide eight consecutive, random, negative drug tests. However, if M.H. missed a test or tested positive, he was required to enroll in a Department-approved drug rehabilitation program.
The dependency court denied reunification services for N.B. finding reunification would not be in T.H.’s interest (§ 361.5), but ordered monitored visitation for her (not to take place at the same time as M.H.’s visitation). The court ordered reunification services for M.H., including individual and psychiatric counseling and parenting classes, along with monitored visits at least three times per week, two hours per visit.
The court scheduled a six-month review hearing (§ 366.21, subd. (e)) for March 2009, cautioning M.H.: “When we come back on that date[, ] if you are still unable to reunify[, ] this court has the authority to extend reunification services to you for a total of 18 months from the date [T.H.] was detained. But if we come back in March..., and you’re not complying with the treatment plan, and you’re not making a good faith effort to do so, then six months of reunification services will be all that you get.” M.H. said he understood. The court continued, “If you’re having trouble complying with the treatment plan and you’re not getting the help you need or not visiting your child as much as you believe you[’]r[e] entitled to[, ] call your lawyer. Don’t wait until March of next year to deal with it.” M.H. said, “Okay.”
In its report for the six-month status review, the social worker assigned to the case in early December (Sungmie Jahng) stated T.H. was “a happy child, ” “well bonded” to Z.A. and Z.A.’s mother who babysat T.H. full time and “actively interacting” with Z.A.’s three-year-old son. No medical or developmental issues were noted. Z.A. wanted to adopt T.H. if M.H. was unable to reunify with him.
After the social worker left several messages for M.H. in early December, M.H. called later that month and said he had moved and provided a new address. He said he was in individual and psychiatric counseling and would call back the following day with his therapist’s contact information. He also said he would start parenting class the following week. When he did not call back, the social worker tried to reach him by phone (but his phone message box was full) and by mail but received no response. According to Z.A., the last time M.H. had visited T.H. had been in November.
In late January 2009, M.H. called the social worker and said he had been visiting two to three times per week; he said he didn’t know why Z.A. was saying he had not done so. Shortly thereafter, the Department learned M.H. had been arrested in mid-December and released in mid-January, but M.H. did not disclose this information.
Also, although M.H. had four negative drug tests in October and November 2008, he had three “no show[s]” in January and February 2009 (all after his release from jail) so the social worker gave him a referral to a drug rehabilitation program. Although he had been reporting since mid-December he would start parenting class the following week, he attended two classes (of a ten-class session) in mid-March. When the social worker contacted the counseling center to which M.H. had been referred, she learned M.H. had attended two counseling sessions (one in November, one in March) and one psychiatric session (in late February).
Since November 2008, Z.A. said M.H. had visited T.H. a total of 11 times: once during the last week of January, six times in February and four times in March. He first visited T.H. three times in one week during the last week of February. He stayed about an hour to an hour and a half on each occasion.
Later, in March, M.H. called the social worker and told her he had visited T.H. that day and the day before. When the social worker called to verify, Z.A. said M.H. had not visited on either occasion. Rather, she said, “[H]e just called me and said, ‘I just want to tell you what I told the social worker so we’re on the same page, ’ and when I told him that I will not lie, he got really upset.” M.H. called the social worker again and said he wanted the visits at the Department’s office “because it’s all messed up[, ] man[, ] I just can’t even talk to them.” The social worker noted M.H.’s partial compliance with the case plan but expressed concern for his “inconsistent performance[]” and “contrasting attitudes from one week to the next” as well as his “dishonesty regarding visits” and effort to “coerce [Z.A.] to make false statements to [the Department].” The Department requested termination of reunification services for M.H.
With respect to N.B., the Department reported she had called the social worker in late January to request a monitored visit. Z.A. said it was fine for N.B. to contact her to schedule, and the social worker left N.B. several messages in this regard. In late February, Z.A. said N.B. was supposed to visit after M.H., but she never came. When N.B. called the social worker again in March asking to see T.H., the social worker told her to call Z.A. to arrange a visit, but N.B. called back, asking that T.H. be moved to another foster home as she was having difficulty communicating with Z.A.
In late March, N.B. had a monitored visit with T.H. in the Department’s office. She had long, dangling earrings the social worker asked her to remove and a metal piece pierced below her lower lip. She “appeared nervous when handling [T.H.].” She told the social worker, “I was released from jail a couple of month[s] ago and my attorney told me without my signature nobody can adopt my baby. He said that I have 18 months before [the court] can take my baby away.”
At the March six-month status review hearing, N.B. appeared for the first time and confirmed the address listed on the Department’s report was correct (adding her apartment number “6”). She was appointed counsel and her request for a continuance to the following month was granted. M.H. set the matter for contest in May.
In the meantime, in early April, Z.A. contacted the Department and said she could no longer care for T.H. She said she was six months pregnant with her second child, her boyfriend just left her, she had also just lost her job and was looking for a new one and she had to rent a room at a friend’s grandmother’s house. She said, “This is the last thing I would do if the circumstances were different, ” but with court-ordered visitation three times per week, “[I]t is more than I can handle right now.” The Department then filed a petition (§ 387) to remove T.H. to a new temporary placement under the circumstances, but notice was not proper for N.B. so the matter was continued for another week.
On the continued hearing date in April, the Department filed a subsequent petition (§ 342), alleging M.H. had been convicted of willful infliction of corporal injury (Pen. Code, § 273.5, subd. (a)) against N.B. and was under the influence of alcohol at the time. Further, M.H.’s history of alcohol abuse and domestic violence against T.H.’s mother placed T.H. at risk of severe physical and emotional harm. According to the subsequent detention report, N.B. left voice mail messages for the social worker and current caregiver that month, saying M.H. was an alcoholic and would not stop drinking. She said he beat her “all day long every day and any day he can.... Please don’t let [M.H.] get [T.H.] because he gets drunk and can’t control his drinking. He’s not capable of caring for [T.H.] I’m afraid he might hurt [him].” M.H. said he had no idea why N.B. would say such things for no reason. All three matters (the continued status review hearing and the hearings on the supplemental and subsequent petitions) were set for contest in May.
The December 2008 incident was recorded on a security camera and resulted in M.H.’s conviction in January 2009.
The Department reported that M.H. had four negative drug tests between late March and early May. In April, he enrolled in a drug treatment program with group and individual counseling.
As of May, T.H.’s foster mother reported he had started baby food in April and was a “happy baby” and an “easy baby.” At nine months, he appeared to be healthy with no developmental delays. By that time, M.H. visited T.H. three times a week, and N.B. visited once a week. Due to her age, the foster mother said she was not interested in providing a permanent home for T.H. and wanted to assist the Department with T.H.’s transition to an adopted family who would be able to give him their full attention.
At the hearing in May, the petition to remove T.H. from Z.A.’s home was dismissed as moot as T.H. was in a new temporary foster placement. The subsequent petition was settled with amended language regarding M.H.’s conviction for domestic violence against N.B. while under the influence of alcohol. The six-month status review hearing proceeded by argument.
M.H. argued for further reunification services. The dependency court noted M.H. had no excuse for his failure to visit consistently during late 2008 and early 2009. Moreover, he was not in compliance with his case plan. His recent rehabilitation efforts notwithstanding, M.H. had waited almost nine months after T.H.’s original detention. Finding no substantial probability T.H. would be safely returned to either parent within the next six months, the dependency court terminated reunification services. The court ordered one-hour weekly monitored visits for both parents and scheduled a permanent plan hearing (§ 366.26) for September.
In July, M.H. filed a petition requesting unmonitored visitation and reinstatement of reunification services as he had completed two parenting classes, a substance abuse program and an anger management program and had almost completed a domestic violence program since termination of services. He said he had also been receiving counseling and was taking medication. (§ 388.) He submitted documentation of his participation in these programs. He said he visited T.H. as often as he could, played with him and encouraged him to stand and crawl. He said he and T.H. had a close bond and denying further services would be detrimental. The Department reported T.H. had attended 9 of 12 scheduled monitored visits and noted his prior noncompliance.
In August, N.B. filed her own petition for modification (§ 388) requesting reunification services and unmonitored visitation with discretion to liberalize to overnight visits. She said she was now clean and sober and able to provide a safe home for T.H. She said she was visiting weekly, loved T.H. and wanted to continue to develop the bond she had with him. The Department reported N.B. had attended only 4 of 10 scheduled visits between late April and mid-July. She appeared nervous with T.H. and often asked the monitor what to do. In addition, she did not update her address, but mail was returned as undeliverable.
In July, prospective adoptive parents (Mr. A and Mrs. B who already had an approved home study) attended a “placement presentation” with T.H.’s assigned social worker (Jahng), the adoption case worker (Landa) and a representative from the foster family agency involved. In mid-July, the prospective adoptive parents met with T.H. at his foster home. Two days later, T.H. was placed with the prospective adoptive parents who were “thrilled” and looking forward to finalizing T.H.’s adoption. T.H. was reportedly doing “very well.” By August, the Department reported, T.H. had made a smooth transition and had developed an appropriate attachment to his prospective adoptive mother. He appeared physically healthy and was developing age appropriately. Both M.H. and N.B. had failed to appear for a monitored visit and had not cancelled.
Although he demonstrated no problems, T.H. had been referred for a Regional Center assessment in June which was pending as of October. T.H.’s prospective adoptive mother was a teacher and had a biological three-year-old daughter. T.H. was attending “junior preschool” and was a “very, very happy child. He is friendly and smiles at anyone and everyone.” He was very vocal and expressive, was able to take a few steps unassisted, danced to music and demonstrated a strong bond with his three-year-old foster sister and extended family.
From May to October, M.H. had attended about 60% of his visits with T.H. He was observed to be abrupt and authoritarian, and T.H. did not appear to be comfortable around him. N.B. had attended about 30% of her visits during this timeframe. She lacked parenting skills, showed no emotion and appeared relieved when visits ended as T.H. cried a lot with her although he stopped and smiled when he was returned to his prospective adoptive parents’ arms and was not emotional at the end of visits. N.B. had completed a substance abuse program in August but was arrested for driving under the influence in September.
The dependency court noted the evidence demonstrated neither a substantial change in circumstances nor that it would be in T.H.’s best interests to grant either parent’s petition for modification. Then proceeding with the permanent plan hearing (M.H. testified briefly and said T.H. had called him “Dad”), the dependency court found M.H.’s and N.B.’s contact with T.H. had been very limited, and there was no evidence of a substantial bond with either of them. There was no evidence any detriment from terminating M.H.’s and N.B.’s parental rights would outweigh the benefit to T.H. of permanency through adoption. The court found by clear and convincing evidence that T.H. was adoptable and terminated M.H.’s and N.B.’s parental rights, ordering adoption as T.H.’s permanent plan.
M.H. and N.B. appeal.
DISCUSSION
N.B.’s Appeal:
According to N.B. (and M.H. who joins in N.B.’s opening brief), the dependency court’s termination of parental rights was premature in light of T.H.’s multiple drug exposures and the fact he was in his third placement for only three months. We disagree. A “prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, original italics.) The record establishes T.H. was adoptable.
Moreover, to the extent N.B. complains about the dependency court’s limited visitation order, not only did she fail to request more visitation, but she did not attend many of the visits the court did order for her. She has failed to demonstrate an abuse of discretion under the circumstances of this case. (In re Megan B. (1991) 235 Cal.App.3d 942, 949, 953; In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.)
M.H.’s Appeal:
According to M.H., he met his burden to show changed circumstances and that granting his petition for modification (§ 388) was in T.H.’s best interest. We disagree. At best, M.H. demonstrated changing circumstances, which is insufficient. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Moreover, as the factual summary establishes, M.H. has failed to demonstrate error in the dependency court’s determination the requested modification was not in T.H.’s best interests at that point in the proceedings. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
Further, M.H.’s argument he established the “exceptional circumstances” required to prevent termination of parental rights pursuant to section 366.26 ignores the weight of applicable authority. Not only did he fail to establish he maintained regular visitation, but he failed to demonstrate that the benefit of continuing the relationship would promote T.H.’s well-being “to such a degree as to outweigh the well-being [T.H.] would gain in a permanent home with new, adoptive parents.” (In re Jason J. (2009) 175 Cal.App.4th 922, 936, original italics.) We find no error.
DISPOSITION
The orders are affirmed.
We concur: ZELON, J., JACKSON, J.