Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Los Angeles County Superior Court No. CK67665, Anthony Trendacosta, Commissioner.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
BIGELOW, J.
In 2008, the Legislature enacted Assembly Bill No. 2070 (AB 2070) to amend various sections of the Welfare and Institutions Code relating to dependency proceedings, and to add new Welfare and Institutions Code section 366.25 relating to the same subject. As relevant to the appeal before us today, the provisions of AB 2070 now authorize the dependency court to extend reunification services beyond the previously final 18-month permanency review hearing date, to a newly final 24-month permanency review hearing date, under specified circumstances. AB 2070 became effective on January 1, 2009.
All further references are to the Welfare and Institutions Code.
In the current case, the dependency court entered orders at a normative 12-month permanency review hearing in June 2008. Those orders terminated family reunification services for T.O., the mother of two dependent children, and set the case for a permanent plan hearing pursuant to section 366.26. At the time of the permanent plan hearing in February 2009, mother filed a section 388 petition in which she requested an extension of family reunification services in accord with AB 2070. The dependency court denied the section 388 petition, and terminated mother’s parental rights. Mother appeals. We affirm the dependency court’s orders.
FACTS
T.O. is the mother of An.O., born in October 2001. The exact identity of An.O.’s father is unknown; the dependency court has ruled that mother’s former husband, R.T., is An.O.’s alleged father only. When initially contacted about the current dependency case, alleged father R.T. declined to be interviewed because, in his words, he had “no contact” with mother “for a long time.” Mother and a different father, D.G., are the parents of Al.O., born in June 2005. At the outset of the current dependency case, D.G.’s whereabouts were “unknown;” the dependency court has ruled that D.G. is Al.O.’s alleged father only. Neither alleged father is a party to the appeal before us today.
In April 2007, the Department of Children and Family Services (DCFS) filed a section 300 petition on behalf of An.O. and Al.O. (the children) after an anonymous caller notified a child protection hotline that mother was using and selling “crystal” from the family home, and police went to the premises and found a loaded firearm in Al.O.’s playpen, a drug scale, a pipe for smoking drugs, a police scanner, and numerous empty beer cans, and gang members, lying around inside the residence. On April 9, 2007, the dependency court detained the children, and ordered DCFS to place the children in a foster home. At a pretrial resolution conference on May 1, 2007, mother waived her trial rights, and pled no contest to an amended allegation that she had a history of drug abuse which rendered her incapable of caring for the children. On June 7, 2007, the dependency court entered disposition orders directing mother to participate in a prescribed case plan of family reunification services which included a drug program with random drug testing, and parenting education.
At a six-month status review hearing (§ 366.21, subd. (e)) on November 6, 2007, the dependency court continued mother’s case, and set a 12-month permanency review hearing. At the 12-month permanency review hearing (§ 366.21, subd. (f)) on June 18, 2008, the court terminated mother’s family reunification services, and set the cause for a permanent plan hearing. The permanent plan hearing was later continued into the coming year.
At the time of the permanent plan hearing (§ 366.26) on February 11, 2009, mother filed a section 388 petition alleging that “changed circumstances” justified a change in the dependency court’s prior orders. In particular, mother requested additional reunification services. In support of her petition, mother filed documentation showing that she had completed a parenting education program, and had self-enrolled in a drug abuse program. During argument, mother’s counsel argued that the provisions of recently enacted AB 2070 supported an extension of reunifications services. After hearing argument, the dependency court denied mother’s section 388 petition, and terminated her parental rights over both children. On February 13, 2009, the court entered formal orders in accord with its rulings.
Mother filed a timely notice of appeal.
DISCUSSION
I. AB 2070 Does Not Apply to Mother’s Current Case
Mother contends the dependency court’s orders must be reversed because the court failed to apply the procedures established by AB 2070 when considering whether to resume and extend her family reunification services. According to mother, the “new law” enacted by AB 2070 supported modification of the court’s prior orders in order to provide more reunification services. We disagree.
A. The Statutes
Before AB 2070’s effective date (January 1, 2009), the dependency statutes set up a system providing for a six-month status review hearing (§ 366.21, subd. (e)), and for the continuation of the case –– where the dependency court found a substantial probability that a child could be returned to his parent with additional services –– for a 12-month “permanency [review] hearing” (§ 366.21, subd. (f)). At the same time, former section 366.22, subdivision (a), provided an outlet to allow a case to be continued beyond the 12-month permanency review hearing, with a cut-off date at 18 months: “When a case has been continued [beyond a 12-month permanency review hearing], the permanency review hearing shall occur within 18 months after the date the child was originally removed from the physical custody of his or her parent.”
AB 2070 kept the language of former section 366.22, subdivision (a), largely intact, i.e., the 18-month cut-off date for a permanency review hearing. AB 2070 then added a new subdivision (b) which set out circumstances allowing for a further continuation of a case beyond the 18-month permanency review hearing, pushing the cut-off out to a 24-month permanency review hearing under specified circumstances. Since January 2009, section 366.22, subdivision (b), has provided:
“If the child is not returned to a parent or legal guardian at the [18-month] permanency review hearing and the court determines by clear and convincing evidence that the best interests of the child would be met by the provision of additional reunification services to [1] a parent or legal guardian who is making significant and consistent progress in a substance abuse treatment program, or [2] a parent recently discharged from incarceration or institutionalization and making significant and consistent progress in establishing a safe home for the child’s return, the court may continue the case for up to six months for a subsequent permanency review hearing, provided that the hearing shall occur within 24 months of the date the child was originally taken from the physical custody of his or her parent or legal guardian. The court shall continue the case only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian. For the purposes of this section, in order to find a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time, the court shall be required to find all of the following:
“(1) That the parent or legal guardian has consistently and regularly contacted and visited with the child.
“(2) That the parent or legal guardian has made significant and consistent progress in the prior 18 months in resolving problems that led to the child’s removal from the home.
“(3) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her substance abuse treatment plan as evidenced by reports from a substance abuse provider as applicable, or complete a treatment plan postdischarge from incarceration or institutionalization, and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.
“For purposes of this subdivision, the court’s decision to continue the case based on a finding or substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian is a compelling reason for determining that a hearing held pursuant to Section 366.26 is not in the best interests of the child.
“The court shall inform the parent or legal guardian that if the child cannot be returned home by the subsequent permanency review hearing, a proceeding pursuant to Section 366.26 may be instituted. The court may not order that a hearing pursuant to Section 366.26 be held unless there is clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.”
New section 366.25 prescribes the procedures for the newly established 24-month permanency review hearing.
B. Analysis
Mother contends “[t]he 24 month period of [AB 2070] within which to hold the final, extended review period, could have been lawfully accomplished in [her] case.” In other words, mother interprets AB 2070 to provide that, in any and all cases in which a parent is making progress in a drug abuse program, reunification services may be extended up to the time of a 24-month permanency review hearing, without regard to when the parent makes his or her request to extend services up to the 24-month date. We do not interpret the dependency statutes so broadly.
As we understand the dependency statutes, a parent of a dependent child is entitled to a six-month review hearing pursuant to section 366.21, subdivision (e). At that hearing, the dependency court decides whether reunification services should be extended for an additional six-month period, followed by a 12-month permanency review hearing pursuant to section 366.21, subdivision (f). Then, at that hearing, the dependency court decides whether to give a parent a “final chance” (our words) for additional services, followed by an 18-month permanency hearing pursuant to section 366.22, subdivision (a). Prior to the enactment of AB 2070, that was the end. Now, after the enactment of AB 2070, the dependency court decides at the 18-month permanency hearing whether to give a parent a “final, final chance” (again, our words) for additional services, followed by a 24-month permanency hearing pursuant to section 366.22, subdivision (b), and section 366.25.
In mother’s current case, the 18-month “final chance” and the 24-month “final, final chance” steps are not applicable because the dependency court terminated services at the 12-month permanency review hearing. It is true that mother continued to work on her parenting skills and drug abuse problem, but this was after reunification services were terminated, during the time the permanency hearing was continued. At the hearing on her section 388 petition, mother suggested to the dependency court that it could apply AB 2070 “by analogy” in deciding whether to offer more reunification services. In other words, mother suggested that, in considering the merits of her section 388 petition for more services, the dependency court should have considered as a relevant factor that the dependency statutes now authorize a 24-month period of reunification services. We disagree with mother’s proposition that the dependency court should have –– by analogy –– applied the procedures established by AB 2070. The statutory scheme under AB 2070 prescribes the limited circumstances in which the dependency court may extend family reunifications past an 18-month review hearing, out to a 24-month review hearing, and does not, in our interpretation, stand alone to provide an independent basis to request and obtain services outside the review hearing context.
II. The Dependency Court Did Not Abuse Its Discretion When It Denied Mother’s Section 388 Petition
Apart from AB 2070, mother contends the dependency court should have granted her section 388 petition because she showed the requisite “changed circumstances,” and the requisite “best interests of the child,” to justify changing the court’s previous orders. We disagree.
A ruling by the dependency court granting or denying a parent’s section 388 petition is reviewed under the abuse of discretion standard. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Under this standard, a reviewing court may not reverse the dependency court’s ruling unless it is found to be “arbitrary, capricious, or patently absurd.” (Id. at p. 318.) After reviewing the dependency court’s ruling in mother’s current case, we do not find such an abuse of discretion.
Mother’s section 388 petition –– which she filed on the day set for the section 366.26 permanent plan hearing –– showed that she had made progress in her drug program, but did not show that she had completed a drug program and had been maintaining a drug-free lifestyle since the end of the program. In short, we concur with the dependency court’s assessment that mother’s circumstances may have been “changing,” but had not “changed.” We agree with mother’s argument that our state courts have recognized a strong public interest in family preservation for parents who have, in her words, “successfully addressed” their drug problems, but this argument does not persuade us to overturn the dependency court’s decision on her section 388 petition. Mother’s argument is unpersuasive because, while the record may show she may be “addressing” her drug problem, it does not show as a matter of law that she has actually “addressed” her problem successfully. (See In re Casey D. (1999) 70 Cal.App.4th 38, 48 [changing circumstances do not necessarily equate with changed circumstances].)
The absence of “changed” circumstances in mother’s case overlays the second, and, perhaps, more important, element of the case, namely, did mother demonstrate that it was in the children’s “best interests” to order more family reunification services? As our Supreme Court has observed, a primary consideration in assessing a child’s best interests is the need to assure stability and continuity, and that need assumes a greater role when custody continues over a significant period. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) In mother’s case, her children were removed from the family home in April 2007, and she filed her section 388 petition in February 2009. During the interim, by her own admission, her “performance faltered.” Although we agree with mother that the record shows a bond between her and her children, this one factor is not sufficient in our view to find that the dependency court abused its discretion in finding that her children’s best interests did not lie in a resumption of reunification services. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 [among the nonexhaustive factors to be considered in the context of a section 388 petition are (1) the serious of the problems that precipitated the dependency proceeding; (2) the bond between the parent and child; and (3) the degree to which the parent’s problems have been addressed].)
III. The Dependency Court Properly Terminated Parental Rights
Mother contends her parental rights should not have been terminated because she established the “parent-child relationship exception” to termination, thus requiring an order for legal guardianship rather than adoption. We disagree.
A. The Statutes
The dependency court’s task at a section 366.26 hearing is to select a permanent plan for a child who cannot be returned home because reunification efforts have failed. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Although the dependency statutes establish a presumption that adoption is in the child’s best interest (§ 366.26. subd. (b); see, e.g., In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344), the dependency court may not terminate parental rights unless it first finds that the child is “likely to be adopted” (§ 366.26, subd. (c)). The agency supervising the child (here, DCFS) has the burden to show, by clear and convincing evidence, that a child is adoptable. (Id., subd. (c)(1); In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153.) Upon a showing that it is likely the child will be adopted, the burden shifts to the parent to prove that termination of parental rights would be detrimental to the child under one of the statutory exceptions contained in section 366.26, subdivision (c)(1). (See generally In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
In mother’s current case, the dependency court found her children were generally adoptable (i.e., not by a specifically identified family), and that she had not established an exception to the termination of parental rights. Both of the dependency court’s decisions are supported by the record.
B. The Standard of Review
A dependency court’s findings in connection with a section 366.26 hearing are reviewed under the substantial evidence test. (Compare In re Autumn H. (1994) 27 Cal.App.4th 567, 575 with In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [decision reviewed for abuse of discretion].) If, based on our review of the entire record, we see substantial evidence to support the lower court’s findings, then we must sustain those findings –– even though substantial evidence would also support different findings. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
In reviewing the sufficiency of the evidence, a reviewing court must view the evidence in the light most favorable to the dependency court’s orders and findings, drawing every reasonable inference and resolving all conflicts in favor of those orders and findings. (In re Casey D., supra, 70 Cal.App.4th at p. 53.) The reviewing court may not reweigh the evidence. (In re Autumn H., supra,27 Cal.App.4th at p. 576.) The parent challenging the order has the burden of establishing that there is not sufficiently substantial evidence to support the dependency court’s findings. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
C. Analysis
1. The Predicate “Likely to be Adopted” Finding
Mother’s arguments regarding the dependency court’s “likely to be adopted” finding largely rely on her perception that the dependency court found the children generally adoptable because it “had not heard anything to the contrary.” Although we acknowledge the dependency court may have used inartful language, the record, when reviewed as a whole, more than amply persuades us that the dependency court based its “likely to be adopted” finding on the evidence in the record, not on the absence of evidence in the record. And, for the reasons we explain next, the evidence in the record supports the dependency court’s “likely to be adopted” finding.
DCFS prepared initial adoption assessments in November 2007 for the children, well before the October 2008 date originally set for the section 366.26 hearing. These initial assessments included statements from the children’s then-appointed foster mother, C.M., to the effect that she had “grown very at[t]ached to [Al.O.].” and that she was “committed to long term” care in the form of adoption. C.M. also stated that she was “willing” to adopt An.O., although he had caused problems and she had asked DCFS to remove him from her home after an incident in which he pushed his babysitter. The initial assessments also included statements from relative caretakers who had expressed interest in adopting both children.
In October 2008, DCFS reported that the children were then placed with the relative caretakers, and that there was a high likelihood of adoption.
In February 2009, DCFS reported that an adoption home study of the relative caretakers had been completed in November 2008, and that they remained committed to adoption, despite An.O.’s behavioral problems. Another report at about the same time also showed that the relative caretakers remained committed to the permanent plan of adoption.
The evidence summarized above is sufficient to support the dependency court’s finding that the children are “likely to be adopted.” The prospective adoptive adults in two separate homes had expressed interest in adoption, and mother’s arguments do not persuade us that more is needed.
2. The Parent-child Exception to Termination of Parental Rights
The dependency court’s decision not to apply the parent-child exception to the presumption in favor of adoption is similarly supported by substantial evidence.
Section 366.26, subdivision (c)(1)(B), provides that a dependency court shall terminate parental rights unless it finds that termination would be “detrimental” to the child because (1) the parent has maintained regular visitation with the child, and (2) the child would “benefit” from continuing the relationship with the parent. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
The record shows that mother regularly visited her children with monitors between the detention hearing in April 2007 and the six-month review in November 2007. During the next case time period, however, mother’s visits became “inconsistent” after she married a new male companion, and, beginning in about January 2008, mother only visited her children when family members transported them to visits. In June 2008, DCFS reported that mother had attended Al.O.’s birthday party, but otherwise did “not have on going regular visits with [her] children.” In October 2008, mother admitted that she had not seen her children since June 2008. We are satisfied that substantial evidence supports the dependency court’s conclusion that mother’s visits did not show “somebody acting in a parental role.”
We are also satisfied that substantial evidence supports the dependency court’s conclusion that mother’s relationship with her children, while more than minimal, was not more beneficial than the stability which they could obtain with adoptive parents. Our discussions of the facts above support the dependency court’s conclusion that mother had not shown that she had cultivated the type of relationship which would outweigh the goal of adoption.
We acknowledge that mother’s performance and behavior in the current case is not among the weakest we have seen, and that evidence in the record shows her children have expressed their desire to maintain a connection with their mother. The question for us, however, is whether the dependency court’s determination that adoption was preferable to long term guardianship is supported by substantial evidence, and is not irrational or unreasonable.
DISPOSITION
The juvenile dependency court’s orders dated February 13, 2009, are affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.