Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 125454, James E. Herman, Judge
Maureen L. Keany, under appointment by the Court of Appeal, for Appellant.
Dennis A. Marshall, County Counsel, County of Santa Barbara and aria Salido Novatt, Sr. Deputy, for Respondent.
YEGAN, Acting P.J.
C.L. (mother) appeals from an order denying her petition for modification of the juvenile court's prior order terminating family reunification services. (Welf. & Inst.Code, § 388.) She also appeals from a judgment terminating her parental rights to her then 20-month-old son, C.S., Jr. (§ 366.26.) Mother contends: (1) the court abused its discretion in denying her section 388 modification petition, and (2) the court erroneously found inapplicable the exception to the termination of parental rights that applies where "[t]he parents have maintained regular visitation and contact with the child and the minor would benefit from continuing the relationship." (§ 366.26, subdivision (c)(1)(B)(i).) We affirm.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural Background
C.S., Jr. was born in June 2007 when mother was 22 years old. In November 2007 the parents were offered a "voluntary case plan... to address the ongoing issues of domestic violence and substance abuse." During the three and one-half months that the voluntary case plan was in effect, the police "received six service calls to the [parents'] residence for domestic violence disputes, one resulting in the child being injured." During the same period, Child Welfare Services received six referrals of general neglect, caretaker absence/incapacity and emotional abuse by the parents. According to the reporting parties, the parents engaged in substance abuse and domestic violence.
In response to the sixth referral, a social worker visited the parents' residence on February 26, 2008. There was an empty liter bottle of Vodka on the floor and an empty half-gallon bottle of wine on the kitchen countertop. "The home was extremely cluttered with papers, food crumbs, and [was] assessed by the [social worker] to be unsafe for the eight[-]month[-]old child...." C.S., Jr. was detained, and two days later a dependency petition was filed. C.S., Jr. was placed with his paternal grandparents.
On March 27, 2008, C.S., Jr. was declared a dependent child of the juvenile court. The court ordered that reunification services be provided to the parents and that they comply with the case plan. The case plan required mother to maintain a residence that "will be clean and free from alcohol and illegal substances." Mother was further required to "not allow persons in the home who are known substance abusers or who are under the influence."
The six-month status review report recommended that reunification services be terminated and that the court calendar a section 366.26 hearing to establish a permanent plan for C.S., Jr.. The report noted that the parents were living together and that father "has consistently tested positive [for alcohol and drugs] throughout the six-month review period." Mother missed four tests and tested positive for cocaine on August 29, 2008. Mother, therefore, "has not been successful in maintaining a home free of substance or alcohol abuse." The report also noted that, during supervised visits with C.S., Jr., "mother continues to demonstrate inconsistencies in her ability to provide adequate supervision and protection for the child." "She has placed the child in an unsafe position in the high chair, and served him food prior to ensuring it was a safe temperature."
A subsequent addendum report stated that mother again tested positive for cocaine on September 23, 2008. According to this report, on October 2, 2008, the parents were involved in a domestic violence incident at the paternal grandfather's home. When the police arrived, father attempted to drive away. He was stopped and arrested for driving under the influence.
On October 30, 2008, the juvenile court terminated reunification services and set the matter for a section 366.26 hearing. The section 366.26 report, dated January 29, 2009, recommended that the parents' parental rights be terminated. The report declared: "[M]other has had six positive tests since April 2008.... Given that the mother was being tested one time per week this is a significant amount of positive tests." Mother remained in a relationship with the father, despite her knowledge that he was abusing alcohol and drugs. Father had a total of 24 positive tests since April 2008. C.S., Jr. "is very bonded with [his paternal grandparents] and his extended family." He "does not demonstrate distress when [his] visits [with mother] end." His paternal grandparents have been providing "excellent care for [him] since he was 8 months old." They "considered legal guardianship" but "opt[ed] for the more permanent bond of adoption."
On February 5, 2009, mother filed a section 388 petition requesting that the juvenile court reinstate reunification services. The petition was accompanied by a supporting declaration from mother stating that (1) she is regularly attending Narcotics Anonymous meetings, (2) she has been testing clean at least twice a week, (3) she has a steady job, (4) she has rented a three-bedroom house, and (5) she is "[s]taying clear of the father." A letter from her employer showed that she was earning $625 per week. Drug and alcohol testing records showed that she had tested clean starting in November 2008.
An addendum report, dated February 24, 2009, declared: "To her credit [mother] has obtained a job as of November 10, 2008 and a residence as of December 19, 2008. She has also submitted proof of participation in [Narcotics Anonymous] and random drug testing, [showing that] she... consistently tested negative.... Child Welfare services does not believe that the approximately ninety days of stability demonstrated by the mother is sufficient to warrant a change in the recommendations [that parental rights be terminated]."
On February 25, 2009, the juvenile court conducted a combined section 388 and section 366.26 hearing. Mother testified as follows: She left father in September 2008. Before the termination of reunification services on October 30, 2008, she visited C.S., Jr. twice a week for about five and one-half hours per week. But some visits were cancelled because she had "missed tests or tested dirty." After October 30, 2008, she visited C.S., Jr. only three times for one hour each time. When C.S., Jr. first saw mother on each of these three visits, he was "a little shy" and it took "him a few minutes" to overcome his shyness. At the end of each visit, C.S., Jr. "is fine with leaving, but... he holds me really tight and doesn't want to let go for a second." Mother recognized that C.S., Jr. "is very well-bonded with his grandparents.... So, when he sees her [the grandmother], he wants to go with her. But he still knows that I'm his mom and I can feel that."
The juvenile court stated: "[M]other has made some extraordinary efforts in order to get things turned around and change circumstances." But the changes were made at "the 10th hour." "[I]n terms of sobriety program compliance..., we have got three months." "[W]e're, to some degree, in the too little too late sort of situation." The circumstances are "changing, but not changed."
With "extreme reluctance," the court decided to terminate mother's parental rights. The court reasoned: "We just don't have enough of a track record [for mother]," and C.S., Jr.'s "needs are paramount." "I have to look at what is in [his] best interest long-term. He has a bond with the grandparents. They are raising him as their own child. He recognizes them as parents at this point."
The court also terminated father's parental rights, but he has not appealed. (CT 256)
Discussion
I
Denial of Mother's Section 388 Petition
Mother contends that the trial court erroneously denied her section 388 petition requesting the reinstatement of reunification services. "Section 388 states in pertinent part that a parent may 'upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.' (§ 388, subd. (a).) The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances or new evidence and that the modification would promote the best interests of the child. [Citation.]... Whether an order should be modified rests within the sound discretion of the juvenile court, and its decision will not be disturbed on appeal absent a clear abuse of discretion. [Citations.]" (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.)
Where, as here, reunification services have been terminated, "the parents' interest in the care, custody and companionship of the child are no longer of overriding concern. [Citation.] The focus... shifts to the child's need for permanency and stability, and there is a rebuttable presumption that continued foster care is in the child's best interests. [Citations.]" (In re Aaliyah R., supra, 136 Cal.App.4th at p. 448.)
The juvenile court did not abuse its discretion. The court reasonably determined that mother's brief behavioral turnaround showed "changing" circumstances, not the required "changed" circumstances. (See In re Casey D. (1999) 70 Cal.App.4th 38, 47, 49) In view of mother's sporadic employment history, there was little assurance that she would remain at her new job. An addendum report noted that, "during the initial six[-]month review period, [mother] obtained two to three part[-]time jobs that did not last more than a few weeks...." Moreover, mother was still in the early stages of recovery from her substance abuse. It was too soon to draw any conclusion whether she had made meaningful progress toward rehabilitation. (See In re Mary G. (2007) 151 Cal.App.4th 184, 205-206; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.)
Even if we assume that mother established the requisite changed circumstances, she failed to carry her burden of showing by a preponderance of the evidence that the reinstatement of reunification services would promote C.S. Jr.'s best interests. Mother's bond with C.S. Jr. was tenuous. He was only eight months old when he was taken from her custody. During the ensuing 12 months, he lived with his paternal grandparents and developed a strong bond with them. A social worker reported that C.S., Jr. "does not demonstrate distress when [his] visits [with mother] end." During the four months prior to the section 388 hearing, mother visited C.S., Jr. only three times for one hour each time. Mother testified that, when C.S., Jr. first saw her on each of these three visits, he was "a little shy" and it took "him a few minutes" to overcome his shyness. She further testified that at the end of each visit he was "fine with leaving." She acknowledged that C.S., Jr. "is very well-bonded with his grandparents.... So, when he sees her [the grandmother], he wants to go with her."
Mother said that C.S., Jr. called her "mom," but this did not mean that he recognized her as his mother. The paternal grandmother testified: "He calls a lot of people 'mom.' He calls the babysitter 'mom.' He calls the babysitter's husband 'mom.' Mom is... like a pet term for him that he uses." In view of the absence of a close bond between mother and C.S., Jr., "[t]he juvenile court quite properly looked to [C.S., Jr.'s] need for permanency and stability in denying mother's petition for modification of its prior order[ ]." (In re Aaliyah R., supra, 136 Cal.App.4th at p. 448.)
II
Termination of Parental Rights
"If the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of [several] specified exceptions. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The exception at issue here applies if "[t]he parents have maintained regular visitation and contact with the child and the minor would benefit from continuing the relationship." (§ 366.26, subdivision (c)(1)(B)(i).) Mother had the burden of proving that this exception was applicable. (In re Derek W., supra, 73 Cal.app.4th at p. 826; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) She contends that the juvenile court erroneously found that it was inapplicable. We review the court's finding under the substantial evidence standard. (In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 575; contra, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [reviewing court should apply abuse of discretion standard].)
Respondent does not argue that mother failed to carry her burden of proof as to the exception's first prong: that she maintained regular visitation and contact with C.S., Jr. (§ 366.26, subd. (c)(1)(B)(i).) (AOB 21) We therefore assume, for purposes of discussion, that mother met her burden of proof as to the first prong.
Substantial evidence supports the juvenile court's finding that mother failed to carry her burden of proof as to the exception's second prong: that "the minor would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.]... In order 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.] [¶]... [I]f 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 other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
The juvenile court reasonably concluded that mother had not proved that she occupied a parental role in C.S., Jr.'s life, "resulting in a significant, positive emotional attachment" of C.S., Jr. to mother, so that he would suffer great detriment if her parental rights were terminated. (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) As explained above in part I, the record does not support the existence of a strong bond between mother and C.S., Jr. which, if broken, would have harmful consequences to him. " 'As in almost every dependency case involving substance abuse, [mother] waited far too long to take the necessary steps towards recovery.' [Citation.]" (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)
Disposition
The order denying mother's section 388 petition and the order terminating her parental rights are affirmed.
We concur: COFFEE, J., PERREN, J.