Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK21144, Terry T. Truong, Referee. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Senior Associate County Counsel, for Plaintiff and Respondent.
ROTHSCHILD, J.
R.C. (mother) appeals from a juvenile court order terminating her parental rights to six-year-old D.C. (child) under Welfare and Institutions Code section 366.26. (All further statutory references are to this Code.) She maintains that the juvenile court erred in failing to find applicable the beneficial contact exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) Mother also contends the juvenile court abused its discretion when it denied her section 388 modification petition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2004, alerted by information that mother had left her children for several days without provisions and was in jail on theft and drug-related charges, respondent Department of Children and Family Services (DCFS) filed a petition under section 300 on behalf of child (born in February 2002) and her half-siblings. DCFS filed an amended petition the following month. It alleged, in pertinent part, that mother had a 10-year history of drug abuse and was a current user of illicit drugs, that mother and child’s father (who is not a party to this appeal) had engaged in violent confrontations in front of the children, and that mother had thrice committed car theft in one sibling’s presence. (§ 300, subds. (b), (j).) Mother, who had been released from her earlier incarceration, was arrested and incarcerated again two weeks before the uncontested amended petition was sustained on September 30, 2004. The court ordered DCFS to provide mother with referrals for reunification services, including a drug-treatment program, individual counseling (to address drug abuse-related issues and parenting), and parenting and domestic violence programs.
The child’s siblings are not subjects of this appeal.
A DCFS social worker interviewed the three siblings (child was too young). One sibling denied having seen his mother use drugs. Another had never seen mother use drugs, but believed that she did so when she and her friends went into the bathroom. The third sibling had often seen mother use drugs. He recalled having seen her with “a small baggie with rocks in it and she would put the rocks into the pipe and smoke from it. She would act crazy when she would smoke it.” That sibling once broke mother’s pipe in an effort to stop her drug use. He had been present when mother stole cars.
Initially, child was placed in the care of her father and paternal grandmother (grandmother), and her siblings were placed with their father. All the children were soon moved into foster care after DCFS determined that the initial placements were inappropriate. But, by January 2005, child had been returned to grandmother’s home, where she remained at the time of the last hearing.
Meanwhile, mother had been released from custody again, was making progress in a residential drug rehabilitation program and was visiting the children weekly. But, in January 2005, mother abandoned her treatment program and stopped contacting her children. DCFS lost contact with her until May 2005, when it learned she had been arrested and incarcerated for car theft in April. In mid-May, the court terminated mother’s reunification services. The children remained in foster care, and DCFS reported that they seemed happy and were adjusting well. The three siblings lived with a paternal granduncle (uncle), with whom each had a strong bond and who wished to adopt all three children. Grandmother wanted to adopt child, if the family was unable to reunify. In October 2005, the court terminated reunification services for the father of child’s siblings. In December, the court terminated reunification services for child’s father.
In June 2005, mother was released from custody but was jailed again two months later. In December 2005, she was released on parole. The record is not clear as to whether, at least for a short time, she resumed visiting child. In any event, by February 2006, she had stopped contacting or visiting her children.
In May 2006, DCFS reported that the grandmother’s adoptive homestudy was complete, but approval was delayed pending a final judgment in her marital dissolution action. The matter was continued.
As of May 1, 2006, mother had not had any contact with her children for about eight months and her whereabouts remained unknown to DCFS. In May 2006, she was again incarcerated. In October 2006, she was released on parole. She did not contact DCFS until December 2006.
In October 2006, the court terminated parental rights to the three siblings and freed them for adoption by their uncle. The court continued the section 366.26 hearing for child several times pending approval of grandmother’s homestudy.
In March 2007, after grandmother’s homestudy was approved, the court set a section 366.26 selection and implementation hearing for April 26, 2007. In its reports for that hearing, DCFS observed that child was thriving in the loving care of her grandmother, whom she called “mommy” and to whom she was very attached. She told DCFS she was happy and wanted to stay with her grandmother. Child continued visiting her siblings at the uncle’s home once or twice a month.
The court continued the April 26, 2007 section 366.26 hearing several times due to problems related to notice and a congested court calendar. The hearing was not held until early February 2008.
In mid-May 2007, mother was incarcerated again. On October 11, 2007, upon her release from custody, she immediately entered “Prototypes,” a residential drug treatment facility. At her request, she was allowed weekly visits with child at her treatment facility.
On October 19, 2007, mother filed a section 388 petition, requesting reinstatement of reunification services. She claimed her enrollment in Prototypes the week before, her regular drug testing at Prototypes, and her participation in various programs and vocational counseling entitled her to the relief she sought.
In its response to mother’s petition, dated December 20, 2007, DCFS noted that mother had only enrolled in Prototypes very recently and completion of that treatment program could take 6 to 18 months, depending on her progress. DCFS acknowledged that mother was making progress in rehabilitation, having successfully passed four drug tests between October and November 2007. However, mother had only been in her current treatment program for four months by the time DCFS prepared its report. In the past, she had repeatedly failed to complete similar rehabilitation programs or maintain sobriety. DCFS opined that mother needed to maintain sobriety for at least 12 months in order to evidence an adequate degree of stability and changed behavior. DCFS observed that child had basically lived with her grandmother since she was five months old. Until recently, mother’s visitation had been very inconsistent. By the time of the hearing, however, DCFS reported that child and mother were seeing one another every week, and the visits were “positive for both mother and daughter.” Still, DCFS did not believe that mother had formed a parent-child relationship with child, who had just begun to know her. DCFS also reported that child was confused. At times she said that she wanted to live with her mother, and at other times, she said that she wanted to live with her grandmother. Child had formed a very strong bond with her grandmother, whose care was stable and nurturing. DCFS recommended that mother’s petition be denied.
The children had lived with the grandmother long before child was officially placed in her grandmother’s care, sometimes with their mother, and other times – during her repeated incarcerations – without her.
The court set a combined section 388 and permanency planning hearing for February 4, 2008. Mother testified at that hearing, admitting that for 9 to 10 years before 2001, she had used illicit drugs. She claimed to have been drug-free since that time, and also said she had not consumed alcohol since December 2006. Although her visitation had been erratic in the past, mother testified that she had been visiting child for four hours at least once each week since she enrolled in Prototypes, and that their visits had been unmonitored since December 2007. During the visits, they talked about child’s school and interests, drew and did homework, and expressed their love for one another. Mother did not yet want child removed from grandmother’s home because she was not ready to care for child, but she also did not want her parental rights terminated. She wanted an opportunity to establish the mother-daughter relationship that she believed she was capable of having.
Child also testified. She said she had fun with and enjoyed visiting mother, who was good to her, and would like to see her more often, including on overnight visits. She said she would eventually like to live with mother. However, she also said she liked living with grandmother, with whom she had lived a very long time and whom she called “mom” and “mama.” She could not recall ever having lived with mother.
By written order, the court denied the section 388 petition both because mother had not demonstrated “changed,” but merely “changing” circumstances, and because it was not in child’s interest to reinstate reunification services at this late stage. The court also found child adoptable and that mother had failed to establish the applicability of any statutory exception. The court terminated parental rights. This appeal ensued.
DISCUSSION
1. “Changed” versus “changing” circumstances
Mother maintains the juvenile court’s denial of her section 388 petition requesting reinstatement of reunification services was an abuse of judicial discretion because the court misapplied the “‘changing versus changed’ circumstances authorities.” She asserts that she “unambiguously . . . demonstrate[d] changed circumstances, and the trial court erred by characterizing that showing as one of merely ‘changing’ circumstances.” We disagree.
A parent may, on grounds of change of circumstance or new evidence, seek modification of a previous order of the court so as to serve the child’s best interest. (§ 388, subds. (a), (c).) At any time before the section 366.26 hearing, a parent may file a section 388 petition seeking reinstatement of reunification services based on changed circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295, 308-310.) To succeed on the petition, a parent must show, by a preponderance of evidence, that there has been a sufficient change of circumstances to warrant the requested modification, and that the requested change of order is in the child’s best interest. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532-535; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) After termination of reunification services, however, a parent’s interest in the care, custody and companionship of her child is no longer paramount. By this point, the court’s focus has shifted squarely to the child’s need for permanency and stability. Accordingly, the parent’s burden is particularly weighty when the section 388 petition is made on the eve of a section 366.26 permanency-planning hearing, when the children’s interest in stability is the court’s foremost concern and outweighs any interest in reunification. (In re Angel B. (2002) 97 Cal.App.4th 454, 464; see also In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
We reject DCFS’s argument that the juvenile court lacked jurisdiction to consider mother’s petition filed two and one half years after reunification services had been terminated. Prior to termination of parental rights and subject to procedural limits not relevant here, a court order made in a dependency proceeding “may at any time be changed, modified, or set aside, as the judge deems proper . . . .” (§ 385.) Substantive due process requires the state to provide a mechanism by which a parent may seek reunification with her child prior to the section 366.26 hearing. (In re Marilyn H., supra, 5 Cal.4th at pp. 306-308, 309.)
We review the juvenile court’s denial of a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) “We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decisions ‘“exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citations.]’ [Citations.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
As for the issues raised by mother’s petition, In re Casey D., supra, 70 Cal.App.4th 38 is instructive. There, the mother of a dependent child had been drug free about five months by the time the juvenile court denied her section 388 petition. The reviewing court observed that the mother “had an extensive drug history with a tendency to engage in treatment programs when required to do so by outside agencies and then relapse once the requirement was lifted.” (Id. at p. 48.) This case is not dissimilar. Mother admits to having a substance abuse problem since at least 1999. A more accurate description, however, based on the evidence that in 1996 three of her children became juvenile court dependents because of her drug use, is that she had the problem since at least 1996. In addition, although mother testified that she had been drug-free since 2001, and had had no alcohol since December 2006, the court was not required to credit that testimony in light of other, contrary evidence, particularly that she was twice incarcerated in 2004 on drug-related charges. Moreover, the court was justified in doubting that mother would succeed in overcoming her drug addiction. She had already participated in at least four drug treatment programs (at least one of which she completed) prior to her enrollment in Prototypes in October 2007. At the time her petition was heard, mother had been in the Prototypes program a mere four months and completion of that program could take up to 18 months. And, as the trial court observed, no evidence was offered to show that mother was on track to complete the program at the low end of that time range.
The juvenile court did not err in concluding that, as laudable as mother’s progress had been, when balanced against her history of drug abuse and repeated failures in other similar programs to overcome her addiction, it was too early to conclude that she was unlikely to relapse, and an insufficient amount of time had elapsed for her to have demonstrated sufficiently changed circumstances. In short, the court could reasonably infer that mother had not yet resolved the substance abuse problems that formed the primary basis for child’s detention. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months of sobriety was insufficient for a parent to show changed circumstances in light of his long history of drug use including intermittent periods of sobriety]; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [expressing doubt that changed circumstances can ever be shown when a parent “loses custody of a child because of the consumption of illegal drugs and whose compliance with a reunification plan is incomplete during the reunification period”].) In light of mother’s spotty history in drug treatment programs and the very limited period of sobriety preceding the petition, we cannot conclude that the juvenile court abused its discretion in ruling that she fell short of establishing changed circumstances.
2. Best interest component of section 388
Section 388 requires not only a showing of “changed circumstances” but also a showing that the requested order is in a child’s best interests. As discussed above, the trial court did not err in finding insufficiently changed circumstances. Neither did it err in finding that reinstatement of reunification services was not in child’s best interests.
Given child’s almost lifelong residence and strong bond with her grandmother, as well as mother’s history of inconsistent visitation and inability to maintain sobriety for more than a few months, mother did not meet her burden to show that it would be in child’s best interests to reinstate reunification services and further delay implementation of her permanent plan. We find no abuse of discretion. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.)
Mother correctly points out that the court mistakenly concluded she had not addressed the domestic violence issues. Mother completed a domestic violence class, albeit a short one; she was not asked to do more.
3. Beneficial contact exception to termination of parental rights
a. Evidentiary standard
At the final stage of a dependency action, when the permanency planning hearing is held, the juvenile court must determine whether a child is adoptable. If it finds she is, the court must “terminate parental rights and order the child placed for adoption . . . unless . . . the court finds a compelling reason for determining that termination would be detrimental to the child due to” any of several statutory exceptions. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) A parent seeking to avoid adoption must establish, by a preponderance of evidence, that an exception applies. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Mother maintains “the trial court ruled ‘there is insufficient evidence to compel the Court to find that there is a beneficial relationship.” She claims the court applied the wrong burden of proof by requiring her to present “compelling” – rather than merely “substantial” – evidence to establish the beneficial contact exception to termination of parental rights. We disagree. The court’s statement only pointed out that mother had not established the circumstances necessary to warrant a finding of a beneficial parental relationship, a significant departure from the preferred norm of adoption. (In re Celine R. (2003) 31 Cal.4th 45, 49.) Nothing the court said addressed the burden of proof.
There is no dispute that child is likely to be adopted.
b. Beneficial contact exception not established
Mother also asserts that the court erred in failing to find the “beneficial contact” exception applicable. (§ 366.26, subd. (c)(1)(B)(i).) That exception permits a juvenile court to avoid termination of parental rights and to select instead a permanent plan other than adoption, if the parent shows that she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (In re Aaliyah R., supra,136 Cal.App.4th at p. 449, italics omitted; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) We disagree with mother’s contention.
The trial court observed that it “[could] find that [mother had] visited regularly since October 2007 . . . . ” On this record, we believe it would be a significant stretch to find that mother maintained regular visits. Nevertheless, citing In re Brandon C. (1999) 71 Cal.App.4th 1530, mother contends the existence of the beneficial contact exception must be reviewed in the context of the amount of contact she was permitted and says that she had as much contact as possible under the circumstances. In Brandon, the court affirmed an order of guardianship and a finding it would be in the children’s best interest to maintain their relationship with their mother as there was evidence of a close bond between the children and their mother. (Id. at pp. 1534-1538; see also In re Amber M. (2002) 103 Cal.App.4th 681, 689 [reversing an order terminating parental rights for a new section 366.26 hearing based on evidence from a bonding study psychologist, therapists and court-appointed special advocate that there was a beneficial parental relationship].) This record differs.
First, mother did not maintain regular visitation with child or even visit her to the extent her incarcerations permitted. Mother was absent from child’s life for long periods of time during this action, including during periods in which mother was not incarcerated. Indeed, mother’s visits only became consistent in the final four (of 42) months preceding the section 366.26 hearing.
Second, even if it could be said that mother maintained regular visitation, a more fundamental problem lies not with the quantity but with the quality of those visits. Even though the juvenile court found that child viewed mother as more than just a “friendly stranger,” the record shows that mother’s relationship with child was not parental. As much as they enjoyed their time together, mother and child did little more than talk, draw and do homework during visits. The record supports the trial court’s finding that the requisite parent-child relationship, i.e., one that has developed out of “‘day-to-day interaction, companionship, and shared experiences,’” simply did not exist. (In re Casey D., supra,70 Cal.App.4th at pp. 50-51.) In contrast, since child was two years old, it has been grandmother who has played the parental role in her life. She is the person to whom child has consistently turned for care, guidance and comfort. It is a sad but unavoidable fact that mother’s inability to address her substance abuse problem in a timely manner has prevented her relationship with child from becoming parental in nature.
Finally, even if we were to assume that mother established the existence of a parental relationship, she still failed to carry her burden to show, as required for application of the parental relationship exception, that child’s right to a permanent, stable, adoptive home with her grandmother was outweighed by continuing her tenuous relationship with mother. Although there is evidence that child cares for and wants to maintain some relationship with her biological mother, the record supports the court’s conclusion that child would not be “greatly harmed” by severance of the incidental benefit child may gain from continuing that relationship. (In re Autumn H., supra,27 Cal.App.4th at p. 575.) Child has lived with and been cared for by grandmother for at least half of her life. Mother has spent the majority of her daughter’s life in and out of jail and abusing drugs. The juvenile court did not err in concluding mother had failed to establish the applicability of any exception to termination of parental rights and adoption.
DISPOSITION
The order is affirmed.
We concur: MALLANO, P.J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.