Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County, Super. Ct. No. INJ018940. Christopher J. Sheldon, Judge. Affirmed.
Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, 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 Minors.
OPINION
HOLLENHORST, Acting P. J.
Appellant T.F. (mother) is the mother of A.Y., C.Y., and A.B.Y. (the children). Mother’s parental rights as to the children were terminated. On appeal, she contends that the juvenile court abused its discretion in denying her Welfare and Institutions Code section 388 petition, and that the beneficial relationship exception applied. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Counsel for the children filed a letter brief on September 15, 2008, asking us to affirm the court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2007, mother was 19 years old and father was 21 years old. They had three children and were not married. A.Y. was two years old at the time, and C.Y. and A.B.Y., who were twins (the twins), were less than one month old. The twins were admitted into the hospital on March 9, 2007, for jaundice. Some hospital staff members were concerned about the parents, because mother told them that father had previously been arrested for domestic violence and child endangerment and that he had a drinking problem. The nurses noted that father always smelled like beer when he came to the hospital. When a social worker went to investigate on March 15, 2007, she discovered that the parents had arrived at the hospital with A.Y. without a car seat. Father was waiting in the car for mother and was holding A.Y., who had just vomited. Mother told the social worker she was living with father and the paternal grandmother, and that father was an alcoholic. She said there had been at least two incidents of domestic violence between her and father when the police had to be called. Although the social worker noted that father smelled like beer when she talked to him, father denied he was an alcoholic and said he last drank a few days ago. Father also minimized the domestic violence problem. The social worker took custody of the children that day. The children were detained with a foster family.
Father is not a party to this appeal.
On March 19, 2007, the Riverside County Department of Public Social Services (the department) filed a section 300 petition on behalf of the children. The petition alleged that the children came within the provisions of section 300, subdivision (b) (failure to protect). Specifically, the petition included the allegation that the parents neglected the health and safety of A.Y. on March 15, 2007, by allowing her to ride in a car without a car seat. Furthermore, father, who was the driver of the car, smelled like alcohol. In addition, even though A.Y. vomited on the way to the hospital, she was left in the car with father on a warm day instead of being taken into the hospital to be assessed. Moreover, the parents neglected the twins, who were hospitalized for jaundice, by failing to comply with the hospital’s request that the parents visit them regularly. The petition also alleged that the parents had a history of domestic violence, that father had a history of abusing alcohol and controlled substances, and that he previously refused to participate in services offered to him to address his issues of domestic violence and substance abuse.
Detention
At the detention hearing on March 20, 2007, the court placed the children in the temporary custody of the department and detained them in foster care. They remained in the same foster home in which they had been placed.
Jurisdiction/disposition
The court held a jurisdiction hearing on April 10, 2007. The court found that the children came within section 300, subdivision (b), and adjudged them dependents of the court. The court ordered mother to participate in reunification services. Her case plan required her to complete a domestic violence program, participate in individual, group, and family therapy, complete an anger management program, complete a parenting education program, and submit to random drug testing.
Six-month Status Review
The social worker filed a six-month status review report on August 21, 2007, recommending that mother’s reunification services be terminated. The social worker reported that mother had partially complied with her case plan and had made only minimal progress. Mother completed a six-session parenting education course and attended eight sessions of a domestic violence victim’s program. She was referred to weekly individual counseling services on April 25, 2007, but had only attended eight sessions. She failed to appear for the random drug tests. Furthermore, mother continued to live with father, who was still abusive and used drugs. On July 31, 2007, mother and father were involved in a domestic dispute, during which the police were dispatched. Mother was arrested, but the charge was dismissed and she was released a few days later. While incarcerated, she admitted that she had been using methamphetamine while living with father.
As to visitation, the social worker reported that mother visited the children and was always accompanied by the maternal grandmother. Mother interacted well with the children; however, she often struggled with meeting their needs and required assistance from the maternal grandmother in responding to all three children.
The social worker concluded that mother had failed to demonstrate her ability to identify, develop, and maintain relationships that provided positive support, and that mother was not prepared to resume parenting the children full time, as shown by her lack of compliance with her case plan, failure to maintain sobriety, and the domestic violence incident.
A six-month status review hearing was held on October 11, 2007. The court found that mother’s progress toward alleviating the causes necessitating placement had been unsatisfactory. The court terminated reunification services and set a section 366.26 hearing for February 6, 2008.
Sections 366.26 and 388
The social worker filed a section 366.26 and postpermanency review report on January 7, 2008, recommending that parental rights be terminated. The social worker reported that mother had supervised weekly visitation with the children but was always accompanied by the maternal grandmother or other relatives. Mother interacted well with the children but still required assistance from others to respond to all three children. Mother was often directed by the maternal grandmother or relatives to attend to the children’s needs, such as feeding and changing diapers. The social worker informed mother of the importance of visiting the children alone, since it was difficult to assess her parenting skills when other people were assisting her. The social worker observed that mother appeared to lack insight into the developmental stages of the children.
The social worker further reported that the children’s current foster parents were going through the adoption process and were very excited about the possibility of adopting the children. The children had been placed with them since March 15, 2007. A.Y. was very attached to the prospective adoptive mother and referred to her as “mom” and referred to her placement as “home.” The twins demonstrated distress when separated from the prospective adoptive mother for visitation with mother and her relatives. The prospective adoptive parents were willing and able to provide a permanent, loving, and stable home for the children.
On February 6, 2008, mother made an oral Marsden motion. The court denied the motion but granted a continuance for mother to file a section 388 petition.
People v. Marsden (1970) 2 Cal.3d 118.
On February 20, 2008, the prospective adoptive parents filed requests for de facto parent status as to the three children. The court granted the requests on March 12, 2008.
On March 12, 2008, the social worker filed an addendum report stating that mother enrolled in the “Mom’s” program on October 16, 2007, and her tentative graduation date was March 26, 2008. However, mother had 10 unexcused absences and was thus unable to complete the program. In addition, the social worker reported that mother had a visit with the children on March 4, 2008, but never acknowledged the first birthday of the twins, which had been a few days earlier. Furthermore, during the visit the twins were crying, and A.Y. told mother it was because they missed their foster mother.
On April 2, 2008, mother filed a section 388 petition seeking return of the children to her custody, or, in the alternative, placement with her on family maintenance. As to changed circumstances, mother alleged she completed a 16-week domestic violence program, the P.R.I.C.E. Parenting Program, and a substance abuse program. She also alleged she continued to test clean from all substances, attended Narcotics Anonymous (NA) meetings weekly and visited the children regularly. As to the best interests of the children, mother alleged she had completed a substantial part of her case plan before her services were terminated, she continued in her substance abuse program, and she visited the children regularly. In addition, she alleged that she completed her case plan and had suitable housing. Mother attached certificates of completion from the P.R.I.C.E. Parenting Program and a domestic violence victim education program. She also attached a letter from the Riverside County Department of Mental Health stating that: 1) she was attending a substance abuse program, but had 10 unexcused absences; 2) she was attending two 12-step meetings per week; and 3) she drug tested negatively on October 16, November 15 and 29, December 10, 2007, and January 9, 2008. In addition, she attached reports showing negative drug test results for February 20, 2008, and March 6, 2008.
The social worker filed an addendum report on April 15, 2008, stating that mother did complete a parenting program on May 29, 2007, and that she enrolled in a domestic violence program on May 17, 2007. However, the social worker noted that mother was arrested on July 31, 2007, for domestic violence, thus showing that mother was not gaining any insight from her program. The social worker additionally noted that mother was due to complete her drug treatment program, but she did not even begin the program until after her reunification services were terminated. The social worker concluded that mother had not demonstrated she would be able to maintain her sobriety for a reasonable period of time.
The social worker further reported that mother had a supervised visit with the children at a park on April 8, 2008, during which she appeared to be overwhelmed with handling the children and asked the social worker for help with them. The social worker stated that mother almost never attended visits by herself in order to demonstrate she was able to care for the children. Instead, mother used the assistance of family members or the department staff to do the duties she should be performing on her own. The social worker noted that mother favored A.Y. by bringing her gifts, while not bringing any gifts for the twins. The social worker further noticed that A.Y. recognized mother but did not obey her commands at visits. A.Y. enjoyed playing at the park and receiving gifts from mother, but when she was tired, she wanted to go home to her foster mother and take a nap.
The court held a hearing on the section 388 petition on April 21, 2008. After hearing arguments from counsel, the court stated that mother’s situation was changing, but that mother had not established changed circumstances. The court thus found it was not in the best interests of the children to reinstate services. The court then terminated parental rights and found that adoption would be the permanent plan.
ANALYSIS
I. The Court Properly Denied the Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her section 388 petition. We find no abuse of discretion.
We note that mother filed a section 388 petition as to A.Y. only. However, in the petition, mother requested that the court dismiss the case or, in the alternative, place “the children” with her on family maintenance. In her opening brief, she also argues that it was in the best interests of “the children” to return to her custody. Thus, we will address the section 388 petition as to all the children.
Under section 388, “[t]he petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the child’s best interest. [Citations.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) On appeal, we will not disturb the juvenile court’s ruling on a section 388 petition absent a showing of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
Mother argues that in denying her petition, the court erred in finding that her circumstances were only changing, but had not changed. It is true, as mother asserts, that she did show some changed circumstances from the time her reunification services were terminated. In the petition, she alleged she completed a 16-week domestic violence program, the P.R.I.C.E. Parenting Program, and a substance abuse program. She also alleged she continued to test clean from all substances, attended NA meetings weekly, and visited the children regularly. Her completion of a substance abuse program, attendance at NA meetings, and clean drug tests were changed circumstances. However, while these changes were admirable, her case plan did not require her to complete a substance abuse program or attend NA meetings. Furthermore, at the time the court terminated her reunification services on October 17, 2007, she had already completed the parenting program and the domestic violence program, and she was visiting the children regularly. Thus, these were not actually changed circumstances, as alleged.
In any case, “[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child[ren]. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Mother failed to do so. As to best interests, she merely alleged that she had completed a substantial part of her case plan before her services were terminated, she continued in her substance abuse program, and she visited the children regularly. In addition, she alleged she completed her case plan (presumably, she meant after her services had been terminated) and had suitable housing. At the section 388 hearing, mother’s counsel stated that mother had “adequate housing to take her children,” had a full-time job as a security guard, and had a supportive family. Mother clearly failed to demonstrate how returning the children to her custody would be in their best interests.
On appeal, mother argues that the record showed she was capable of caring for the children appropriately during visits by changing their diapers and feeding them. She also asserts that she “interacted well” with the children, that A.Y. showed an extremely strong bond with her and was always happy to see her, and that she (mother) sang to the babies at one visit. She then argues that it was in the best interests of A.Y. to reunify with her, in order to preserve A.Y.’s “beneficial emotional attachment” to her. Furthermore, mother contends it was reasonably inferable that the twins were strongly attached to A.Y., since she had always lived with them. Mother then jumps to the conclusion that reunification with her was also in the best interests of the twins, presumably so they could remain with A.Y.
Contrary to mother’s claim, although she interacted well with the children, she had not shown she was capable of taking care of them by herself. The social worker was not able to assess mother’s parenting skills when other people assisted her, and the maternal grandmother always attended the visits and assisted mother with the children. Mother was often directed by the maternal grandmother or relatives to attend to the children’s basic needs, such as feeding and changing diapers. The record thus demonstrated that mother was not able to care for the children but that she was dependent on others for help.
Moreover, mother’s argument that it was in the best interests of the children to return to her custody since A.Y. was attached to her, and the twins were attached to A.Y., is untenable. First, the record did not establish that A.Y. was attached to mother. The record showed that A.Y. recognized mother but did not obey her commands at visits. At the most recent visit reported, A.Y. enjoyed receiving gifts from mother, but when she was tired she wanted to go home to her foster mother and take a nap. Second, as mother impliedly concedes, there was no evidence the twins had any bond with mother that would make it in their best interests to reunify with her. The attenuated bond through A.Y. was insufficient.
Ultimately, we cannot say that the court’s decision to deny the section 388 petition was arbitrary or capricious. We accordingly find no abuse of discretion.
II. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents “have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The phrase “benefit from continuing the relationship” refers to a parent/child relationship that “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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent’s burden to show the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345 (Lorenzo C.).)
Here, mother merely declares that A.Y.’s strong bond with her comes within the beneficial parental relationship exception since “[t]he only reasonable inference” from the bond was that “this positive attachment was beneficial to [A.Y.]” Mother further concludes that, “[s]imilarly, because [A.Y.] had a caring, nurturing bond with the twins, and [mother] cared for all three children appropriately, the statutory exception applies” to all three children. Mother essentially argues that the beneficial parental relationship exception applied to A.Y., and then she attempts to incorporate the sibling relationship exception in section 366.26, subdivision (c)(1)(B)(v), in order to include the twins. Mother’s argument is weak at best. Her interactions at the visits with the children do not begin to demonstrate that her relationship with them promoted their well-being “to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother has proffered no evidence to support a finding that the children had a “substantial, positive emotional attachment [with her] such that [they] would be greatly harmed” if the relationship was severed. (Ibid.) To the contrary, the record shows the children were thriving in their prospective adoptive home, where they had lived for over a year. A.Y. was very attached to the prospective adoptive mother and referred to her as “mom,” and referred to her placement as “home.” The twins demonstrated distress when separated from the prospective adoptive mother for visitation with mother and her relatives. The prospective adoptive parents were willing and able to provide a permanent, loving, and stable home for the children. Furthermore, mother cites no legal authority to support her theory that since A.Y. had an alleged bond with the twins and mother cared for all three children appropriately, the beneficial parental relationship exception applied to all three children. The beneficial parental relationship exception required her to have a strong relationship with each child to apply to all three children.
We conclude that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), did not apply here.
DISPOSITION
The order is affirmed.
We concur: GAUT, J., KING, J.