Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ117585, Harry A. Staley, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
King, J.
I. INTRODUCTION
Defendant and appellant Y.D. (Mother) is the mother of two girls, A.B. and S.B., born, respectively, in April 2006 and February 2008. On August 10, 2010, the juvenile court denied Mother’s section 388 petition for further reunification services, terminated parental rights, and placed the girls for adoption. (Welf. & Inst. Code, §§ 388, 366.26.) Mother appeals, claiming her section 388 petition was erroneously denied and insufficient evidence supports the juvenile court’s finding that the parental benefit exception to the adoption preference did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We reject these claims and affirm the challenged orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. FACTS AND PROCEDURAL HISTORY
A. Background
A.B. and S.B. came to the attention of the Department of Public Social Services (DPSS) shortly after S.B. was born in February 2008. Mother tested positive for methamphetamine during her pregnancy with S.B., first in November 2007 and again on February 1, 2008, only several days before S.B. was born. Around February 10, the girls’ father, E.B., admitted he tested positive for methamphetamine after using a home drug kit.
E.B. is not a party to this appeal.
In late February 2008, the parents enrolled in a substance abuse treatment program though the family preservation court. They failed to appear for three scheduled drug tests between September and December 2008, and were terminated from the program in December 2008 after they both tested positive for methamphetamines. In January 2009, the parents agreed to enroll in a substance abuse program but failed to do so.
Then, on February 3, 2009, the social worker and two sheriff’s detectives went to the parents’ home for a visit. At that time, the parents appeared to be under the influence of methamphetamine, and admitting using the drug one to several days earlier. Spoiled food and trash, drug paraphernalia, and sharp knives and tools were found in the home within reach of the girls. A razor blade and bloody tissue, consistent with drug use, were found on the floor near the girls’ bedroom.
During the February 3 visit, the parents were arrested for being under the influence of methamphetamine and child endangerment, and the girls were detained. On February 5, a petition was filed alleging the girls were at risk of harm due to the parents’ substance abuse and general neglect for the health and safety of the girls. (§ 300, subd. (b).) At the detention hearing on February 6, the court ordered the girls detained outside the parents’ custody and supervised visitation for the parents. At this time, A.B. was nearly three years old and S.B. was barely one year old.
When interviewed on February 17, both parents admitted using methamphetamine on February 2. Mother said she was using methamphetamine around twice each month, and had a history of abusing marijuana. She said she no longer used marijuana, however; she began smoking marijuana at age 13 but stopped at age 17.
Mother was 20 years old in February 2009. She was working part-time in a grocery store and wanted to complete her high school education. She had been dating the girls’ father, E.B., for four years and had a good relationship with him. Mother denied domestic violence between herself and E.B., but said her parents fought physically. She was estranged from her mother and family, and her support system consisted of E.B.’s parents. When Mother was 15, her mother was hospitalized for suicidal ideation and later became more and more involved in drugs.
B. Jurisdiction and Disposition (March 2009)
In the jurisdictional/dispositional report, the social worker wrote that Mother and E.B. appeared “very eager” to begin services to reunify with the girls, though they had not benefited from “intensive services previously offered” and were found under the influence of methamphetamine in the presence of the girls. The social worker believed the parents were codependent, had minimized their drug use, and were unable to see how it affected the safety of the girls. The parents were advised they would have six months to reunify with the girls, and both said they needed a substance abuse program.
At the jurisdictional/dispositional hearing on March 3, the court sustained the allegations of the petition and declared the girls dependents. The parents’ approved case plans included general counseling, parenting and substance abuse programs, and random drug testing. Supervised visitation was continued for both parents.
C. Six-month Review (September 2009)
In July 2009, DPSS requested that the parents be allowed overnight/weekend visits with the girls. The parents had “diligently” worked on their case plans. They had completed a 12-week parenting class, continually tested negative for any drugs, and their home was sanitary and well kept. The girls had been placed with a paternal aunt since May 2009, following their initial placement in foster care.
The parents were allowed unsupervised visits in August 2009, but not overnight or weekend visits. Mother began unsupervised visits with the girls in the paternal aunt’s home, but the paternal aunt continued to supervise E.B.’s visits. The girls were very close to Mother and were very happy when they got to spend time with her. Mother took an interest in the lives of the girls and gave as much financial assistance to the paternal aunt as she was able. E.B. also showed interest in mitigating the problems that caused him to lose custody of the girls.
By August 2009, the parents were living in a two-bedroom apartment and were able to pay their bills without assistance. Mother was now working full-time at the grocery store, and father was also employed. The parents were committed to each other and keeping their family together. They had a strong support system in the paternal family.
Both parents said they understood the harm they had caused the girls, had learned a lot from their parenting classes, and were putting what they had learned into practice during their visits with the girls. The parents had not begun attending individual counseling sessions, however. DPSS felt counseling was important because it would help the parents understand the triggers that caused them to abuse drugs.
At the six-month review hearing on September 3, the court continued the parents’ reunification services for six more months and authorized overnight and weekend visits on the condition the parents remain in full compliance with their case plan, including not missing any drug tests and continuing to test negative on all drug tests. Though DPSS believed the girls would suffer detriment if returned to the parents at that time, it believed the girls would likely be returned to the parents by the time of the 12-month review hearing if the parents continued to progress in their case plans.
D. Twelve-month Review (April 2010); Services Terminated
The girls were placed with their paternal grandparents in October 2009, because the paternal aunt could no longer accommodate them. That same month, the parents completed their substance abuse programs. The parents had overnight and weekend visits with the girls until late November 2009, when DPSS discovered their apartment had no gas or electricity. Thereafter, DPSS allowed the parents to visit the girls at the paternal grandparents’ home until their utilities were reconnected. On December 30, the parents moved out of their apartment because they could no longer afford to pay rent. They moved into a house with roommates, and had unsupervised visits with the girls during the day.
By early 2010, it was clear that the parents were failing in their case plans. On January 20, DPSS received a referral alleging that the parents smoked methamphetamine around the girls, apparently during a previous overnight visit in the parents’ home, and that E.B. had dragged A.B. down a staircase by her legs while her head bounced off the steps. The allegation also stated that the girls cried the entire time they were with the parents. DPSS was investigating the allegation.
On January 31, the parents were cited for being in a public park after hours and were arrested for outstanding misdemeanor warrants. On February 10, both parents tested positive for methamphetamine, E.B. also tested positive for amphetamines, and both parents admitted using drugs. Also, both parents were no longer employed and neither had enrolled in counseling. In late February, the parents moved without providing DPSS with their current address, and their cellular telephone number was no longer working.
DPSS recommended terminating the parents’ services at the 12-month review hearing on April 7. Both parents attended the hearing. Their attorneys told the court they were enrolled in MFI recovery and were requesting six more months of services. Alternatively, if the court was unwilling to extend their services, the parents planned to continue in MFI recovery and file a section 388 petition by August 2010, 18 months after the girls were detained.
At the April 7 hearing, the court terminated the parents’ services and scheduled a section 366.26 hearing for the girls on August 9, explaining that given the parents’ recent positive drug tests it could not find it was likely the girls would be returned to the parents by the 18-month mark in August 2010. Still, the court encouraged the parents to stay in their programs and told them they would be “in a good position to modify a court order” if they got clean and sober.
E. The Section 388 Petitions andSection 366.26 Hearing (August 2010)
In its section 366.26 report filed on July 21, DPSS recommended terminating parental rights and placing the girls for adoption. The girls continued to live with their paternal grandparents, with whom they were placed on October 6, 2009. The paternal grandparents loved the girls very much and were willing to adopt them.
The parents were visiting the girls whenever they had time, as they spent most of their time looking for employment. DPSS was supervising the visits at a McDonald’s restaurant in Banning, where the parents played with the girls and bought food for them.
Mother and E.B. filed section 388 petitions on August 6 and July 30, respectively, requesting reinstatement of their services and the vacation of the section 366.26 hearing. Mother had been enrolled in the “MFI substance abuse day treatment program” since March 16. E.B. had been on the waiting list for the program and was accepted into the program on July 15. Both parents submitted they were bonded with the girls, and granting their requested relief would serve the best interests of the girls.
On August 10, the court considered and denied the parents’ section 388 petitions, then proceeded with the scheduled section 366.26 hearing. The court found the girls were likely to be adopted, and the benefits to the girls of adoption outweighed the benefits of continuing parental rights. Mother appealed the court’s August 10 orders. E.B. did not appeal.
III. DISCUSSION
A. Mother’s Section 388 Petition Was Properly Denied
Mother claims the court erroneously denied her section 388 petition because she demonstrated changed circumstances and also showed that her requested relief—reinstating her services and vacating the section 366.26 hearing—would serve the best interests of the girls. We disagree.
A parent may petition the juvenile court to change, modify or set aside a court order if the parent demonstrates by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) changing the order would serve the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529; § 388.) The petition is addressed to the sound discretion of the juvenile court, and the court’s ruling on the petition will not be overturned on appeal unless the court clearly abused its discretion—that is, unless the court’s ruling was “arbitrary, capricious, or patently absurd.” (In re Stephanie M., supra, at pp. 318-319; In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].)
The juvenile court did not abuse its discretion in denying Mother’s petition, because Mother did not demonstrate either changed circumstances or that reinstating her services and vacating the permanency hearing would serve the girls’ best interests. Mother enrolled in the MFI substance abuse program on March 16, 2010, following her early 2010 relapse. The program included substance abuse, parenting, individual counseling, and 12-step meetings. But as the juvenile court pointed out at the hearing on the petition, Mother did not show she tested negative for drugs until July 2010, only five weeks before the hearing. The court said, “a five week period of sobriety is not a sufficient showing [of] changed circumstances, especially in light of the treatment record and performance record of the [M]other through April [2010].” To be sure, Mother relapsed in late 2008 and again in early 2010, despite having had extensive substance abuse services since February 2008. Mother showed her circumstances were changing, but not changed. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).)
For substantially the same reasons, Mother did not show that granting her petition would serve the girls’ best interests. As the court in Casey D. pointed out: “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, dos not promote stability for the child or the child’s best interests.” (Casey D., supra, 70 Cal.App.4th at p. 47; see also In re Nolan W. (2009) 45 Cal.4th 1217, 1235 [it “may be especially difficult” for a parent who has failed to continue with substance abuse treatment during the reunification period to regain custody after services have been terminated, because at that point the focus is on the child’s permanent placement and well-being].)
B. Substantial Evidence Supports the Court’s Finding That the Parental Benefit Exception Did Not Apply to Mother’s Relationship With the Girls
Mother claims insufficient evidence supports the juvenile court’s finding that the beneficial parental-child relationship exception did not apply to her relationship with the girls. Again, we disagree.
At a section 366.26 hearing, the juvenile court determines a permanent plan of care for a dependent child. (Casey D., supra, 70 Cal.App.4th at p. 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) “Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that 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 S.B. (2008) 164 Cal.App.4th 289, 297.)
The “beneficial parent-child relationship exception” applies when the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) To show that the exception applies: “The parent must do more than demonstrate ‘frequent and loving contact[, ]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life.” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)
The parent must also show that the parent-child 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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. 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 Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There must be a “compelling reason” to apply the exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.)
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 Autumn H., supra, 27 Cal.App.4th at p. 576; In re S.B., supra, 164 Cal.App.4th at p. 298.)
Mother claims the court erroneously refused to apply the beneficial parent-child relationship exception because she consistently visited the girls, and the girls had a significant, positive emotional attachment to her. Mother suggests (1) the termination of her parental rights would be detrimental to the girls, and/or (2) the continuation of her parent-child relationship with the girls would promote their well-being to such a degree as to outweigh the benefits the girls would realize in a permanent home with new, adoptive parents. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Substantial evidence supports the court’s determination that the exception did not apply, however. The girls were very young, only two and four years old at the time of the section 366.26 hearing, and were clearly adoptable. They urgently needed the security and sense of belonging they would realize from being adopted into a permanent home.
There was no indication that severing the girls’ relationship with Mother would be detrimental to the girls, or would deprive them of a “substantial, positive emotional attachment such that the [girls] would be greatly harmed.” (In re Angel B., supra, 97 Cal.App.4th at p. 466.) Nor was there any showing that the girls would benefit more from maintaining their relationship with Mother than they would benefit from being adopted. (Ibid.)
IV. DISPOSITION
The orders terminating parental rights and placing the children for adoption are affirmed.
We concur: Richli, Acting P.J., Miller, J.