Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. SJ11444.
McINTYRE, J.
APPEAL from a judgment of the Superior Court of San Diego County, Joe O. Littlejohn, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Luz L. appeals a judgment of the juvenile court terminating her parental rights to her minor son Damian L. under Welfare and Institutions Code section 366.26. (Statutory references are to the Welfare and Institutions Code.) Luz contends the court erred by denying her section 388 petition for modification seeking to vacate the selection and implementation hearing and have Damian placed with her. She also challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2005 three-month-old Damian became a dependent of the juvenile court and was removed from Luz's custody based on findings Luz abused drugs (§ 300, subd. (b)), and she left Damian without any provision for his support. (§ 300, subd. (g).) Luz had a 10-year history of drug abuse and had used methamphetamine while pregnant with Damian. Although Luz had a voluntary contract with the San Diego County Health and Human Services Agency (Agency) to address her substance abuse and participate in parenting education and therapy, she attended treatment for only four days before testing positive for methamphetamine and drinking rubbing alcohol. Her whereabouts were currently unknown. The court placed Damian in the home of his maternal grandmother, where his sister Brianna lived, and ordered Luz to comply with her case plan.
By the 12-month review hearing, Luz completed an inpatient drug rehabilitation program, remained drug-free and regularly visited Damian. The court placed Damian with Luz on the condition she continue to live with the maternal grandmother. However, two months later, Agency filed a supplemental petition under section 387, alleging Luz relapsed by drinking excessively and having a violent confrontation with the maternal aunt in Damian's presence. This incident resulted in Luz's arrest for domestic violence. Luz was also arrested for buying drugs while on her way to a supervised visit with Damian. The court terminated services and set a section 366.26 selection and implementation hearing.
The social worker observed three visits between Damian and Luz at Las Colinas Detention Facility. During the first visit, Damian cried for the maternal grandmother. At the next visit, Damian warmed up to Luz and was able to play with her. The third visit ended early because Damian was ill and became upset after 15 minutes.
Damian was assessed as generally adoptable and the maternal grandmother wanted to adopt him. Damian's relationship with Luz had deteriorated since her arrest, which occurred in his presence and caused him to become extremely upset and develop behavior problems.
Luz filed a section 388 modification petition, asking the court to vacate the selection and implementation hearing and place Damian with her. She later clarified she wanted to live with Damian in the maternal grandmother's home when she finished KIVA. As changed circumstances, Luz alleged she completed various programs addressing issues such as domestic violence, anger management and parenting. She was currently in KIVA's six to nine-month Drug and Alcohol Treatment Program, and she had learned how to improve herself since services were terminated. She further alleged modification was in Damian's best interests because she and Damian had a loving relationship, and he recognized her as his mother.
According to an addendum report, Luz was attending drug court and had been in KIVA's program for six weeks. She was visiting Damian twice a week. Visits at KIVA supervised by the maternal grandmother went well. Damian was happy to see Luz, whom he called "mamma," and was strongly bonded to Brianna. However, during visits at which the maternal grandmother and Brianna were not present, Damian was "clingy, anxious and tearful." Although Damian's relationship with Luz was improving, Damian looked to the maternal grandmother to meet his needs. The maternal grandmother had been approved to adopt him.
Based on Luz's psychological evaluation, the social worker believed Luz had unresolved issues of anger and domestic violence, and thus, Damian remained at risk of neglect, emotional abuse and exposure to domestic violence if placed with Luz. In the social worker's opinion, the benefits of adoption for Damian far outweighed the benefits of maintaining the parent-child relationship.
After an evidentiary hearing, the court denied Luz's section 388 modification petition. In selecting and implementing a permanent plan, the court found Damian was adoptable and none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.
DISCUSSION
I
Luz contends the court abused its discretion by denying her section 388 modification petition. She asserts she made many changes in her life, including voluntarily participating in KIVA's residential treatment program, having five months of sobriety and completing domestic violence counseling. She further asserts granting the petition was in Damian's best interests because they shared a close and loving relationship.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced
from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.)
B
The evidence showed Luz had not used drugs for five months, had completed an eight-week domestic violence program, had begun therapy, was taking medication for depression and regularly visiting Damian. Her efforts to change her life are commendable. However, Luz's relatively brief period of sobriety following years of substance abuse, her failed rehabilitation and her drug and domestic violence arrests showed she was just beginning to make progress in addressing the problems that led to Damian's dependency. She began her latest effort at drug rehabilitation less than three months earlier and had not yet resumed therapy. In this regard, Luz's circumstances were "changing," but had not "changed." (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [addiction requires much more than 120 days of sobriety to show real reform]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [father's seven months of sobriety insufficient to show changed circumstances in light of his substance abuse history].) A petition like Luz's that alleges changing circumstances does not promote stability for the child or the child's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
C
Even had Luz shown sufficient changed circumstances, she did not show modifying the court's previous order was in Damian's best interests. At the time of the hearing on Luz's modification petition, the focus of the proceedings had shifted from family preservation to providing Damian with a safe, stable and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Despite a one-year period of sobriety, Luz relapsed and had not recently been sober long enough to show she had overcome her drug and alcohol problem. Indeed, she needed to complete six more months of inpatient treatment at KIVA. Although Damian enjoyed visits with Luz, he looked to the maternal grandmother to meet his needs and considered her to be his mother. Contrary to Luz's position, the court properly evaluated all the evidence in light of Damian's need for stability and security, and found Damian's best interests would not be served by placing him with Luz or delaying the selection of a permanent plan for him. The court acted well within its discretion by denying Luz's modification petition.
II
Luz challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts she regularly visited Damian, who shared a close bond with her and would benefit from continuing the relationship.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th at p. 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "'benefit from continuing the relationship'" to refer 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., supra, 27 Cal.App.4th at p. 575.) Thus, "if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a substantial, positive emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
Although Luz regularly visited Damian, she did not meet her burden of showing her relationship with him was sufficiently beneficial to outweigh the benefits of adoption. Damian has lived with the maternal grandmother since he was three weeks old, has always looked to her to meet his needs and considers her to be his mother. At the time of the selection and implementation hearing, Damian's relationship with Luz was improving and he enjoyed visits with her. However, Damian saw Luz as a "friendly visitor" and did not cry when visits ended. There was no evidence of a "substantial, positive emotional attachment" from Damian to Luz such that terminating the parent-child relationship would result in great detriment to Damian. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Rather, the evidence showed Damian's need for stability and permanence through adoption outweighed any interest in preserving parental ties.
Moreover, the court's comment that Damian can have the benefits of adoption while maintaining a relationship with Luz through the maternal grandmother is not substantial evidence Damian and Luz have a beneficial parent-child relationship within the meaning of the statutory exception to adoption. Damian, whose needs Luz cannot meet while she addresses her substance abuse and other issues, deserves to have his custody status promptly resolved and his placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Luz's parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., HALLER, J.