Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIJ107815 Charles J. Koosed, Judge.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant O.G.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant L.C.
Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Neil R. Trop, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, J.
L.C. (Mother) and O.G. (Father), parents of A.G., appeal after the denial of their Welfare and Institutions Code section 388 petitions and termination of their parental rights at a section 366.26 hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
A.G.’s counsel agrees with the juvenile court’s placement.
Mother and Father raise the following issues on appeal,
1. Father and Mother both contend that their section 388 petitions should have been granted and that they should have been afforded reunification services.
2. There was insufficient evidence of current detriment to A.G. shown at the section 366.26 hearing to justify terminating their parental rights.
Father joined in Mother’s arguments that benefit him, and Mother joined in all of the Father’s arguments that were of benefit to her.
We find no error. Hence, we will affirm.
I
PROCEDURAL AND FACTUAL BACKGROUND
On September 20, 2007, Riverside County Department of Social Services (the Department) detained A.G., who was one month old. According to the section 300 petition filed by the Department on September 24, 2007, on behalf of A.G. against Mother and Father (who claimed to be the biological father), it was alleged pursuant to subdivisions (b)(1) and (b)(2) of section 300 that the parents were unable to supervise or protect the child adequately. It was also alleged under section 300, subdivision (j) that A.G.’s siblings all had suffered abuse or neglect and that A.G. was in danger of suffering similar harm.
The facts supporting the allegations in the petition were that Mother and Father had two children together: A.G. and H.G. Mother had a son J.C. and a daughter A.C. from other relationships. A.C. had been taken from Mother by the Department due to neglect and drug use, and she had been adopted. Mother’s parental rights to J.C. had been terminated (due to neglect and physical abuse that consisted of burning on his hands and bruising on his body when he was left with “inappropriate caretakers”), and he had been adopted by the maternal grandparents. H.G. had been taken into protective custody on May 27, 2006. He had tested positive for amphetamines at the time of his birth. Mother had been denied reunification services. Father had failed to complete reunification services. A section 366.26 hearing was scheduled for October 23, 2007, in regard to H.G.
Mother had a fourth child who was in legal guardianship, but little information was provided as to that child.
On September 20, 2007, the Department received an anonymous tip of general neglect of A.G. and that Father and Mother were smoking marijuana in her presence. The Department went to the parents’ home. When the Department worker arrived, both Mother and Father became very defensive. They refused to take paperwork that required them to submit to drug testing. When the worker asked Mother to bring A.G. out to her, Father refused to allow it. The worker contacted the Perris Police Department. Mother claimed that she was already drug testing, and Father stated that he had taken anger management classes. An anonymous relative contacted the Department after A.G. was detained and expressed concern that both parents were taking drugs and frequented a house where methamphetamine was manufactured. Neither parent had a job. Both had criminal histories involving drug use. Mother had prior convictions for shoplifting and Father for possession of firearms.
At the detention hearing held on September 25, 2007, the juvenile court found that a prima facie case for detention of A.G. outside the home had been made. The juvenile court could not return A.G. to Mother’s custody because she had an active warrant for possession of controlled substances. The juvenile court also ordered visitation as directed by the Department, but Mother and Father were warned that they would probably be denied reunification services. Father submitted documents that he was employed as a “part time casual laborer,” had completed parenting classes, and had participated in anger management classes.
In a jurisdictional report filed on November 8, 2007, the Department asked that the juvenile court find the allegations in the section 300 petition true. It was recommended that Father and Mother be denied reunification services pursuant to section 361.5, subdivision (b)(7), (10), (11), and (13) due to past failure of reunification with A.G.’s siblings. A.G. had been placed with the paternal great-cousins, who wanted to adopt her. Mother and Father had been attending Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings.
According to the report, Mother and Father had had their parental rights to H.G. terminated on October 23, 2007, due to their failure to complete a drug treatment plan. Father had failed to complete his case plan. The Department also suspected that there was domestic violence and drug use in the home.
Mother was interviewed and acknowledged that she had an extensive history with the Department in regard to A.G.’s three older siblings. Mother claimed that the Department had never given her a chance to get the children back. She criticized the Department, stating that they did not set up visitation between her and H.G. Mother denied there was any abuse or neglect.
Father was also interviewed and was not involved in the prior cases involving A.C. and J.C. because he was not their biological father. He claimed that H.G. had been taken because he was born drug positive.
The Department noted that Mother had been unable to reunify with any of her children. On October 25, 2007, a Department worker informed both Mother and Father that they needed to submit to a hair follicle test. Both told the worker that they would test positive and did not submit to the test. Mother admitted she used methamphetamine after A.G. was detained. As of the date of the report, they had not complied with the drug test. Mother and Father had been participating in weekly visitation with A.G., and the visits were appropriate.
Both Mother and Father tested positive for amphetamines on December 20, 2007. Mother tested negative for controlled substances on February 11, 2008. Father tested positive for amphetamines on January 8, 2008. Father and Mother had continued with appropriate visitation with A.G.
At the jurisdictional hearing held on February 25, 2008, Mother and Father submitted on the allegations in the petition and waived their rights to a contested hearing. The allegations pursuant to section 300, subdivisions (b) and (j) were found true as to both parents. Reunification services were denied to them. A selection and implementation hearing was set.
The Department filed a section 366.26 report on June 12, 2008. It requested that the parental rights of Mother and Father be terminated and recommended a permanent plan of adoption of A.G. by the current caretakers, her paternal great-cousins. Father and Mother were continuing with visits with A.G., which were going well, although A.G. would cry at the beginning of the visit. At the end of the visit, A.G. was happy to see the adoptive parents. The adoptive parents were committed to maintaining a relationship with A.G.’s siblings and possibly with Mother and Father if they could remain sober. The adoptive parents were able to provide a safe and stable environment for A.G. A.G. was bonded to the adoptive parents and their other children.
Father advised the Department that he and Mother had used methamphetamine on or about April 3, 2008, just prior to entering a treatment center. Both Father and Mother completed a primary treatment program, but the Department was concerned it was too short of a time to determine whether they could maintain a drug-free lifestyle.
In an addendum report filed on July 16, 2008, the Department provided further information that both Father and Mother had been at an inpatient treatment center from April 3, 2008 through May 29, 2008, but were released early due to overcrowding. Mother had tested negative for drugs on April 15, 2008. Mother and Father were currently enrolled in both parenting and anger management classes. Although the Department commended their efforts, it felt it was too early to determine if they could maintain sobriety.
Prior to entering treatment, Father had failed to random drug test on five occasions. Mother had missed two tests. Both Father and Mother had active bench warrants. Although Father and Mother were appropriate during visitation with A.G., they called her “fat girl,” and A.G. cried for most of the visit. Father and Mother were both unemployed and resided with Father’s mother.
On July 16, 2008, both Father and Mother filed section 388 petitions, as will be set forth in detail, post. The section 388 petitions were heard at the time of the section 366.26 petition. Both petitions were denied.
Father and Mother were both present with counsel at the section 366.26 hearing held on September 10, 2008. The juvenile court took into account all of the reports and proceedings in this matter. It found that A.G. was adoptable and that the parental rights of Mother and Father should be terminated. A.G. was freed for adoption.
Mother and Father appealed.
II
DENIAL OF SECTION 388 PETITIONS
Mother and Father both contend that the juvenile court erred by denying their section 388 petitions.
A. Additional Factual Background
In a written section 388 petition, Mother claimed as changed circumstances that she had completed an inpatient substance abuse program, attended AA/NA meetings regularly, and was scheduled to begin a parenting class on July 3, 2008. She requested six months of reunification services. She claimed she had maintained regular visitation with A.G., and it would be beneficial to maintain that bond. She attached a certificate of completion at a primary treatment program named the Gibson House for Women; a negative drug test on April 18, 2008; and AA/NA attendance sheets for April and May 2008.
In Father’s written section 388 petition, he claimed as changed circumstances that he completed an anger management course, a parenting course, and a substance abuse program; engaged in counseling; and was attending AA/NA classes. He also claimed he had a home suitable for placement of A.G. He requested that he be granted family maintenance or family reunification services. He claimed he had made “significant strides” in trying to change his life, he was committed to A.G., and he continued to self-enroll in services. He attached a certificate showing he had completed anger management classes; a certificate of completion of a primary treatment program at the Gibson House for Men; and proof of attendance at AA/NA meetings in April and May 2008.
On September 10, 2008, the trial court held a combined section 366.26 and change order hearing. At the hearing, the Department submitted on their reports. The Department noted that Mother and Father had done well attempting to work on their sobriety. However, it was not in the best interests of A.G. because she was only one year old and had been in placement for almost that whole year. Mother presented evidence that she had a clean drug test on July 30, 2008, and had completed anger management classes. She argued that she had maintained contact with A.G. and had a significant bond with her.
Father had a clean drug test on July 30, 2008, and one more class to complete an anger management course. He was working as a “sign twirler” to make money. Father had been clean and sober since April 2008.
The Department argued that up until February 2008, Father and Mother had been testing positive for drugs. They had a long history of not being stable and not maintaining sobriety. Based on visitation, A.G. was not bonded to her parents. At the visits, the parents did not provide comfort to A.G. A.G. was very bonded with the caretakers, who had had custody of her since she was two months old.
Mother argued it was difficult to bond with A.G. because they were only having monthly visits. She admitted that recently the visits had been twice a month.
The juvenile court noted that the original petition had been filed in September 2007 and that Mother and Father could have been engaged in services starting at that time. They did not do anything the first five months of A.G.’s life. It found, “However, they’ve done really well. This is a hard decision. They’ve actually done what a lot of parents who I give services to can’t even do. So you know, is there a change in circumstances based on the parents’ progress and how well they’ve done? Sure there is.” The juvenile court was not convinced, however, that it was in A.G.’s best interest to grant reunification services and was concerned that A.G. was not bonded to her parents. It inquired of the parties if they felt that a bonding study would be helpful. Mother’s counsel did not think it would be helpful because there had not been enough contact between Mother and A.G. Mother’s counsel asked that the section 366.26 hearing be postponed and that the court allow visitation on weekends.
The Department stated that Mother and Father had exacerbated the situation by arriving late to visitation and then leaving early. The juvenile court indicated that the only way to establish a bond would be to grant the section 388 petitions and grant family reunification. It felt it was too “late in the game.” It reiterated the fact that Mother and Father did not start any programs the first five months and that A.G. had been with the caretakers for almost her entire life. It noted that for a child under three, only six months was allowed for reunification. It was very concerned about delaying the permanence for A.G.
The juvenile court ruled, “It’s just too late in the game. I can’t in good conscience find it would be in the best interests of the child, so mom and dad’s motions will both be denied. Let me make it clear just in case they do file appeals that I think they have shown a change in circumstances, but I do not believe it was in the best interest of the child to grant their request due to the fact that it’s too late in the game, too late in the process, certainly not a game, but too late in the process to grant their request. [¶] And there is a lack of any bond. And I think everyone, even mom and dad might not agree. I don’t know. But I think everyone is of the mindset that there’s not the necessary bond needed or established to make the best interests decision for the child.”
B. Analysis
The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstances or new evidence and that modification would promote the child’s best interests. (§ 388; see In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)
In considering whether a child’s best interests would be served by modifying a previous order, the juvenile court must evaluate several factors, including the seriousness of the problem that led to the dependency and the continuation of the problem. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1261, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414; In re Kimberly F. (1997)56 Cal.App.4th 519, 532.) Substance abuse is generally considered a more serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (Kimberly F., at p. 531, fn. 9.) The juvenile court should also consider the bond between the parents and the child against the bond that the child has forged with the prospective adoptive parents. (Eileen A.,at p. 1261.) The burden of proving the changed circumstances and that the modification would promote the child’s best interest lies with the party who seeks the modification. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
We review the juvenile court’s order for an abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Michael B., supra, 8 Cal.App.4th at p. 1704.) Hence, we “‘will not disturb [a] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’” (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) “It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion....” (In re Kimberly F., supra, 56 Cal.App.4th at p. 522.)
Although the juvenile court stated that circumstances had changed, it also stated that it was too late in the process. It commended the parents for their current sobriety but stated they had waited too long. Here, Mother had an extensive history with the Department involving her older children dating back to 2004, all related to her drug use. She had prior failures after periods of sobriety. On October 25, 2007, in this case, Mother refused a drug test because she said she would test positive. Mother tested positive for amphetamines on December 20, 2007. Father claimed that Mother had used as late as April 2008. Mother had only been out of drug treatment for three months. The extent of Mother’s substance abuse certainly was serious and continuing problem. (See In re Eileen, supra, 84 Cal.App.4th at p. 1261.) We believe that juvenile court certainly could have denied Mother’s section 388 petition on this basis.
Father argues in his reply brief that the juvenile court did not deny the section 388 petition on the ground that his and Mother’s sobriety was too short. He faults the Department for making such argument. However, the juvenile court stated that although there were changed circumstances, it was too late to make an impact on returning A.G. to their care. Further, such consideration by the juvenile court was proper, as substance abuse constitutes a long-term problem that is not easily remedied.
This was equally applicable to Father. Although he was not involved with the termination of Mother’s rights to J.C. and A.C., he was involved with H.G. In 2006, he declined services that were offered to him, including drug treatment. He continued to take drugs up until at least April 2008, after A.G. had been taken from his custody. He also had only been out of treatment for three months at the time of the section 388 hearing. Again, the substance abuse was a continuing and serious problem that was unlikely to have resolved itself by the time of the sections 366.26/388 hearing. To use the words of the juvenile court, it was “too late in the game” to address their substance abuse problem in a meaningful way that was in the best interests of A.G.
We believe the reason given by the trial court for denying the petitions the lack of bond between Mother and Father and A.G. was also sufficient to deny both section 388 petitions. Although Mother and Father attended visitation with A.G., the Department noted that they had a hard time comforting A.G. (the paternal grandmother had to soothe A.G.) and they had been late on occasion. This exacerbated the lack of bond between them and A.G. Further, A.G. had been with the adoptive parents since she was two months old and had a significant bond with them.
Based on the foregoing, we conclude the trial court did not abuse its discretion by denying both Mother’s and Father’s section 388 petitions. While their efforts to rid their lives of drugs was commendable, their circumstances were not sufficiently changed to warrant prolonging uncertainty for A.G. while they attempted to remain sober. Had Mother and Father begun their treatment immediately and maintained their sobriety since the day A.G. was taken from them, it well may have been in A.G.’s best interest to attempt reunification with them. That is not what occurred here. Mother and Father were still taking drugs six months after A.G. was taken from them. The juvenile court could properly determine that pursuing reunification at this stage of the case was not in the child’s best interest. Here, granting reunification services would have resulted in a further period of uncertainty for A.G, undermining her “need for prompt resolution of [her] custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “[T]here must be a limit on the length of time a child has to wait for a parent to become adequate. [Citations.]” (Id. at p. 308.) Accordingly, we conclude that it was not an abuse of discretion for the juvenile court to deny the section 388 petitions.
III
CURRENT DETRIMENT TO JUSTIFY TERMINATION OF PARENTAL RIGHTS UNDER SECTION 366.26
Father, joined by Mother, contends that the trial court erred by terminating their parental rights because there was no showing of current detriment to returning A.G. to their care at time of the section 366.26 hearing.
At the section 366.26 hearing, Mother and Father requested that legal guardianship be considered instead of adoption. This would allow permanence but also a chance for bonding. This would also reward the parents for their hard work. The Department argued for adoption and that none of the exceptions to adoption applied. The juvenile court was concerned that Mother and Father had waited six months to start improving themselves. At six months, Mother and Father should been ready to take A.G. back into their home. The juvenile court found no reason to deviate from the permanence plan of adoption, and parental rights were terminated.
Father contends for the first time on appeal that there was no showing of current detriment at the time of the section 366.26 hearing that barred returning A.G. to their care. Mother joins in this contention. The Department contends that since Father did not raise this issue below, he has waived the claim on appeal. Since we find that the trial court did not err, we need not address waiver.
At review hearings in a juvenile dependency proceeding when a child has been removed from a parent, the court must return the child to the parent unless it finds that doing so “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) If the child cannot be returned to the parent within the time required, the court may terminate reunification services and set a hearing to be held pursuant to section 366.26. (§ 366.21, subds.(e), (g)(2), (h).) Thus, “[b]y the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) At the section 366.26 hearing, the sole issue “‘is whether there is clear and convincing evidence that the child is adoptable.’ [Citations.]” (In re Josue G. (2003) 106 Cal.App.4th 725, 733; see also § 366.26, subd. (c).)
“A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered... shall constitute a sufficient basis for termination of parental rights.” (§ 366.26, subd. (c)(1).) The erroneous denial of reunification services must be asserted by filing a timely petition for an extraordinary writ prior to the section 366.26 hearing. (§ 366.26, subd. (l); In re Harmony B. (2005) 125 Cal.App.4th 831, 838; In re Cathina W. (1998) 68 Cal.App.4th 716, 719.)
As our state Supreme Court has explained, “[i]t is not the purpose of the section 366.26 hearing to show parental inadequacy, which had to have been previously established, and there is no burden on the petitioning agency to show at the section 366.26 hearing that the parents are ‘at fault.’” (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 254.) “By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness....” (Id. at p. 256.) Nor does the failure to require such a finding at the section 366.26 hearing violate a parent’s right to due process. (In re Brittany M. (1993) 19 Cal.App.4th 1396, 1403; In re Amanda D. (1997) 55 Cal.App.4th 813, 819.)
Here, both Mother and Father had been denied reunification services because they had failed to reunify with their son, H.G. By the time of the section 366.26 hearing, the court was not required to make a finding of current detriment as the denial of reunification services supported the termination of parental rights under section 366.26, subdivision (c)(1). As such, we reject their argument that the juvenile court erred in failing to make a finding of detriment at the time of the section 366.26 hearing.
Father relies upon In re P.C. (2008) 165 Cal.App.4th 98. In that case prior to the termination of reunification services, the mother had completed all services required by her case plan. The only thing preventing her from having her children returned to her care was inadequate housing. (Id. at pp. 101-102.) Such inadequacy was due in part to the social services agency’s failure to assist her in finding suitable housing. (Id. at p. 106.) Despite this, the juvenile court terminated reunification services and set a section 366.26 hearing. (Id. at p. 102.) The mother’s parental rights were terminated at the section 366.26 hearing. (Id. at p. 103.) On appeal, the court held that, under the circumstances presented in that case, the mother’s failure to find housing acceptable to the social services agency was a legally insufficient basis to support a detriment finding. (Id. at pp. 106-107.) The court rejected the social services agency’s argument that no further detriment finding was necessary to terminate parental rights at the section 366.26 hearing, on the basis that the prior detriment finding was legally improper. (Id. at p. 106.)
Initially, we do not read P.C. as requiring that the juvenile court must make a finding at the section 366.26 hearing that returning the children to the parent would be detrimental. The court in P.C. stated that it was deciding the issue of whether when the only detriment is lack of adequate housing whether parental rights can be terminated. (In re P.C., supra, 165 Cal.App.4th at 103.) P.C. is more appropriately read to create an exception to the otherwise settled rule that no such findings are required at the section 366.26 hearing when the prior detriment findings were legally insufficient. As noted, ante, once the juvenile court denied reunification services in this case (and Mother and Father did not contest the denial) no further findings of detriment were necessary at the section 366.26 hearing. Further, neither Father nor Mother argues that any exceptions to the termination of their rights exists. (See § 366.26, subds. (c)(1)(B)(i) through (vi).)
Moreover, the evidence supporting the denial of reunification services and a finding of detriment to A.G. was overwhelming. Both Father and Mother had failed to reunify with their other children. Further, they both waited five months before beginning to address their drug use. Further, Father indicated that up to as late as April 2008, they were still using drugs. The short time of their sobriety certainly showed that A.G. was subject to an unsafe environment in their care. Accordingly, even if the juvenile court was required to make a further detriment finding at the section 366.26 hearing, it would have been supported by substantial evidence.
IV
DISPOSITION
The order appealed from is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.