Opinion
D059928 Super. Ct. No. JJP02261 Super. Ct. No. JJP02262
12-21-2011
In re MARK A., JR., et al., Persons Coming Under the Juvenile Court Law. IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. CHRISTIE A. et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from a judgment of the Superior Court of Imperial County, Diane B. Altamirano, Judge. Affirmed.
Christie A. and Mark A., Sr. (together, the parents) appeal the judgment terminating their parental rights to their nearly three-year-old son, Mark A., Jr. (Mark) and their nearly four-year-old daughter, A.A. (together, the children). The parents contend that the court erred in denying their Welfare and Institutions Code section 388 petitions, in which they sought additional services, and that the court also erred in declining to apply the beneficial relationship exception to termination of their parental rights (§ 366.26, subd. (c)(1)(B)(i)). We affirm the judgment.
The children's first trial attorney supported the parents' positions in the juvenile court and filed a notice of appeal. Two and one-half months later, the children's appellate counsel filed an abandonment of the appeal. The abandonment was signed by the children's new trial counsel, who is also the children's guardian ad litem. Christie suggests that the children's brief should "be given very little weight" because there is no evidence in the record to justify the change in position. As the children's guardian ad litem, new trial counsel "has a continuing duty to advocate for the child[ren]'s best interests, including seeking dismissal of an appeal when it is no longer in the child[ren]'s best interests." (In re Josiah Z. (2005) 36 Cal.4th 664, 681.) We therefore decline to accept Christie's suggestion.
All further statutory references are to the Welfare and Institutions Code.
In their section 388 petitions, both parents sought to modify the order terminating reunification services and asked the court to "[r]eopen family maintenance services." At the hearing on the petitions, Mark A., Sr.'s, attorney stated that the parents sought further reunification services. The only statement by Christie's attorney regarding the nature of the services requested was, "If [family reunification] is the problem here, we can't go [family reunification] because the time limits have run." Ordering family maintenance services would necessarily entail the children's return to the parents' custody. (In re Calvin P. (2009) 178 Cal.App.4th 958, 963.) We conclude that the court did not abuse its discretion in denying the petitions, regardless of what type of services they requested.
I
BACKGROUND
Christie began abusing drugs around 1996, when she was 13 years old. She gave birth to a daughter when she was still a teenager, and the maternal grandparents became the caretakers of that child. Mark A., Sr., began abusing drugs around 2000, when he was 22 years old.
It is not clear from the record whether the maternal grandparents adopted Christie's oldest daughter, or whether they were that child's guardians. Mark A., Sr., is not the father of that child.
A.A. tested positive for illegal drugs at her birth in June 2007. She was taken into protective custody and was initially placed with a maternal aunt and later, with the maternal grandparents. The parents were offered reunification services. Mark A., Sr., did not comply with his case plan and the court terminated his services. In March 2008, he was sentenced to prison for receiving stolen property. In April, Mark was born. In August the court returned A.A. to Christie's custody and dismissed the dependency case. In April 2009, Mark A., Sr., was released from prison.
In July 2009, the Imperial County Department of Social Services (the Department) received a report that the parents were using drugs, A.A. had been staying with the maternal grandmother for the past three months and Mark was sometimes left in the care of the maternal great-grandmother. In July, August and September, the parents tested positive for methamphetamine. The Department offered them voluntary services, and Christie entered a drug treatment program. The social worker found a place for Mark A., Sr., in a program in San Diego, but Mark A., Sr.'s, parole officer would not allow him to leave Imperial County. In October, Mark A., Sr., was incarcerated after failing to report to his parole officer. By that time, Christie had been released from the drug treatment program and was living with the maternal great-grandmother.
By the time of the April 2011 section 388 hearing, Mark A., Sr., had been released from parole.
In November 2009, Christie participated in a detoxification program for two weeks. On November 17, the Department received a report that she was behaving erratically. The investigating social worker found Christie sitting in front of the maternal great-grandmother's home with A.A. Christie was behaving strangely and refused to take a drug test. She pushed the social worker, took A.A. inside the home and locked the door. At the time of this incident, Mark was at the maternal grandparents' home.
On November 20, 2009, the Department filed a dependency petition on behalf of one-and-one-half-year-old Mark and nearly two-and-one-half-year-old A.A. The petition alleged that the parents used methamphetamine and continued to do so after the Department offered them voluntary family maintenance services.
The children were detained with the maternal aunt. In January 2010, the court made true findings on the petition. In March, the court ordered the children placed with the maternal aunt. In April, the children were placed with the maternal grandparents. At the six-month review hearing in September, the court terminated reunification services and set a section 366.26 hearing.
The dependency petition contained two counts (§ 300, subd. (b)). The first count was based on the parents' failure or inability to supervise or protect the children, and the second count was based on the parents' inability to provide regular care due to their substance abuse. Each count contained an identical set of 16 separate factual allegations. At the jurisdictional hearing, the court entered true findings as to some of the factual allegations in the first count and dismissed all remaining allegations.
The parents filed their section 388 petitions in January 2011. In April, the court denied the petitions after an evidentiary hearing. In May, the court terminated parental rights.
II
DISCUSSION
A
The Court Did Not Abuse Its Discretion
in Denying the Section 388 Petitions
1.
Introduction
Section 388 allows the juvenile court to modify an order if a party establishes, by a preponderance of the evidence, that changed circumstances exist and that the proposed modification would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the denial of a section 388 petition for an abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
In this case, the juvenile court found that the parents had not met their burdens of showing changed circumstances, or that the proposed modification would promote the children's best interests. As to the issue of changed circumstances, the court found that the parents' periods of sobriety were short compared to their years of drug abuse, and that the parents had merely begun to make changes. As to the issue of the children's best interests, the court found that the children knew and loved the parents, but that the children had a safe and stable home with the maternal grandparents.
2.
Evidence Relating to Christie's Section 388 Petition
In August 2010, Christie was arrested and jailed for being under the influence. In November, she entered the Imperial Valley's New Creation's Women and Children's Center (the Center). She continued to live there at the time of the hearing on her section 388 petition, and the children would be able to join her there in a month or so, after a period of expanded visits. Since December, Christie had had visits with the children every other weekend, and the visits had increased in duration from two hours to five hours. The visits went well. Christie testified that the children asked if they could stay longer at visits. The children called both Christie and the maternal grandmother "mom."
At the time of the section 388 hearing, Christie was on summary probation.
At the Center Christie attended individual counseling and participated in a drug rehabilitation program. She had a negative drug test in December 2010. She was sober. She had completed an anger management course and a parenting course and was taking advanced classes in both subjects.
The Center's director had not tested Christie after December because tests were costly and the director did not suspect that Christie was using drugs.
Many years earlier, Christie had resided at the Center for approximately six months. The Center's director, who was at the Center the first time Christie resided there, testified that Christie had matured since her earlier stay, had become more serious, wanted to change her life and was taking "baby steps." Christie admitted that she had relapsed before, but said that she would not relapse again. The social worker testified that this was not the first time that Christie had claimed that she had changed and would not relapse, and that the "real test" would come when Christie left the program.
3.
Evidence Relating to Mark A., Sr.'s, Section 388 Petition
In June 2010, Mark A., Sr., had a positive test for methamphetamine. He was arrested for possessing methamphetamine and marijuana and spent three days in jail. In August, he had another positive test. In September, he entered Turning Point, a residential treatment program. After a six-month stay mandated by the criminal court, he continued to live there voluntarily and planned to continue doing so. This was the first time that Mark A., Sr., had participated in a drug rehabilitation program. He attended anger management classes and counseling sessions. He had completed a parenting program. He was doing well at Turning Point and had not used drugs since entering the program. The director of Turning Point testified that he had no reason to believe that Mark A., Sr., was using drugs, so there was no reason to incur the expense of a drug test. Mark A., Sr., testified that he had the tools to deal with stress without turning to methamphetamine. The director testified that Mark A., Sr., had become serious and had shown "a big change . . . as far as taking responsibility." The director also testified that Mark A., Sr., was "starting to make some changes," But also said that there was "room for much more change."
Mark A., Sr., had visits with the children one day a month for five or six hours. The visits went well. The children ran to Mark A., Sr., and seemed happy to see him. The children loved Mark A., Sr.; knew him as their father; and were affectionate with him. A.A. called him "Dad" and Mark called him "Daddy." A.A. hugged Mark A., Sr., and Mark said he wanted to go home with him. If the children were placed with Mark A., Sr., they would live with him at the paternal grandparents' house, where the children had once lived for a few months.
4.
Conclusion
The juvenile court did not abuse its discretion in concluding that the parents did not show changed circumstances, as opposed to changing circumstances. The parents had used methamphetamine for years and were in the early stages of recovery. Although they were doing well in their residential programs, their ability to stay sober had not been tested outside of the programs. The directors of the programs acknowledged that the parents were still in the process of changing. Christie had a history of undergoing drug treatment and later relapsing. She had been able to maintain short periods of sobriety only with close supervision. Christie had received services in A.A.'s earlier dependency case and had reunified with A.A., but relapsed within a year. Mark had failed to reunify with A.A. in her earlier dependency. In addition to the services the parents had been offered in A.A.'s first dependency, they had been offered voluntary services before this case was filed and six months of services during the pendency of this case.
Nor did the juvenile court abuse its discretion in concluding that the parents did not show that the proposed modification would have been in the children's best interests. Although there was a bond between the children and the parents, the children were comfortable in the stable home of the maternal grandparents and deserved permanency. A.A. and Mark had lived with the grandparents for virtually their entire lives because the parents' drug abuse had rendered them unable to care for the children properly. The maternal grandparents provided excellent care and the children were bonded to them. The maternal grandparents wished to provide the children a permanent home.
While the children were detained and placed with the maternal aunt, the maternal grandmother cared for the children when the aunt was at work.
Because this case was past the reunification phase, the focus was on the children's need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) There was thus a rebuttable presumption that it was in their best interests to remain in the maternal grandparents' home. (Ibid.) The court did not abuse its discretion by denying the section 388 petitions.
Mark A., Sr., argues that the court failed to consider all of his evidence, ignored his current efforts, and misinterpreted the testimony of the director of Turning Point. The record does not support these contentions. Mark A., Sr., also asserts that the court misinterpreted and misapplied the burden of proof. In support of this assertion, he cites this statement by the court: "And I know that two counsel have mentioned that this isn't a case where parties are changing. That it's a case in which where the parties have changed. But I'm not sure that that's a hundred percent true." Mark A., Sr., claims that this statement shows that the court required him to prove that "it was 100 [percent] true he had changed," rather than proving change by a preponderance of the evidence. We disagree. Taken in the context of the court's findings, it is clear that the court was merely stating that it was not convinced by the arguments of the two attorneys.
The parents assert that we should apply the factors in In re Kimberly F. (1997) 56 Cal.App.4th 519 in our section 388 analysis. In Kimberly F., the reviewing court stated that the juvenile court should consider the following factors in determining whether to grant or deny a section 388 petition: the seriousness of the problem that led to the dependency, the reason the problem continued, the strength of the parentchild and childcaretaker bonds, the length of time the child has been in the system, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason the change did not occur sooner. (Kimberly F., supra, at pp. 530532.) A consideration of these factors would not assist the parents. Their methamphetamine abuse was a serious problem that had existed for years, and continued despite the services that the parents were offered in A.A.'s earlier dependency, the voluntary services they were offered before the instant case was filed, and the reunification services they were offered in this case. The children had been in the dependency system for nearly one and onehalf years during this case, and A.A. had been in the system for more than a year during her previous dependency. Although there was a bond between the children and the parents, the children were also bonded with the maternal grandparents and had lived with them for most of their lives.
B
The Court Did Not Err in Refusing to Apply the Beneficial
Relationship Exception to Termination of Parental Rights
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[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).) A beneficial relationship is one that "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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Whether this type of relationship exists is determined by taking into consideration "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs. . . ." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude that although the parents visited regularly, at least after they entered residential treatment, they did not show that terminating their parental rights would be detrimental to the children so as to outweigh the benefits that the children would gain through adoption. (Id. at pp. 576-577.)
The parents do not contest the juvenile court's finding that the children were adoptable.
A.A. was nearly four years old and Mark was nearly three years old. They were bonded with the maternal grandparents, and with Christie's older daughter, who lived in the maternal grandparents' home. The children were at ease in the home. The maternal grandparents wished to adopt the children. Unlike the parents, the maternal grandparents had been a constant presence in the children's lives; had provided them a loving, nurturing and stable home; and were capable of meeting their needs. The parents' visits were always supervised. The children appeared to enjoy the visits and visits were appropriate. However, A.A. stated before visits with the parents "that she is only visiting and she will be home after the visit." She sometimes resisted going to visit Mark A., Sr. The children had been waiting for permanency their whole lives while the parents continued to abuse drugs.
There is substantial evidence to support the conclusions that the children did not have "a substantial, positive emotional attachment" to the parents of the kind that would outweigh the well-being that the children would gain in a permanent, adoptive home, and that they would not be greatly harmed by the severance of the relationship with the parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There is thus substantial evidence to support the court's finding that the beneficial relationship exception did not apply.
The maternal grandfather testified that he would continue to allow the parents to visit the children after the maternal grandparents adopted the children. Christie argues that the court erroneously relied on this testimony in terminating parental rights. Although the court mentioned the testimony, it did not rely on it in declining to apply the beneficial relationship exception. The court declined to apply the exception because there was no testimony that convinced the court that there was "a parental/child relationship as opposed to just another familial relationship" between the children and the parents.
Mark A., Sr., argues that the court's finding "was not based on a clear understanding of the law . . . ." The record does not support this argument.
III
DISPOSITION
The judgment is affirmed.
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AARON, J.
WE CONCUR:
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NARES, Acting P. J.
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MCINTYRE, J.