Opinion
B234239
01-24-2012
In re MICHAEL Q., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CINDY Q., Defendant and Appellant.
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK42172)
APPEAL from orders of the Superior Court of Los Angeles County, Elizabeth Kim, Juvenile Court Referee. Affirmed.
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
Appellant Cindy Q. (Mother) is the mother of Michael Q. (born Nov. 2010). His father, Carlos C., is not a party to this appeal. Mother has six other children, none of whom are parties to this appeal. Three of the children, Trina R., L.R., and Nikko P., were prior dependents of the juvenile court. The other three are not in Mother's custody. Shortly after he was born, Michael was taken into custody by the Department of Children and Family Services (the Department) and placed in foster care. The Department filed a petition as to Michael pursuant to Welfare and Institutions Code section 300, subdivision (b) on November 18, 2010, and the allegations in the petition were sustained on December 13, 2010. On May 24, 2011, the juvenile court denied Mother's section 388 petition requesting reunification services and terminated her parental rights to Michael. She appealed these orders. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother admitted to social workers that she began taking drugs 25 years ago. She had enrolled in several drug treatment programs since 2001. She had an extensive criminal history beginning in 1997, with a conviction and many arrests relating to controlled substances. At the outset of this case in 2010, Mother was on probation. Mother admitted using drugs when she was pregnant with Michael.
A petition was filed in 2000 on behalf of her children Trina R. and Nikko P., which alleged that she was incapable of caring for them due to her drug addiction. Trina and Nikko were placed with their father. In 2008, a juvenile dependency petition was sustained on behalf of her sixth child, L.R. The juvenile court terminated Mother's parental rights to L. in January 2011, and we affirmed the termination order in an opinion filed September 19, 2011. (In re L.R. (Sep. 19, 2011, B231466) [nonpub. opn.].)
During the pendency of L.'s case, Mother was enrolled in a substance abuse program but was dismissed from that program for failure to abide by its rules. In November 2010, when a social worker visited Mother at a new treatment facility, she learned that Mother had recently given birth to Michael. The Department filed a petition shortly thereafter and Michael was removed from Mother's custody and care. Mother was granted monitored visitation.
On December 13, 2010, the court sustained the allegations in the petition, denied reunification services to Mother, and set a section 366.26 hearing for April 11, 2011. Michael was placed in the home of Laura W.
In December 2010, Mother was arrested due to outstanding warrants and incarcerated for three weeks. When she was released, she returned to her drug treatment program.
On January 10, 2011, Mother filed a section 388 petition requesting reunification services and vacation of the section 366.26 hearing. The court summarily denied the petition on January 19, 2011.
In April 2011, the social worker reported that Michael was doing well in the home of Laura W. and she was interested in adopting him. He exhibited behavior indicative of a healthy attachment to her. Mother had monitored visits with him twice a week for three and one-half hours per visit. She was very attentive to him and the two would laugh, sing, and play together.
On April 11, 2011, Mother filed a second section 388 petition that was essentially identical to the petition filed in January and again requested reunification services. In support, Mother attached documents from the drug treatment program showing that she had willingly participated in all programs and had more than 10 negative drugs tests.
The section 388 and section 366.26 hearings took place on May 24, 2011. The Department recommended no reunification services for Mother because she had never successfully completed a drug rehabilitation program, was still dealing with drug addiction issues, and was not able to provide a stable home environment for Michael. Mother testified that she had been enrolled in the Shields for Families drug rehabilitation program since May 2010 but had not yet graduated. She was drug testing once a week and participating in parenting and relapse prevention programs. Her last positive drug test had been in September 2010. She visited Michael twice a week and he was happy during the visits and anxious when she left.
The court questioned Mother and she claimed that her drug history was more than 10 years, not 20 years, as alleged. She admitted she was three months pregnant with Michael when she started the program in May 2010, and tested positive for methamphetamines in July, August, and September 2010. She claimed that she was incarcerated for a warrant in December 2010 because there was a miscommunication about when she had to appear in court.
On cross-examination by the Department, Mother admitted that she started using drugs at age 12, had other children in the dependency system, and had attended treatment programs before. She also admitted that even after long periods of sobriety, she had relapsed. Her longest period of sobriety was 10 years.
The court noted that it was very familiar with Mother and her history with the Department because it handled a prior case involving Mother's daughter, L. It stated: "Taking into consideration the mother's history, her length of time that she has used drugs, and her history of a period of sobriety, this is not a change of circumstances. We have been at this point before . . . today. There is no indication that she has successfully completed the program. Additionally, she testified that she does not have a sponsor. At best, these are changing circumstances so the first prong has not been satisfied. With respect to the second prong of best interest and, in order to be successful, [Mother's counsel] must show that it would be in the child's best interest to offer the mother reunification services as opposed to offering the [child] permanency. The court cannot make a finding based on the facts in the case. 388 petition is denied." Later, after argument by counsel on the section 366.26 issues, it terminated Mother's parental rights as to Michael and found the permanent plan of adoption appropriate.
DISCUSSION
I. The Section 388 Petition
Mother contends she showed changed circumstances because she had maintained her sobriety for more than eight months, remained actively enrolled in a treatment program, and continued to participate in parenting classes. She argues there was no evidence that she would likely relapse, as she "remained committed to her drug-free lifestyle" and maintained her sobriety during Michael's "entire dependency." She also contends that Michael's best interests would be served by granting her reunification services because she had consistent positive visits with him and occupied a parental role.
Section 388 provides that a juvenile court may modify, change, or set aside previous orders when the moving party presents new evidence or demonstrates a change of circumstances and establishes that the proposed change is in the child's best interests. (§ 388; Cal. Rules of Court, rule 5.570; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.]" (In re Casey D., supra, at p. 47.) We review the denial of a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Mother's claim that she has maintained her sobriety during the entire period of Michael's dependency, while laudatory, is too little, too late. She has been battling drug addiction for most of her life. Mother attended counseling and enrolled in treatment programs for over 10 years but has failed to complete any program or conquer her addiction. Mother was asked to leave the drug treatment program in which she was enrolled when Michael was born. She admitted that she had used drugs while pregnant with Michael. We recognize that at the time of the hearing, Mother was in a residential drug program, but she had not completed it. In fact, she had not yet progressed to transitional housing, so there was no indication she would successfully maintain her sobriety. Although Mother had tested clean for eight months, she admitted that she had relapsed several times in the past, even after long periods of sobriety. In light of her lengthy drug history, we cannot say that eight months of sobriety is a clear indicator that she has "changed her life," as she claims.
In addition, Michael had lived with Mother for only a few days immediately after his birth. He was doing well with his foster mother, who was very interested in adopting him. Mother did not show that a change would be in the child's best interests, even though her visits with him were successful. It was important for Michael to form a long-lasting emotional attachment to his prospective adoptive family. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924.)
As Mother did not show there was a change of circumstances or that it was in Michael's best interests to offer Mother reunification services, the court's denial of Mother's section 388 petition was not an abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358; In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
II. The Termination of Parental Rights
Mother contends the juvenile court erred in terminating her parental rights because she and Michael share a strong bond, she consistently visited and positively interacted with him, and she occupies a parental role in his life.
Pursuant to section 366.26, subdivision (c)(1), once the juvenile court determines a child is adoptable, the court shall terminate parental rights and order the child placed for adoption unless it finds a compelling reason for determining that termination would be detrimental to the child due to specified circumstances. One such circumstance is where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Mother asserts this exception applies here.
It is the parent's burden to show that termination would be detrimental. (In re Erik P. (2002) 104 Cal.App.4th 395, 401.) "To meet the burden of proof for the section 366.26, subdivision (c)(1)[(B)(i)] exception, the parent must show more than frequent and loving contact or pleasant visits. [Citation.] . . . The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.]" (In re L. Y. L. (2002) 101 Cal.App.4th 942, 953-954.)
To justify application of section 366.26, subdivision (c)(1)(B)(i), the relationship between the parent and child must be sufficiently significant that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 468.) The juvenile court must consider many variables, including the child's age, the length of time the child was in parental custody and in foster care, the effect of interaction between parent and child, and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689; In re Zachary G. (1999) 77 Cal.App.4th 799, 810-811.) The court must then balance the strength and quality of the parent-child relationship against the security and sense of belonging that a stable family would confer on a child. (In re Zachary G., supra, at p. 811.)
A dual standard of review applies to the juvenile court's determination of whether the exception applies. Whether a beneficial relationship exists is reviewed for substantial evidence, and whether such a relationship constitutes a compelling reason for concluding termination would be detrimental to the child is reviewed for abuse of discretion. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
Although Mother established that she and Michael maintained regular contact and enjoyed their monitored visits, she failed to show that Michael would benefit from a continuation of the parent-child relationship. With the exception of a few days after his birth, Michael had never lived with Mother and he was thriving in foster care. Mother did not demonstrate the ability to provide Michael with a safe and stable home, as she was in a residential drug program and would be moving on to transitional housing. In contrast, Michael's foster mother wanted to adopt him.
Although we do not doubt that Mother loves her child and that Mother and Michael enjoyed their visits, it is clear that the foster mother occupies the role of parent in Michael's life. Balanced against the uncertainty of Mother's sobriety and her unresolved living situation, adoption by the foster mother will confer a much stronger sense of security and belonging to Michael.
We conclude the court did not abuse its discretion by finding there was no compelling reason to preclude termination of Mother's parental rights.
DISPOSITION
The juvenile court's orders denying Mother's section 388 petition and terminating her parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
WILLHITE, Acting P. J.
MANELLA, J.