Opinion
G037873
5-4-2007
In re BRANDY J., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MICHAEL J. et al., Defendants and Appellants.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant Michael J. Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant Maryann A. Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED
Maryann A. (the mother) and Michael J. (the father) appeal the termination of their parental rights. The mother argues her petition under Welfare and Institutions Code section 388 asking for return of the child or another opportunity to reunify was improperly denied. Both parents assert that the court should have applied the benefit exception of section 366.26, section (c)(1)(A). We find that neither contention has merit and affirm the order.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
I
FACTS
One-year-old Brandy and her siblings, Dawn (age nine) and Patrick (age six) were removed from the fathers care in April 2005 when he was arrested on drug charges. At the time, Brandy lived with the father and her siblings lived with the paternal grandmother. After detention, the siblings were released back to the grandmother, and Brandy was placed in a foster home.
This appeal pertains to Brandy only.
In 2004, Michael had been granted custody of the siblings by a Florida court due to the mothers drug use.
The Orange County Social Services Agency (SSA) filed a section 300 petition alleging: an unsafe home due to the presence of drug paraphernalia, the fathers arrest and history of methamphetamine abuse, the mothers 17-year history of drug abuse, and the mothers April 2005 arrest for possession of a controlled substance.
Brandy had tested positive for cocaine at birth and had been removed from the mothers care. The mother had previously participated in drug treatment in Florida, and was in a residential treatment program when the children were detained. By the end of May 2005, she was terminated from the treatment program and subsequently began missing drug tests. She was arrested for violating probation, but dropped from sight after her release.
At the combined jurisdiction/disposition hearing on July 18, the mother informed the court she had entered another residential treatment program. The father was still incarcerated. The parents pled no contest to an amended version of the petition and stipulated to the recommended case plan providing reunification services. The court sustained the petition. Both parents were required to complete parenting education, a substance abuse treatment program, and drug testing. The mother was given weekly monitored visits, with monthly visits for the father while he was in jail.
The six-month review was held in December 2005, and at that time, the parents stipulated to continue reunification services. Brandy remained in foster care and appeared to be doing well. She was attached to her foster mother. The visits with her parents generally went well, but the social worker expressed concerns about their parenting skills.
SSAs report stated that the mother had quit her residential treatment program in October, directly prior to being terminated. She was residing at a sober living home and under the care of a psychiatrist, who had prescribed medications for bipolar disorder. The drug tests she completed were clean, though she sometimes forgot to schedule them. The father was released from incarceration in November 2005. He was on probation, residing in a sober living home, and working part time. He was also taking medication, including antidepressants and a tranquilizer.
The reports prior to the 12-month review in June 2006 evidenced a continuation of the mothers previous behavioral pattern. She moved repeatedly and was terminated from a perinatal program in December 2005. She was also briefly reincarcerated on a probation violation. She reenrolled in the program, then relapsed again in April. A drug test was positive on April 17, and on April 28, she was again incarcerated. She stayed on her prescribed medications but had not completed parenting education.
Twice weekly visits had been authorized, but the mother opted for one longer weekly visit instead. Visitation was somewhat inconsistent, with five no-shows or last minute cancellations between February and April. Although the visits appeared enjoyable, the mother was reportedly reluctant to engage Brandy one-on-one for long periods of time.
The fathers progress was equally problematic. He missed drug tests and tested clean only once after April. He delayed starting his drug treatment, and only managed to stay in a program for one day. He admitted using methamphetamine in April and tested positive on June 29. After failing to show up three times, his counseling referral was closed. He chose to discontinue his prescribed psychiatric medications. His housing and employment situations were unsettled. He did complete parenting education, but he missed one visit with Brandy and often arrived late or left early. The fathers behavior was appropriate but he often left parenting tasks to the grandmother.
Brandy, meanwhile, was doing well in her placement. Based on her overall characteristics, SSA determined that she was adoptable. Her foster mother was willing and able to adopt her and to take steps to maintain Brandys relationships with her siblings.
SSA recommended terminating family reunification services. At the hearing, the parents submitted on SSAs reports. The court terminated services and scheduled a permanency planning hearing pursuant to section 366.26. The maternal grandmother was considering moving to California, and the court ordered that SSA consider her for placement if she did so. The court also ordered monitored visitation once per week for three hours.
During the period between July and November 2006, SSA reported that visits were sometimes problematic. During her time at a residential treatment facility, the mothers visits were limited to weekends. SSA also noted the mother had trouble assuming a parental role as opposed to that of playmate. As to the father, SSA reported that he had visited consistently but that Brandy did not look to him as a father figure.
SSA filed a permanency planning report recommending termination of parental rights as to Brandy. (For her siblings, who remained with the paternal grandmother, guardianship was recommended as the permanent plan.) Because of the potential for placement with the maternal grandmother, whose move to California had been delayed, SSA could not take steps toward adoption by Brandys current foster mother. SSA nonetheless determined that Brandy was adoptable.
On the day of the permanency planning hearing, the mother filed a petition for modification pursuant to section 388. She asked for return of Brandy, a 60-day trial visit, or more reunification services. Her petition alleged she had been sober for seven months, that she had completed a three-month residential drug treatment program and other services, and that she had a room reserved at a sober living facility where Brandy could live with her. She also stated that she had full-time employment and was able to care for Brandy.
In ruling on the petition, the court noted the mothers extensive history of drug use, Brandys age, the amount of time she had spent in foster care, and the problems with visitation. The court found the mother had not made a prima facie showing of changed circumstances, nor of Brandys best interests, and denied a hearing. As to permanency planning, after hearing testimony, the court found that none of the statutory exceptions applied and terminated parental rights.
II
DISCUSSION
The Mothers Section 388 Petition
The mother argues the trial courts denial of her section 388 petition was a denial of due process, or alternatively, an abuse of discretion. Although she admits that the cases discussing section 388 address the issue in terms of abuse of discretion, she argues that the issue of whether a hearing should have been granted is a matter of due process and therefore entitled to a less deferential standard of review. We disagree. "We review the juvenile courts summary denial of a section 388 petition for abuse of discretion. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250, italics added.) Moreover, the courts discretion to determine whether a section 388 petition is sufficient to order a hearing comports with due process standards. (In re Heather P. (1989) 209 Cal.App.3d 886, 891-892.) Therefore, we will not disturb the trial courts decision unless the court "`"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
In pertinent part, section 388, subdivision (a) provides: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court. . . may, upon grounds of change of circumstances or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order [the] court previously made . . . ." If the petitioning party presents a prima facie case that the statute applies, a hearing should be granted.
"The parent seeking modification must `make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]" (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799. 806.)
As to the first part of the required prima facie showing, the mothers petition stated that she had been sober for seven months, since June 2006. She was in a residential program until September. She had attended a number of classes and therapy and found a sponsor for a 12-step program. The mother stated she had finally been able to accept responsibility for the harm her addiction has caused. She had successfully completed drug testing, participated in her sobriety program, and attended counseling. She had a room reserved in a sober living environment and was employed.
The mothers two paragraph argument that these facts sufficiently demonstrated changed circumstances is unpersuasive. While the mothers actions were commendable, the court was required to examine them in the context of her history. She had been out of residential treatment for just six weeks. By her own admission, she had a history of periods of sobriety followed by her return to drug abuse. The prior loss of custody of her two older children had not been enough to motivate the mother into long-term sobriety. Even through the dependency process, she had demonstrated a propensity for false starts — enrolling in programs and failing to complete them, and beginning periods of sobriety that subsequently ended.
In In re Cliffton B. (2000) 81 Cal.App.4th 415, the court reviewed the denial of a section 388 petition brought by a father struggling with drug addiction. The court noted: "Carls seven months of sobriety since his relapse in January, while commendable, was nothing new. He had a history of drug use dating back to his college days, and since then his periods of sobriety alternated with recurring drug use. Even after the initial detention of his children, it took Carl six months before he was able to stay sober for any length of time. Then, after eight months of sobriety, he still succumbed to the temptation of illegal drugs. As Carls counselor confirmed, relapses are all too common for a recovering drug user. `It is the nature of addiction that one must be `clean for a much longer period than 120 days to show real reform. [Citation.] In Carls case, 200 days was not enough to reassure the juvenile court that the most recent relapse would be his last." (Id. at pp. 423-424.) The facts of this case are similar.
At best, the mothers changing facts demonstrated circumstances that were starting to change. A showing that circumstances are beginning to change is insufficient to warrant a hearing on a section 388 petition. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Section 388 has been characterized as an "escape mechanism" that is properly activated when parents undergo a complete reformation in the short period between the end of reunification services and the termination of parental rights. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528 (Kimberly F.).) The standard for a change of circumstances as contemplated by Kimberly F. is the removal of the reason for the dependency. (Kimberly F., supra, 56 Cal.App.4th at p. 522.) There was no such showing here. We therefore find the court did not abuse its discretion that the mother had not demonstrated a change of circumstances.
The court was also correct in determining that the mother had not presented a prima facie case that altering its prior orders would be in the childs best interests. Factors for the court to consider when determining a childs best interest are: "(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.)
When a section 388 petition is filed after reunification services have been terminated and a section 366.26 hearing has been set, the primary focus for determining the childs best interests should be on the childs need for permanency and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) "[T]he parents interest in the care, custody and companionship of the child are no longer paramount." (Ibid.)
In support of her petition, the mother averred: "Brandy and I have a very close bond. I know this because she has been very attached to me since she was a baby. My child looks to me for comfort when something happens in my presence. Brandy has asked me during these visits if I would come home with her." Little else is offered in the way of demonstrating that changing the courts prior orders would be in Brandys best interests, and the self-serving and conclusory nature of the mothers statement is apparent.
At the time of the hearing, Brandy was one month short of her third birthday. She had been out of her fathers custody since she was approximately 16 months old, and in the care of her foster mother for all but approximately one month of the detention period. SSAs reports evidenced that Brandy had a bond with her foster mother, who was willing to adopt her.
Looking to the Kimberly F. factors, the court was faced with a mother who had a serious, long-term drug problem that had led to her losing custody of her older children. The problem was obviously not one that was easily ameliorated, and the child had a demonstrated bond with her foster mother. That was the evidence on one side of the equation. On the other side was the mothers bond with the child with whom she had lived for only a few months since birth. The interest in permanency and stability clearly outweighed any such bond at this point of the proceedings. We therefore find no abuse of discretion in the trial courts ruling that the mother had not demonstrated the best interests of the child would be served by changing the courts orders.
The Benefit Exception of Section 366.26, subdivision (c)(1)(A)
Both parents argue the trial court erred by refusing to apply section 366.26, subdivision (c)(1)(A), typically known as the benefit exception. We review findings as to the section 366.26 exceptions under the substantial evidence rule. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (Ibid.)
Once the juvenile court determines that there is no probability of reunification, adoption is the preferred permanent plan. (§ 366.26; In re Edward R. (1993) 12 Cal.App.4th 116, 122.) Should the court find it likely that the child will be adopted if parental rights are terminated, the burden shifts to the parent or parents opposing adoption to demonstrate that termination would be detrimental to the child under one of four statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
One of these is the benefit exception, which requires an affirmative showing that termination would be detrimental to the child because the parent has maintained regular visitation and contact and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).) The parent must prove a substantive positive emotional attachment such that the child would be "greatly harmed" if deprived of the parent-child relationship. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Moreover, the court must find that the strength of the parent-child relationship outweighs the potential benefit of adoption. (Ibid.)
The first prong of the benefit exception is regular visitation and contact in a parental role. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) The quantity of contact must be considered within the context of the visitation the parent is permitted.
(In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) Even assuming the quantity was sufficient, given SSAs reports, we agree with the courts determination that the quality of those visits lacked a parental role and were in other ways problematic. After resuming visits after the mothers incarceration, Brandy, who had been toilet trained, began soiling herself. SSA reported the visits were on a "playmate" level and that the mothers parenting skills caused concern. The father also delegated parental responsibilities to the paternal grandmother and his skills needed improvement. The social worker testified that the father did not actively interact with Brandy and that she did not look to him as a father figure.
Even if the visitation and contact was sufficient, the court must also determine whether a child would benefit from continuing the relationship with the parent, balancing "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 parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
There was more than substantial evidence from which the court could conclude that any benefit to Brandy would be outweighed by a permanent, stable home. As discussed above, she had not been in either parents custody since she was 16 months old. She had demonstrated a bond with her foster mother. None of the evidence suggested that Brandy had such a strong emotional connection to either parent that she would suffer in "great harm" if it was severed. Indeed, the evidence supported a conclusion that neither parent was more than a "friendly visitor" to Brandy. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) The court, therefore, did not err in concluding that the benefit exception did not apply.
III
DISPOSITION
The order is affirmed.
We Concur:
SILLS, P. J.
BEDSWORTH, J.