Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J214962. Marsha Slough, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Mother, L.M.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Father, M.M.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Brent Riggs, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
Mother, L.M., appeals from a judgment terminating her parental rights. (Welf. & Inst. Code, § 366.26.) She argues (1) that the court erred in denying her petition to modify a prior order (§ 388), where she had successfully overcome her substance abuse problem, and (2) the court erred in finding the child, A.M., adoptable because there was a beneficial parent-child relationship. (§ 366.26, subd. (c)(1)(B)(i).) Mother has a long history of drug abuse and a transient lifestyle. Although she initially complied with the reunification plan for the first six months of the dependency, she subsequently relapsed into drug use, failed to maintain contact with the social worker, became transient, and did not complete the remaining components of her plan. As a result, services were terminated and a selection and implementation hearing was held, at which parental rights were terminated. (§ 366.26.) We affirm.
Father also appealed, but he joins mother’s briefs, making no separate arguments.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
BACKGROUND
On May 16, 2007, a social worker responded to mother’s address to investigate a report that mother was smoking methamphetamine and having sex in the living room in the presence of her one-year-old child, A.M. When interviewed, mother appeared to be under the influence of drugs and admitted she had taken methamphetamine. Mother’s drug use began when she was 14 years old and she failed to follow through with an agreement to nominate the maternal grandmother as guardian of A.M.
On May 21, 2007, a dependency petition was filed alleging (with respect to mother) that A.M. was at risk of harm resulting from the parents’ failure or inability to supervise, or to provide the child with adequate food, clothing, shelter due to her substance abuse. (§ 300, subd. (b).) Regarding father, the petition alleged he neglected the child by leaving him with mother when he knew or should have known the child was at risk (§ 300, subd. (b)), and that he left the child with no provision for support, insofar as his whereabouts were unknown. (§ 300, subd. (g).)
Following court ordered mediation and an amendment to the petition, mother submitted on the reports at the combined jurisdiction/disposition hearing. The court declared A.M. to be a dependent of the court, removed custody from the parents, and ordered mother to participate in a court ordered reunification plan.
By the time of the first six-month status review hearing in March 2008 (§ 366.21, subd. (e)), mother had completed a 90-day residential program that included anger management, domestic violence training, and parenting skills training. At the time of filing the petition, she was residing in a sober living home and informed the social worker she had been sober since October 3, 2007. However, she had tested positive for methamphetamine on March 10, 2008, and admitted she had relapsed.
Nevertheless, the social worker expressed the opinion that mother’s prognosis for reunification was fair. Thus, despite the fact that A.M. was under the age of three, an additional six months of reunification services were recommended, and mother was advised to enroll in a 12-step program. On April 9, 2008, the court found it would be detrimental to return A.M. to his mother, and ordered that reunification services continue.
By September 2008, mother’s situation deteriorated. In the 12-month review report (§ 366.21, subd. (f)), the social worker recommended that services be terminated and that a hearing be set to select and implement a permanent plan for A.M. (§ 366.26.) The report noted that mother was currently living in San Diego, but that she had also lived in Victorville, Bakersfield, and Riverside, during this six-month reporting period. Mother had not enrolled in a 12-step program as suggested in the previous report, did not have a stable residence, and had not contacted the social worker between March 2008 and August 2008 because she had relapsed and was still using drugs. Mother tested positive for marijuana use on September 9, 2008. Additionally, mother had been dropped from the Perinatal Treatment Program due to nonattendance, and stopped going to NA (Narcotics Anonymous) meetings. In the meantime, A.M. was doing well in the home of the nonrelative extended family member, whom he called “Momma.”
On October 1, 2008, father appeared in court for the first time and requested visitation. The court ordered paternity testing. On October 9, 2008, at the contested 12-month status review hearing, the court found mother had failed to participate regularly in the court-ordered treatment program and the extent of her progress was found to be minimal. The court also found that reasonable services were offered or provided, terminated those services, and set a hearing to select and implement a permanent plan. (§ 366.26.)
On February 19, 2009, mother filed a petition to modify the prior court order. (§ 388 [388 petition].) The petition alleged that mother was currently participating in Riverside’s Department of Mental Health Substance Abuse “MOMS” Program, which includes substance abuse and counseling sessions, had submitted six clean drug tests, and attended NA meetings on a regular basis. At the section 366.26 hearing, the court permitted mother to testify in support of her modification petition, but denied the 388 petition. Thereafter, the court found the minor was adoptable and terminated parental rights. Both parents appealed.
DISCUSSION
1. The Juvenile Court Did Not Abuse Its Discretion In Denying Mother’s 388 Petition.
A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).) Generally, the petitioner must show by a preponderance of the evidence that the child’s welfare requires the modification sought. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)
In evaluating whether the petitioner has met his or her burden to show changed circumstances, the trial 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. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re S.J. (2008) 167 Cal.App.4th 953, 959.)
Here, mother points to the fact that the 388 petition showed she had regained her sobriety after her relapse, and had nearly completed a second six-month substance abuse program at the time of the 388 hearing. This is not a changed circumstance where the evidence showed that mother had an extensive history of drug use, had initiated several drug rehabilitation programs during the dependency, and experienced periods of sobriety, but they were followed by relapses. She had just started the 12-step program that she was advised to start at the six-month status review stage. Her recent efforts at rehabilitation were admirable, but her sobriety at the time of the hearing represented merely changing circumstances, not changed circumstances (see In re Casey D. (1999) 70 Cal.App.4th 38, 48-49), given the number of years she has abused drugs and the brief time she has been clean and sober.
We agree that drug rehabilitation is not an exact science. However, “[c]hildhood does not wait for the parent to become adequate.” (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1016.) Viewed in light of the Kimberly F. criteria, mother’s drug dependence is considered one of the most serious of the problems leading to dependency, and is one of the most difficult problems to resolve or ameliorate. The evidence presented at the section 388 hearing showed she had not actually resolved or ameliorated that problem to a significant degree at the time of the hearing. The court did not abuse its discretion in denying the 388 petition.
2. The Beneficial Parent-Child Relationship Exception to Termination of Parental Rights Is Inapplicable.
It is well settled that when reunification efforts have failed, adoption is the Legislature’s first choice because it gives the child the best chance at a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.) To overcome the preference for adoption and to avoid termination of parental rights, it is the parent who has the burden of showing both (1) regular visitation and contact, and (2) the benefit to the child in maintaining the parent-child relationship. (§ 366.26, subd. (c)(1)(B)(i); In re Angel B. (2002) 97 Cal.App.4th 454, 466.) This requires the parent to prove that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (Ibid.) The department is not required to prove the exception does not exist (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1333), nor is the court required to “invoke” it on its own.
To constitute a “beneficial parent-child relationship,” the relationship between the mother and the child must be one that promotes his well-being to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206-1207.) In deciding whether the exception applies, the juvenile court must balance the strength and quality of the natural parent-child relationship against the security and sense of belonging a new family would confer. (In re Autumn H. (1994)27 Cal.App.4th 567, 575.)
Because mother essentially asserts there is insufficient evidence to support the court’s finding that no exception to the adoptability finding exists, we apply the substantial evidence standard of review. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Review of the sufficiency of the evidence in dependency cases is governed by the same rules applicable to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We must draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Here, mother demonstrated only that she visited regularly, and that A.M. enjoyed the visits. However, she presented neither evidence to show the nature and quality of that relationship, nor the manner in which the child would benefit from maintaining the parent-child relationship. To the contrary, the evidence showed A.M. was very comfortable in the adoptive home, where he has lived virtually his entire life, and has a strong emotional attachment to his adoptive parent.
There is substantial evidence to support the trial court’s finding that termination of parental rights would not be detrimental to A.M.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., Hollenhorst, J.