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In re B.C.

California Court of Appeals, Fourth District, Second Division
Apr 14, 2009
No. E046700 (Cal. Ct. App. Apr. 14, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIJ112491 . Charles J. Koosed, Judge.

Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.

Pamela J. Walls, Interim County Counsel, Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.


OPINION

MILLER J.

Linda Rehm, under appointment by the Court of Appeal, for Minor.

M.C. (Mother) appeals from the juvenile court’s orders (1) terminating her parental rights to her daughter, B.C. (Welf. & Inst. Code, § 366.26, subd. (b)(1)), and (2) denying her petition for a finding of changed circumstances (§ 388). Mother makes two contentions. First, Mother argues the juvenile court erred by not holding a hearing prior to ruling on her section 388 petition. Second, Mother contends the juvenile court erred by terminating her parental rights because there was evidence that B.C. would benefit from continuing her relationship with Mother. B.C.’s counsel filed a brief supporting the orders of the juvenile court. We affirm the orders of the juvenile court.

All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

On July 11, 2006, the Riverside County Department of Public Social Services (the Department) filed a petition alleging (1) Mother failed to protect B.C. (§ 300, subd. (b)); (2) caused B.C. to suffer or placed her at risk of suffering serious emotional damage (§ 300, subd. (c)); and (3) left B.C. with no provision for support (§ 300, subd. (g)).

On July 8, 2006, Mother called the police because she believed people were trying to break into her apartment. The police discovered methamphetamine and a pipe in the house, near B.C., and a knife under a pillow that B.C. had access to. Mother had been diagnosed with schizophrenia, but had not taken her prescription medication for six months. Mother said she was diagnosed as “‘psychotic for hearing voices’” and said that she had not seen her psychiatrist for two months, although she was supposed to see the psychiatrist once a week. Mother admitted smoking methamphetamine on July 7, 2006, and driving with B.C. while under the influence of the drug.

The police arrested Mother for child endangerment, possession of a controlled substance, and being under the influence of a controlled substance. B.C. was placed in protective custody. The juvenile court found the allegations in the petition to be true, with the exception of an allegation related to rotting food in the home. The juvenile court ordered the Department to provide reunification services to Mother. Mother had previously received services from the Department from June 7, 2000, to February 2, 2001, due to B.C. testing positive for methamphetamine and marijuana at birth. Mother suffered two prior convictions for possessing a controlled substance.

At the time of the six-month reporting period, Mother was in an inpatient substance abuse program. Mother had been incarcerated from October 16 to December 20, 2006, and from January 2 to January 24, 2007. Mother had not completed any parenting classes due to her incarceration and treatment. B.C. visited Mother three times, with B.C.’s maternal aunt. The visits with Mother went well, and B.C. “like[d]” seeing Mother. The juvenile court continued B.C.’s placement and ordered the Department to continue offering reunification services to Mother.

At the time of the 12-month reporting period, in September 2007, Mother had completed the inpatient substance abuse program, was renting a room in a private home, and had no active warrants; however, Mother missed two appointments with her therapist and had not begun her parenting classes. Also, Mother did not appear for random drug testing on August 15, 2007, September 14, 2007, or September 17, 2007. B.C. was living with her maternal grandparents and enjoyed living at their home. Mother visited with B.C. on a weekly basis and “[t]here appear[ed] to be a positive bond between the two.”

On October 13, 2007, at approximately midnight, Mother went to B.C.’s placement at the maternal grandparents’ home. Mother yelled and screamed in the front yard, demanding to see B.C. Mother refused to leave. The police were called, and Mother was arrested. The criminal court ordered Mother to serve her sentence on weekends, and she received a citation for an outstanding warrant in San Bernardino County. On October 22, 2007, Mother arrived at the Department for a scheduled visit with B.C. Mother appeared unsteady and admitted using methamphetamine two days prior to the visit. The Department cancelled the visitation. On October 29, 2007, Mother was arrested and charged with possessing a controlled substance and being under the influence of a controlled substance; Mother also failed to attend her visitation appointment that day. Mother failed to attend a visitation appointment on November 5, 2007, as well. On November 15, 2007, the juvenile court terminated Mother’s reunification services.

On February 9, 2008, Mother was arrested for possessing a controlled substance. Mother was convicted and sentenced to one year four months in state prison. Mother failed to attend any visitation appointments with B.C. following the October visit, when she appeared unsteady and admitted using methamphetamine. B.C. spoke to Mother on the telephone while Mother was incarcerated. B.C. did “not appear to be upset at the lack of contact” with Mother, and had adjusted to living in her placement. B.C. commented that she would like to continue living in her placement, because she considered her grandparents’ home to be her home.

On September 4, 2008, Mother filed a request to change a court order. (§ 388.) Mother requested the court grant her six more months of reunification services. Mother claimed circumstances had changed because she was enrolled in a treatment program while incarcerated, which addressed substance abuse, parenting, employment, and counseling. Mother claimed that she would be released from prison on October 14, 2008, and would continue her treatment in a residential program that allowed children to join their mothers. Mother alleged that she completed her parenting classes and phase one of her treatment program. Mother felt the changed order would be best for B.C. because B.C. had been with Mother for most of her life, and the two shared a bond.

On September 18, 2008, the court held a hearing on Mother’s request to change the court’s order. The juvenile court found a change of circumstances, but concluded a change in the court’s order would not be in B.C.’s best interest. The court denied Mother’s request.

Also on September 18, 2008, the court held a hearing concerning Mother’s parental rights. Mother requested that legal guardianship, rather than adoption, be B.C.’s permanent plan. The juvenile court denied the request. The court terminated Mother’s parental rights.

DISCUSSION

A. Hearing

Mother contends the juvenile court erred when it denied her petition for a finding of changed circumstances (§ 388) without a hearing. We disagree.

“Section 388 permits ‘[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court’ to petition ‘for a hearing to change, modify, or set aside any order of [the] court previously made or to terminate the jurisdiction of the court’ on grounds of ‘change of circumstance or new evidence.’ (§ 388, subd. (a).) ‘If it appears that the best interests of the child may be promoted by the proposed change of order,... the court shall order that a hearing be held and shall give prior notice....’ ([§ 388], subd. (c).) Section 388 thus gives the court two choices: (1) summarily deny the petition or (2) hold a hearing. [Citations.]” (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.)

On September 4, 2008, Mother filed a request to change a court order (§ 388) (Form JV-180). The court scheduled a hearing for September 18, 2008. On September 18, 2008, the court commented that Mother’s written request satisfied the prima facie requirement for a hearing. The court asked if “anybody want[ed] to be heard” regarding the section 388 request. Mother’s attorney argued that the request should be granted. B.C.’s counsel and the Department’s counsel argued that the request should be denied. The court denied the request, finding that it would not be in B.C.’s interests to grant the motion. The court concluded that the circumstances were changing, and Mother had made some progress, but that she still had “a lot... left... to do” before B.C. could be placed in her care, such as aftercare and housing issues. The court found that B.C. needed stability and security, which is why it would be in B.C.’s best interest to not grant the motion.

In sum, the juvenile court held a hearing regarding Mother’s request for a finding of changed circumstances. Accordingly, we conclude the juvenile court did not err by summarily denying Mother’s request.

To the extent Mother intended to argue that the trial court erred by denying her request, we disagree. “We review the grant or denial of a petition for modification under section 388 for an abuse of discretion.” (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.’ [Citation.]” (Id. at p. 1229.)

First, in regard to the seriousness of the problem, the court noted Mother’s struggle with drugs over the time that B.C. was out of her custody. Second, as to the bonds with B.C., the court found that B.C. needed security and stability, which the maternal grandmother could provide. The court hoped that Mother would continue to be a part of B.C.’s life. Third, in regard to ameliorating the problem, the court concluded that Mother had made progress, but still had a lot to accomplish, such as aftercare and securing housing.

The juvenile court considered the proper factors, and its analysis was thoughtful, reasonable, and based on the facts of the case. Accordingly, we conclude the court did not abuse its discretion.

B. Termination of Parental Rights

Mother contends the juvenile court erred when it terminated her parental rights because there was sufficient evidence that B.C. would benefit from continuing the relationship with Mother. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.

Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when ‘[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ We recognize that interaction between parent and child will usually confer some incidental benefit to the child. [Citation.] To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life resulting in a significant, positive emotional attachment of the child to the parent. [Citations.] [¶] When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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.” [Citation.]” (In re B.D., supra, 159 Cal.App.4th at pp. 1234-1235.)

“We determine whether there is substantial evidence to support the court’s ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.]” (In re B.D., supra, 159 Cal.App.4th at p. 1235.)

Mother stopped attending visits with B.C. following the October 2007 visit, when Mother appeared unsteady and admitted using methamphetamine; B.C. spoke to Mother on the telephone while Mother was incarcerated, but B.C. did “not appear to be upset at the lack of contact” with Mother, and had adjusted to living in her placement. B.C. said that she considered her grandparents’ home to be her home.

The foregoing is substantial evidence to support the conclusion that the strength and quality of the relationship between Mother and B.C. did not outweigh the sense of security and stability provided to B.C. at her maternal grandparents’ home. Mother was not occupying a parental role in B.C.’s life, such that B.C. would be greatly harmed by severing the relationship. Accordingly, we conclude that substantial evidence supports the order of the juvenile court.

DISPOSITION

The juvenile court’s orders terminating Mother’s parental rights to her daughter, B.C., and denying Mother’s petition for a finding of changed circumstances are affirmed.

We concur: RICHLI, Acting P. J., GAUT, J.


Summaries of

In re B.C.

California Court of Appeals, Fourth District, Second Division
Apr 14, 2009
No. E046700 (Cal. Ct. App. Apr. 14, 2009)
Case details for

In re B.C.

Case Details

Full title:In re B.C., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Apr 14, 2009

Citations

No. E046700 (Cal. Ct. App. Apr. 14, 2009)