Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD16775, JD16776
Mihara, Acting P.J.
Appellant Laura R. appeals from the juvenile court’s denial of her Welfare and Institutions Code section 388 petition and termination of her parental rights to four-year-old Delilah R. and three-year-old I.R. Laura contends that the juvenile court abused its discretion in denying her section 388 petition because it gave inadequate consideration to her efforts to become a fit parent and concentrated solely on the strength of the children’s bond to their relative caretaker. We find no abuse of discretion and affirm the juvenile court’s orders.
Subsequent statutory references are to the Welfare and Institutions Code.
I. Background
John R. and Laura are the parents of Delilah and I. John and Laura both have significant criminal and substance abuse histories. The children have not been in Laura’s custody since December 2004. Instead, the children have been cared for by John and by various maternal and paternal relatives. By May 2005, John had given custody of the children to their paternal great grandmother, Maryellen M. In May 2005, Delilah returned from visiting Laura with a bite mark on her arm that Delilah attributed to Laura biting her. On January 20, 2006, John executed a notarized document consenting to Maryellen taking “temporary legal guardianship” of Delilah and I. “during the time I am attending the program of rehabilitation.” The children had become “very bonded with” Maryellen.
On January 24, 2006, Laura, John and Maryellen were involved in an altercation when Laura attempted to take custody of the children. Laura allegedly attacked John as he held one of the children in his arms, and then Laura grabbed Delilah and ran down the street with Delilah in her arms. Delilah was “very upset by the incident.”
On January 26, 2006, Maryellen left the children in her car for a few minutes while she went into a store. Laura took the children from Maryellen’s car, put them in another car and took them away. Maryellen contacted the police, and the police had to chase after Laura and the children in order to detain them. Laura told the police that she had been awarded custody of the children in August 2004, but no documentation could be found to support her claim.
Delilah and I. were detained and placed in foster care. Petitions were filed alleging that the children came within the jurisdiction of the juvenile court under section 300, subdivision (b). In March 2006, the court took jurisdiction over the children, removed them from parental custody, placed them in foster care and ordered reunification services for both John and Laura.
John appealed, and this court affirmed the juvenile court’s orders.
Laura’s reunification plan required her to attend parent orientation classes, complete a parenting class, have a substance abuse assessment, participate in substance abuse testing and counseling, and have weekly supervised visits with the children. Although Laura completed a substance abuse assessment in May 2006 and began parenting classes, she did not complete the parenting classes or fulfill any other part of her case plan. Her visits with the children were inconsistent. She began visiting the children in February 2006, but after four visits she failed to show for the next two scheduled visits. She visited with the children once in April 2006 and once in May 2006. Laura failed to appear for four scheduled visits in June 2006. In June 2006, Laura told the social worker that the supervised visits at Clover House were unacceptable to her and the visit supervisor was rude to her. She declined the social worker’s offer to find a different visit supervisor and said she “did not want to visit.” Laura ceased visiting the children and did not even ask the social worker about their welfare prior to the September 2006 six-month review hearing.
While the children were in foster care, Delilah frequently asked for her “Nanna,” whom she identified as Maryellen M. The children were placed with Maryellen in May 2006, and Maryellen expressed a willingness to adopt the children. The children were happy living with Maryellen.
In early August 2006, in advance of the six-month review hearing, the Santa Clara County Department of Family and Children’s Services (the Department) notified Laura that it would be asking the court to terminate reunification services and set a section 366.26 hearing. Laura told the social worker that she was not going to complete her case plan because the children “were wrongly removed” from her care.
In mid-August 2006, Laura began drug testing. On September 11, 2006, Laura was placed on Proposition 36 probation for narcotics offenses. Her probation conditions required her to participate in a substance abuse program, attend NA/AA meetings, and submit to drug testing.
The contested six-month review hearing was held on September 20, 2006. The court terminated reunification services and set a section 366.26 hearing for January 17, 2007. Visitation was reduced to twice a month. In early October 2006, the Department notified Laura that it would be asking the court to terminate parental rights and free the children for adoption at the January 2007 hearing.
Laura resumed visits with the children on November 17, 2006, after a lapse of nearly six months. Laura was very late for a second November 2006 visit, and it was cancelled. Although she asked the social worker to schedule an additional Christmas visit, and one was scheduled for December 21, 2006, Laura later cancelled that visit and her second scheduled December visit because she would be going out of town. During a February 3, 2007 visit, Laura asked Delilah if she wanted to live with her, and Delilah said “no” and stated that she loved Maryellen.
On January 17, 2007, the section 366.26 hearing was continued to February 14, 2007, for a contested hearing. On February 13, 2007, Laura filed a section 388 petition. Her petition asked the court to reinstate reunification services or, alternatively, return the children to her with family maintenance services. The court ordered that the petition be heard on the same date as the section 366.26 hearing.
Laura’s section 388 petition was supported by evidence that she was working on her substance abuse problems. She had been participating in an outpatient substance abuse treatment program since September 20, 2006. She had been attending twice-a-week group sessions and other drug treatment classes as part of this program. She had attended 110 NA/AA meetings, obtained an NA sponsor and was meeting with her sponsor weekly. Laura had been participating in random drug testing twice a month “through her court ordered Proposition 36 program,” and all of her tests had been negative. Laura was in compliance with the conditions of her Proposition 36 probation. Laura had also completed a 12-week parenting class on January 11, 2007. She was living with her mother and stepfather in a three-bedroom apartment that could accommodate the children, and she had a job.
At the February 14, 2007 hearing on her petition, Laura testified that she had not initially participated in her case plan because “[m]y depression got ahold of me.” Laura admitted that her substance abuse had caused her to neglect her children. She acknowledged that she was at the beginning of her recovery, had “a ways to go” yet, and was only on the second step of her 12-step program. Laura admitted that her “drug of choice” was methamphetamine, but she claimed that she had been “clean and sober” since December 2005. Laura testified that she could not recall telling the person who did her drug assessment that she had last used drugs in May 2006.
Laura testified that she had not visited the children during the holidays in December 2006 because it was “more important” for her to go see her father in New Mexico then. Laura asserted that additional reunification services should be provided to her because “I could provide for my children the same way that [Maryellen] could.” “[T]hose are my children, and I had my children to create a family for me.” “I believe I can care for them better.”
The court denied the section 388 petition. The court explained that it had “read everything that’s submitted actually several times and I thought about this case.” What the court found lacking was evidence that “it would be in the best interests of these children” to offer additional services to Laura. The court noted that Laura was “a young mother who’s got a methamphetamine problem,” which was “a common and extremely difficult situation.” Although the court acknowledged that Laura had made “real efforts,” it believed that these efforts were “a little bit too late.”
“I am particularly concerned about the inconsistent visitation.” The court found Laura’s failure to visit with the children over the holidays “very problematic.” The court also thought it was “inappropriate” for Laura to ask Delilah, age four, who she wanted to live with. Pointing out that it was also obligated to weigh “the relative strength of the parent/child and the child/caretaker bonds,” the court highlighted the fact that “[t]hese children have not been with mother since December of ‘04” which was “a very long time” ago. The court concluded that the children’s “primary bonding today is with their caretakers.” “And so the bottom line is that for the last two years these kids have really been taken care of and have grown comfortable with and have bonded with someone else. And I just don’t think it would be in their best interests to essentially roll the dice today and take a chance.”
The court proceeded to hold the section 366.26 hearing. It terminated parental rights and selected adoption as the permanent plan. On February 26, 2007, Laura filed a timely notice of appeal from the court’s order terminating parental rights. On April 16, 2007, Laura filed a timely amended notice of appeal specifying that she was appealing from both the denial of her section 388 petition and the termination of her parental rights.
We hereby augment the record to include the amended notice of appeal.
II. Analysis
Laura’s sole contention on appeal is that the juvenile court abused its discretion by basing its denial of her section 388 petition “solely on the bond with the caretakers.” She does not claim that the juvenile court was required to grant her petition. Instead, she seeks a remand for the juvenile court to reconsider her petition under the appropriate standards. Because we find that the record does not support her contention that the juvenile court failed to consider the proper factors in denying her petition, we reject her contention.
Once a section 366.26 hearing has been set, the child’s need for stability and permanency is supreme and outweighs the parent’s interest in reunification. At that point, the parent can succeed on a section 388 petition only by overcoming the rebuttable presumption in favor of continued foster care and proving that, due to changed circumstances, reunification is in the child’s best interest. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) A juvenile court’s denial of a section 388 petition is a reversible abuse of discretion only if the court’s ruling is “an arbitrary, capricious, or patently absurd determination.” (Stephanie M., at p. 318, quotation marks omitted.)
As Laura acknowledges, the proper factors for a juvenile court to consider in deciding whether to grant a section 388 petition 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.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 (Kimberly F.).)
Laura is simply wrong in arguing that the juvenile court based its decision “solely on the bond with the caretakers” rather than on the appropriate factors. The juvenile court’s oral explanation of its ruling addressed all of the requisite factors and was properly based on these factors.
The first and third Kimberly F. factors focus on the nature of the parent’s problem, the efforts made to address it, and the likelihood that these efforts will be successful. The juvenile court’s explanation for its decision began with its identification of Laura’s “methamphetamine problem” as an “extremely difficult” problem to address. It was undisputed that Laura’s substance abuse had led her to neglect her children, thereby leading to the dependency. The court’s statement evidenced its consideration of the nature of Laura’s problem and the difficulty in ameliorating such a problem. The court went on to highlight Laura’s attempts to address this problem, and it took account of those efforts, while noting the belated nature of her efforts. The undisputed fact that Laura had been involved in the recovery process for less than six months, and had progressed only to the second of twelve steps, supported the court’s conclusion that Laura’s recovery would be a long and uncertain process.
The juvenile court also expressly addressed the second Kimberly F. factor, “the relative strength of the parent/child and the child/caretaker bonds.” The court found that the children’s bond with Laura was minimal because she had not had custody of the children for over two years and had failed to visit the children regularly during the dependency. In contrast to Laura’s weak bond with the children, the children were strongly bonded to Maryellen, who had cared for the children for a substantial portion of their lives.
Since the juvenile court considered all of the appropriate factors, and those factors supported its decision to deny the petition, we reject Laura’s contention that a remand is required.
III. Disposition
The juvenile court’s orders are affirmed.
WE CONCUR: McAdams, J., Duffy, J.