Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J05-00823
Haerle, Acting P.J.
I. INTRODUCTION
Appellants Maria F. (Mother) and Javier B. (Father) appeal from the findings and orders of the juvenile court following a hearing on Mother’s Welfare and Institutions Code section 388 petition and a hearing pursuant to section 366.26. The juvenile court denied the petition, terminated parental rights, and found the minor child, Arlene B., adoptable. Mother contends that reversal is required because her petition established changed circumstances indicating that the continuation of reunification services would be in Arlene’s best interests. Father sets forth no contentions of his own, but joins in Mother’s arguments. We will affirm.
All further unspecified statutory references are to the Welfare and Institutions Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
In May 2005, the Contra Costa County Bureau of Children and Family Services (the Bureau) filed a petition pursuant to section 300 on behalf of Arlene, who was four days old. The petition alleged that Mother had a “serious and chronic substance abuse problem . . . that . . . interferes with her ability to adequately parent the child.” Arlene was detained the next day and placed in foster care.
A jurisdictional and dispositional hearing was set for June 16, 2005. In its report prepared for the hearing, the Bureau stated that Mother and Father claimed to have been married for eight years, but could not produce a marriage certificate. The couple had lived together for about seven years and had five children together. The Bureau reported that Mother left Father and their four younger children in 2004 and 2005. The juvenile court awarded Father sole custody of these four children in April 2005.
Mother and Father’s oldest son and another child Mother had from a previous relationship are in guardianship with the maternal grandmother, Hilaria A., in San Bernardino County.
Mother returned, looking for Father, shortly before giving birth to Arlene in May 2005. At the time the jurisdictional report was written, it was unknown whether Father was Arlene’s biological father.
The report stated that Lisa Slater was the assigned emergency response worker for the family. If asked to testify at the hearing, Slater would state that she met and interviewed Mother the day after Arlene was born. Mother admitted to Slater that she used methamphetamine on more than one occasion during her pregnancy with Arlene. Mother also told her that “during this pregnancy, she would dip Kleenex tissue in Lysol and suck on it. She would also eat ‘Zest’ soap. She stated she did not know why she did this. She reported her doctor just said to ‘cool it’ and her mother would take it away from her.” Mother said she sucked on the Lysol-soaked tissues to “ ‘keep the drugs away, like smoking.’ ” Mother also stated that during an earlier pregnancy with one of Arlene’s siblings, she would sniff gasoline.
The report outlined the family’s prior child welfare history dating back to 1999. There were five referrals from San Bernardino County and one from Contra Costa County. Four of the referrals alleged drug use by Mother, including during two of her pregnancies; two referrals involved allegations of general neglect by Mother. Mother had failed an earlier Family Maintenance case plan for four of her children when she left them in Father’s care in 2004 and 2005. There were no allegations regarding Father.
The Bureau recommended that the court order a family reunification plan for Mother and Arlene. It recommended no services for Father, who at that time was considered an alleged father. If Father’s status was raised to presumed father and he requested placement of Arlene, the Bureau would have to assess his ability to raise another infant. Father had discussed with the social worker his feelings of being overwhelmed as a single father of four children aged one through seven.
Mother’s sister had requested that the maternal grandmother be considered for relative placement of Arlene. The social worker mailed the application to the maternal grandmother.
Mother did not contest jurisdiction and the petition was sustained. At the disposition hearing that followed, Mother was ordered to complete individual counseling, parenting education, random drug testing, and an inpatient substance abuse treatment program. The court ordered no services for Father. The court also adopted the findings and recommendations made by the Bureau, including the finding that each parent had been informed that “because the child was under three years of age at the time of the initial removal, a parent’s failure to participate regularly in any Court-ordered treatment programs or to cooperate or avail himself or herself of services provided as part of the child welfare services plan may result in a termination of efforts to reunify the family after six months.” Subsequently, the court ordered services for Father, contingent upon determination of his paternity of Arlene.
In its status review report dated December 19, 2005, written for the six-month review, the Bureau recommended terminating reunification services for Mother, providing no services for Father, and setting a section 366.26 hearing. Arlene was observed to be a happy baby girl, in good health, developmentally on target, and to show no signs of mental or emotional problems. The parents had supervised visits with Arlene on June 14, June 23, and July 8, 2005. Paternity was confirmed by DNA testing in August, but Father did not respond to a letter from the Bureau about establishing a reunification plan. Three more visits were scheduled in September and October, but despite calling to confirm two of them, Father failed to attend any of them. Mother did not respond at all regarding these visits; she had not been in contact with the Bureau since a telephone contact with the social worker on August 25, 2005. As a result, visitation between the parents and Arlene was discontinued.
Thereafter, both parents appeared together at the Antioch Children & Family Services office on October 31 without an appointment. They returned for a meeting on November 8 to request visitation with Arlene. Mother told the social worker that she was homeless and temporarily residing in the back of a unit in the same apartment complex as Father. She helped take care of her children when Father was at work. The social worker informed Mother that she had not complied with her case plan and that the Bureau would recommend terminating services because Arlene was under the age of three. Mother asked if the Bureau would consider setting up a case plan for Father to have the child. Mother had not shown up for a drug test since August 19, 2005.
Father told the worker that he was overwhelmed with caring for four young children by himself and was not sure if he could raise another child on his own. He wanted custody of Arlene, but doubted that he could find the time and energy to provide for her. Father was advised to inform his attorney or the social worker if he wanted a reunification plan. He requested only visitation.
The parents missed visits on November 15 and December 22, but did attend two one-hour visits with Arlene in December. On December 8, Mother told the social worker that she was still homeless and was planning to go to a residential treatment program. The Bureau concluded that Mother had failed to comply with her plan and Father’s chances of reunification were “slim.” The maternal grandmother’s application for relative placement had been denied because she was housing people with serious criminal records and there were physical safety issues in the home. Arlene appeared to show no signs of attachment to her parents. The Bureau recommended setting a section 366.26 hearing.
A memorandum dated February 7, 2006, was prepared by social workers Diane Cohen and Cindy Vogl to provide updated information to the court to the following effects: The four siblings who had been living with Father had been detained. The home was found to be uninhabitable and unsafe for the children. There was no electricity, the refrigerator did not work, and there was no food. Father and the children had last had bread and milk for dinner. Several car batteries were wired to light bulbs for lighting. Mother had left the home several days earlier and was reportedly staying with drug dealers.
Police found Father and the four children outside on the sidewalk at 4:30 a.m., shivering and crying. Father said he was afraid of Mother’s acquaintances and believed they might burn down the apartment. It appeared that Father could not provide appropriate care for the four older children, and the Bureau could not recommend services for Father to reunify with Arlene who, at nine months of age, was even more vulnerable than her siblings.
After a number of continuances, a contested review hearing was held on March 14, 2006. Father was not present for the hearing, but he was represented by counsel. The social worker testified that since January 2006, Mother had visited twice with Arlene, once on February 14 and again on March 7. Mother had entered into a residential substance abuse treatment center on February 22, 2006. Mother argued that, despite getting a late start, she was now in a program that could help her achieve all the goals of her case plan. Mother contended that there was a substantial probability that Arlene could be returned to her within the statutorily-allowed time for reunification. Father argued that he had never been provided with services and, thus, the court could not make a finding that reasonable services had been provided. At the end of the hearing, the court adopted the recommendations of the Bureau and set the section 366.26 hearing for June 6, 2006. Noting that the court had to consider what was in the best interests of the child, the court found that Mother’s efforts were “too little too late,” and that Father had made no attempt to obtain services despite the Bureau’s efforts.
Father challenged the setting of the section 366.26 hearing by way of a petition for extraordinary writ. While the petition was pending, the juvenile court continued the section 366.26 hearing to July 11, 2006. On June 21, 2006, this court denied the petition on the merits.
The Bureau filed a report dated June 6, 2006, for the section 366.26 hearing. It recommended termination of parental rights and adoption as the permanent plan. Arlene had been living with her foster/prospective adoptive parents since February 2006. They had an approved home study and were committed to adopting her. Arlene and her foster/prospective adoptive parents had “formed a mutual loving relationship,” and Arlene was “blossoming in their care.”
Visitation with Mother and Father was described as “very inconsistent.” The visits on February 14 and March 7, 2006, alternated with canceled visits on February 28 and March 21, 2006. Only Mother attended a visit on April 27. The visit that was scheduled for May 11 was canceled. Visitation had been suspended on the court’s own motion at a hearing on June 6, 2006.
Mother was reportedly progressing in the residential program she had entered on February 22, but was discharged prior to completing the 90-day program “due to repeated non-compliance with program requirements.”
The report stated that Arlene has seven siblings, but has never lived with any of them. The two oldest were living with their maternal grandmother. The four who had been in Father’s care were currently in foster care under a court-ordered reunification plan. In addition, Mother had a new baby, Marisol, who had been born in April 2006, and was living with her in the treatment program with a dependency petition pending.
On July 7, 2006, just days before the scheduled section 366.26 hearing, Mother filed a section 388 petition to modify orders of the juvenile court. Mother alleged that she had completed 90 days of residential drug treatment, that Arlene was bonded with her, and that it was in Arlene’s best interests to grow up with her biological parents and siblings. The court set the petition for a hearing on July 11, 2006, the same day as the section 366.26 hearing.
On July 10, 2006, the Bureau submitted a memorandum to the court as an update to its section 366.26 report. The memorandum recounted that Mother had entered a residential treatment program but had been discharged on May 9 for noncompliance with program rules. Her infant, Marisol, had been detained on May 26, 2006, and placed in foster care for about two weeks. On May 26, Mother entered a different residential treatment program. Marisol was returned to Mother’s care on June 6, 2006. Father tested positive for amphetamines on March 24, 2006, and failed to appear for several subsequent random drug tests in March and April 2006. He tested negative several times in May and June 2006. On May 25, 2006, he tested positive for opiates. On June 30, 2006, Mother telephoned the Bureau and asked that the Bureau consider placing Arlene with her mother. This relative placement had already been denied in October 2005 due to criminal history and mental illness issues of adults living in the household. The dependency cases of Arlene’s four siblings who had been in Father’s custody and then removed earlier in 2006 remained active with reunification services being provided. A six-month review was set for October 2006. The case of the infant, Marisol, was set for disposition on July 20, 2006.
On July 11, 2006, a combined hearing regarding Mother’s section 388 petition and the section 366.26 hearing was held. Father’s status was raised from alleged to presumed father. Mother testified in support of her section 388 petition. She stated that she was currently 48 days into a six-month-long residential substance abuse treatment program. Previously, she had spent 76 days in a residential treatment program, but left the program because she was having problems with people in the program. The Bureau maintained its position that Mother’s discharge from the first program was involuntary due to non-compliance with the program’s rules. In the disposition report for Marisol’s case that was filed on July 20, 2006, the Bureau provided the additional information that during her stay in the first program, Mother had been placed on two behavior contracts for dishonesty before being discharged from the program.
We granted Mother’s request for judicial notice of this document.
Mother’s youngest daughter, Marisol, was living with her in the residential program. The child had been detained by the juvenile court when Mother left the residential program, and was not returned to her until she resumed residential treatment. The Bureau’s recommendation for Marisol was family maintenance services with Mother and that she be placed with Mother in the residential program. In its disposition report, the Bureau stated its belief that Marisol was safe in Mother’s care while she remained in a residential treatment program, but indicated that it would detain Marisol and place her in foster care if Mother left the program prior to successful completion.
Mother believed it would benefit Arlene to grow up with her siblings, and stated that she was now ready to turn her life around. Father was self-employed as an auto mechanic and had the funds to provide a home for the family. However, he was having trouble renting a home because he did not have identification and a social security card. Mother has those things so, when she completes her program, she will be in a position to rent an apartment for the family.
On cross-examination, Mother testified that she had been using methamphetamine for 10 or 11 years, but that she had not used it at all during her pregnancy with Marisol. Mother was aware that four of her children who were living with Father had been detained in February, but she was not aware that Father had said he was afraid of the people she was associating with and feared that they might burn down the apartment. She denied staying with drug dealers at that time, but admitted that she was not working with the Bureau on her case plan. During a dependency case in 2004 regarding her older children, Mother acknowledged not participating in court-ordered drug testing and treatment in order to reunify with her family.
Following the completion of the evidence and argument, the court denied the section 388 petition, finding that there had not been a significant change of circumstances, and that it would not be in Arlene’s best interests to extend the time for reunification.
Immediately thereafter, the court held the section 366.26 hearing. No further evidence was presented and all counsel submitted. The court found, by clear and convincing evidence, that it was likely the child would be adopted, that terminating parental rights was in the child’s best interests, and that return of the child to the parents’ custody would be detrimental to the child. The court terminated Mother and Father’s parental rights and adopted the Bureau’s other recommendations attached to its July 10, 2006, memorandum.
Mother and Father filed timely notices of appeal.
III. DISCUSSION
A. The Section 388 Petition
Mother contends the court erred in denying her section 388 petition to modify prior orders of the court.
Section 388 provides that a parent may request that the juvenile court change, modify, or set aside a prior court order. The petitioner must show that there is both (1) a change of circumstances or new evidence, and (2) the proposed change is in the child’s best interests. (§ 388, subds. (a), (c).) A petition under section 388 must be liberally construed in favor of its sufficiency, and the court must order a hearing if the petition presents any evidence that a hearing would promote the best interests of the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)
At the hearing, the petitioner bears the burden of proving, by a preponderance of the evidence, that “there is new evidence or that there are changed circumstances that make a change [of a prior order] in the best interest of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317-318.) The petitioner must prove changed, as opposed to merely changing, circumstances. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.) “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, does not promote stability for the child or the child’s best interests. (In re Edward H. [(1996)] 43 Cal.App.4th 584, 594.)” (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
On review, the juvenile court’s determination will not be disturbed absent a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Under this standard, the reviewing court has no authority to reweigh the evidence or to substitute its judgment for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
We find no abuse of discretion. The juvenile court granted Mother a hearing on her petition. The evidence showed that, at the time of the hearing, Mother was 48 days into a six-month residential substance abuse treatment program in her efforts to overcome a 10-plus year history of methamphetamine abuse. She had spent 76 days in the previous residential treatment program, and then left without successfully completing it. She had consistently tested negative for drugs only since late February 2006. ~(RJN, Exh. A, p. 13)~ She had yet to complete a treatment program, and there was no indication that she could maintain a sober life outside of a structured setting.
The situation presented here is similar to that in In re Casey D., supra, 70 Cal.App.4th 38, in which, just prior to the section 366.26 permanency planning hearing, the mother filed a section 388 petition to regain custody of her 16-month-old daughter, claiming that she had changed her life and was drug-free. There was evidence of the mother’s extensive drug-use history, and, at the time of the hearing in March 1998, she had been drug-free only since November 1997. The juvenile court found that the mother’s circumstances were changing, rather than changed, and held that it was not an abuse of discretion to deny the petition. (Id. at pp. 48-49.)
Mother also alleged that she was bonded with Arlene and that Arlene would benefit from strengthening this bond. However, there was no evidence presented on this issue. Arlene was 14 months old at the time of the hearing and had been detained since she was four days old. Arlene’s young age and Mother’s failure to attend visits consistently supported the opposite conclusion, i.e., that there was no significant bond between Mother and Arlene. By contrast, the Bureau reported that Arlene and her foster/prospective adoptive parents had formed a mutual loving relationship.
Mother argues extensively that the infant Marisol’s placement with Mother in the residential program during the provision of reunification services demonstrates changed circumstances, that she is a good parent, and that it would be in Arlene’s best interests to be returned to her care. Mother further contends that the apparently inconsistent outcomes of Marisol’s and Arlene’s dependency cases demonstrate that the juvenile court erred in declining to extend services in Arlene’s case. The contentions lack merit. It is not necessary for the juvenile court to reconcile these two separate cases. The two cases are at different stages of proceedings, and the circumstances surrounding each child are different. In contrast to Arlene’s situation, Marisol’s dependency case was in its early stages, when family reunification is the goal. Mother was already in a residential treatment program and testing negative for drugs when Marisol was born in April 2006. At the time of the hearing, Marisol was three months old and had been residing with Mother for most of that time. Marisol’s placement with Mother was conditional; if Mother left the program prior to successful completion, the Bureau would again detain Marisol for her own safety and place her in foster care. Mother was finally trying to recover from her decade-long drug abuse problem and to turn her life around.
Arlene’s situation was different. From the time Arlene was detained in May 2005, Mother had been receiving family reunification services. She made almost no effort to comply with her plan until she entered the residential treatment program on February 22, 2006, two months after the date originally set for the six-month review hearing. Despite being afforded services, Mother failed to consistently visit Arlene in order to develop a bond with her. When the review hearing was finally held in March 2006, Mother did not contest the termination of services and the setting of the section 366.26 permanency planning hearing, at which time the focus of the proceedings shifted from family reunification to the child’s need for stability and permanency. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Under these circumstances, the trial court’s denial of Mother’s petition for more reunification services was not an abuse of discretion.
B. Relative Placement
Mother also contends the juvenile court erred in not considering placing Arlene with her maternal grandmother, Hilaria A. The contention has no merit. As respondent points out, Mother failed to object in the juvenile court and thus cannot raise the argument on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339 [rule of appellate law that an argument cannot be raised on appeal for the first time applies in juvenile dependency cases].)
The Bureau reported at the dispositional hearing that it would assess the maternal grandmother, Hilaria A., for relative placement of Arlene. At the six-month review, the Bureau reported that Hilaria’s application had been denied. Prior to the section 366.26 hearing, Mother telephoned the social worker and indicated that she wanted the Bureau to consider placing Arlene with Hilaria. In its July 10, 2006, memorandum to the court, the Bureau again set forth that the assessment had been conducted and that the application had previously been denied. Mother did not object or request a re-assessment either at the six-month review hearing or at the combined section 388/section 366.26 hearing. She cannot do so for the first time in this court. (In re Casey D., supra, 70 Cal.App.4th at pp. 53-54 [placement of a dependent minor with a relative “is an intensely factual issue (e.g., as to whether relatives were interested in or would be approved for custody); it is not an issue which may be raised for the first time on appeal”].)
IV. DISPOSITION
The orders appealed from are affirmed.
We concur: Lambden, J., Richman, J.