Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment and order of the Superior Court of Imperial County No. JJP01259, Poli Flores, Jr., Commissioner. Affirmed.
OPINION
HALLER, J.
Tomas G. and Mariana G. appeal a judgment terminating parental rights to their son, Tomas G. They also appeal an order denying their petitions for modification under Welfare and Institutions Code section 388. We affirm the judgment and order.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Tomas G. (Tommy) was born in September 2005 to Tomas G. and Mariana G. (the parents). He presumptively tested positive for amphetamines at birth. The San Diego County Health and Human Services Agency (Agency) detained him and initiated dependency proceedings.
Mariana admitted using methamphetamine while pregnant with Tommy. She reported that she used heroin six or seven times a day and methamphetamine two to three times a week during a nine-year period. Mariana had a lengthy history of involvement with Child Protective Services (CPS) and had lost custody of her three older children. Tomas denied drug use. He said that he did not know Mariana was using drugs during her pregnancy with Tommy. Tomas also had a CPS history, including a substantiated allegation of sexual molest. Two of his other children had been involved in dependency proceedings and were in their mothers' custody.
On October 7, 2005, the San Diego County Superior Court found that Tommy required the protection of the dependency court and transferred the case to Imperial County. On December 19 the Superior Court of Imperial County removed Tommy from the custody of his parents and ordered the Imperial County Department of Social Services (Department) to provide family reunification services to the parents.
The case plan required the parents to complete a parenting class, submit to random drug testing, maintain a safe and adequate home, cooperate with the social worker and report any housing changes within three days. Mariana was also required to participate in individual counseling and to complete an out-patient substance abuse rehabilitation program.
In April 2006 the Department reported that Mariana entered a substance abuse rehabilitation program on December 25, 2005, and left the program on December 31. The parents did not maintain contact with the social worker. Until February 2006 the parents occasionally arranged visits with Tommy through his foster parent. They did not comply with any other aspect of their case plans. Despite the social workers' efforts to contact the parents, their whereabouts became unknown.
The six-month review hearing was held on June 7, 2006. The parents were present. The court found that the parents failed to participate in their court-ordered treatment plans and made no progress in mitigating the causes of Tommy's dependency. The court terminated reunification services and set a section 366.26 hearing.
In October 2006 the parents each filed a section 388 modification petition asking the court to place Tommy with them or to provide an additional period of reunification services. They provided documentation of their participation in drug treatment services.
On January 24 and 29, 2007, the court held hearings on the parents'section 388 modification petitions and the Department's recommendation to terminate parental rights under section 366.26. Mariana testified that she graduated from a residential substance abuse treatment program on January 23, 2007. She had a sponsor and was on step five of her 12-step program. Her visits with Tommy "slack[ed] a lot" during spring 2006 Tommy was "very bonded" to his foster mother and she was doing "a very good job" raising him.
Tomas testified that he and Mariana were arrested in July 2006 and ordered to participate in Proposition 36. At that time, he tested positive for methamphetamine. Tomas did not recall visiting Tommy between February 5 and September 25, 2006. At a recent visit, Tommy called him "dada."
"Proposition 36 mandates probation and diversion to a drug treatment program for those offenders whose illegal conduct is confined to using, possessing, or transporting a controlled substance." (People v. Canty (2004) 32 Cal.4th 1266, 1275.)
The social worker testified that Mariana had completed a 60-day substance abuse treatment program and tested clean. She believed Mariana required a more intensive program because of her lengthy history of drug addiction. Mariana telephoned the social worker in June and August 2006 to request visitation, but the parents' frequent moves from motel to motel made it difficult to contact them. In September the social worker transported the parents from Imperial County to San Diego to visit Tommy. They told her they did not have money for food. Recently, the social worker supervised two visits. The parents were very affectionate with Tommy, who smiled and laughed. The social worker recommended Tommy be freed for adoption by his foster parent.
The foster parent testified that the parents visited Tommy approximately eight or nine times between September 2005 and February 2006. In March Mariana contacted the foster parent twice to set up visits but because of scheduling problems and missed messages, the visits did not occur. The parents did not contact her from March until September. Since September 25, the parents visited Tommy four or five times. Although the foster mother initially favored family reunification, she considered adopting Tommy when the parents stopped visiting him. During the time he was in her care, she came to deeply love and adore him. She now wanted to adopt Tommy.
The court commended the parents for their recent participation in substance abuse treatment. Although the parents had taken concrete steps to overcome drug addiction, they did not complete their case plans. The court found the parents did not meet the burden of proof to show changed circumstances and denied their section 388 modification petitions. The court found that Tommy was likely to be adopted. Tommy did not have a significant emotional attachment to Mariana or Tomas, and the termination of those relationships would not be detrimental to him. The court terminated parental rights.
DISCUSSION
A
The Court Did Not Abuse Its Discretion When It Denied the Parents' Section 388 Modification Petitions
The parents contend the juvenile court erred when it denied their section 388 modification petitions. Mariana argues she showed a sufficient change in circumstances in that the evidence showed, and the court acknowledged, that she completed a 60-day in-patient substance abuse treatment program and displayed a genuine commitment to long term recovery. Tomas asserts section 388 requires a parent to show a substantial change in circumstances, and does not require a parent to prove his or her circumstances were completely changed. He argues he met this standard because he was actively participating in treatment services and was testing clean, and he had recently secured employment and housing.
The Department asserts the court did not abuse its discretion when it denied the modification petitions. It argues the parents did not show a change in circumstances or that it was in Tommy's best interests to modify the prior order.
Under section 388, a parent, interested person, or the dependent child (generically, petitioner) may petition the court to change, modify, or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petitioner requesting the modification has the burden to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Generally, the petitioner must show by a preponderance of the evidence the child's welfare requires the modification sought. (Cal. Rules of Court, rule 5.570(f).)
We review the grant or denial of a petition for modification under section 388 for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
In evaluating whether the petitioner has met his or her burden to show changed circumstances, the juvenile court should consider "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532 ["While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion"].)
Here, Mariana's substance abuse addiction was extremely serious. Three of her four children tested positive for drugs at birth. The record contains reports that when one of Tommy's siblings was born, Mariana put an unknown substance into her IV. Later, she excused herself during an intake evaluation and injected heroin, and fell asleep when the interview resumed. Mariana had been involved with "countless" other substance abuse treatment programs, but previously did not complete any programs. The social worker opined, and Mariana acknowledged, that she needed on-going, intensive treatment for an incurable addiction. The trial court noted Mariana's completion of a 60-day residential treatment program was remarkable. However, she needed to maintain her sobriety for a significantly longer period to show her circumstances were changed.
Under section 388, subdivision (a), the focus of a petition for modification is whether the petitioner has shown a legitimate change of circumstances. The court could reasonably conclude the nature and extent of Mariana's drug use was not easily removed or ameliorated, and she had barely started to address the other aspects of her case plan. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) Mariana did not participate in individual counseling, complete a parenting class, and she did not maintain a safe and adequate home as required by her case plan.
Although Tomas denied drug use when Tommy was detained, he tested positive for methamphetamine when he was arrested on drug charges in July 2006. Tomas lost his job and his car. He and Mariana moved from place to place. Tomas had not yet completed a substance abuse treatment program, and he did not participate in other case plan requirements. The record shows that Tomas had taken some positive steps to improve his situation, but his circumstances were far from stable. The court did not abuse its discretion when it determined Tomas did not show a legitimate change of circumstances. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
Further, the parents did not show that returning Tommy to their custody or delaying his permanent placement was in his best interests. (§ 388, subd. (a).) The trial court may consider the strength of relative bonds between the dependent children to both parents and caretakers. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) The record shows that the parents never parented Tommy. Tommy lived with the foster parent his entire life. He was thriving in her care, and she was devoted to him. The court reasonably determined it was not in Tommy's best interests to disrupt his secure, stable placement for his parents' uncertain circumstances.
In considering the parents' current and past circumstances, and Tommy's interest in remaining in the only home he had ever known, the court did not abuse its discretion when it denied the parents'section 388 modification petitions. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) The record fully supports the finding that the parents did not show by a preponderance of the evidence that Tommy's welfare required the modification sought. (§ 388; Cal. Rules of Court, rule 5.570(f).)
B
Substantial Evidence Supports the Court's Finding That the Beneficial Parent-Child Exception Under Section 366.26, Subdivision (c)(1)(A), Did Not Apply
The parents assert the court erred when it determined the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of parental rights. They contend the court's findings are not supported by substantial evidence. Their argument is without merit.
At a permanency plan hearing, the court may order one of three alternatives — adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) Once the court determines a child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We recognize that interaction between parent and child will usually confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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., supra, 27 Cal.App.4th at p. 575.)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The party challenging the ruling bears the burden of showing there is insufficient evidence to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th 567, 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
Here, the record supports the finding that the parents did not maintain regular visitation and contact with Tommy. Although there were miscommunications regarding visitation, the record shows the parents visited Tommy approximately eight or nine times in the first six months of his dependency. They did not visit Tommy from March until September 2006, and visited four or five times from September to January 2007. All visits were supervised. As the trial court noted, the amount and frequency of the parents' visitation with Tommy did not allow him to develop a significant emotional attachment to Mariana or Tomas. Infrequent contact is insufficient to establish a beneficial parent-child relationship, particularly when, as here, the parents did not occupy a parental role to Tommy at any time during his life. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) Mariana implicitly recognized this principle when she stated, "I've never been a good mother. I've never been a mother at all . . . ."
Substantial evidence supports the court's finding that termination of parent-child relationships would not be seriously detrimental to Tommy, and any benefit he might receive from the parents' visits was outweighed by the benefit that would be conferred by the security, stability, and safety of an adoptive home. (§ 366.26, subd. (c)(1); In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There is no error.
DISPOSITION
The judgment and order of the court are affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.