Opinion
B167227.
10-28-2003
In re DEVIN M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TAMMY M. et al., Defendants and Appellants.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant Tammy M. Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Darryl M. Lloyd W. Pellman, County Counsel, Sterling Honea, Principal Deputy County Counsel, for Plaintiff and Respondent.
Tammy M. (Mother) and Darryl M. (Father) appeal from a juvenile court order terminating their parental rights to their twin daughters Devin and Kayla.[] Father also challenges the denial of his petition for a modification seeking the reinstatement of reunification services. We conclude that the juvenile courts ruling on the modification petition was not an abuse of discretion and that the order terminating parental rights is supported by substantial evidence.
Mother and Father have different surnames. Both parents produced older children in prior relationships.
FACTS
Mother has a history of involvement with the juvenile dependency system. Since 1987, she has lost custody of four children due to alarming reports of neglect and severe physical, emotional and sexual abuse. As described by the Nevada Division of Child and Family Services, the sexual abuse inflicted on two of Mothers children is "astonishing for its morbidity."
For his part, Father has a teenaged son (also named Darryl) who has been in the custody of respondent Department of Children and Family Services (DCFS) since 2001, as a result of Fathers incarceration for drug dealing. Father began using marijuana when he was 15 years old. Young Darryl witnessed Father and Mother smoking marijuana.
Kayla and Devin were born in November 2000. DCFS received a call to its hotline in April 2001 warning of Mothers neglect of Darryl (who is not related to Mother but was in her custody during Fathers incarceration), and her neglect of Kayla and Devin, who were not properly fed. In October 2001, DCFS detained Kayla and Devin and filed a dependency petition largely based on Mothers history of child neglect and abuse, and her failure to reunify with her older children. The petition also alleges that appellants abuse drugs. Appellants denied the allegations in the petition. The juvenile court found a prima facie case for detaining the children.
In late 2001, DCFS interviewed appellants and other concerned parties. Mother claimed unawareness that her older children were sexually abused by her male friends, but admitted that she "messed up" with her older children because she was using crystal "meth." She denied engaging in satanic rituals with her children. She agreed that she and Father abused "speed" and marijuana in the past. She asserted that she no longer uses drugs.
During his interview, Father denied awareness of any sexual abuse that occurred in Nevada, before he met Mother, and indicated that he would protect Devin and Kayla from any such abuse. Father denied using any drug other than marijuana. Father also denied that he neglected his son, noting that he was incarcerated for drug dealing and was unable to take care of Darryl.
A Nevada social worker expressed grave concern regarding Mothers ability to parent, given Mothers history of allowing her older children to be sexually abused. One of Mothers children is in a mental facility in Nevada because he obsessively re-enacts with other children the depraved sexual behavior he learned at home. Mothers older children fear for Kayla and Devins safety if Mother is given custody.
Mother and Father participated in weekly monitored visitation with the children and generally acted appropriately during the visits. Father attended drug counseling, but failed to show up for five drug tests in October and November 2001. He tested negative on six occasions in November and December 2001. Mother had not yet started drug counseling or parenting. DCFS recommended that Mother be denied reunification services because she failed to reunify with her older children and has a history of child neglect.
In February and April 2002, DCFS reported that Mother was attending parenting classes and individual counseling, and was waiting to begin a program of sexual abuse awareness counseling. She consistently tested negative for drugs. Father continued to attend a substance abuse treatment program, and received group and individual counseling. Other than two positive tests (stemming from his use of a prescribed medication), Fathers drug tests from November 2001 until the end of March 2002 were all negative. Genetic testing revealed a probability of over 99 percent that Father is the biological parent of Kayla and Devin.
Mother and Father consistently participated in weekly visitation and the children appeared to be comfortable with their parents, though Father often made inappropriate comments in the childrens presence. The children did not experience separation anxiety at the end of the parental visits, nor were they anxious when separated from their foster caregivers.
Following a mediation, the court sustained six counts alleged in the petition on April 22, 2002. The sustained counts state: Mother has a history of marijuana use that periodically renders her incapable of caring for her children and places her childrens physical and emotional health and safety at risk; Father has a history of marijuana use that resulted in his sons dependency case and poses risks to his childrens physical health and safety; the childrens siblings were repeatedly sexually abused and Mother failed to protect those children, which places Devin and Kayla at substantial risk of harm and similar abuse; and Mother failed to comply with court orders in prior dependency proceedings and her parental rights to four children were terminated. Father was accorded reasonable, unmonitored visitation and was ordered to continue with parenting education, as well as drug counseling and testing. A contested disposition hearing was set to determine whether appellants should receive reunification services.
In May 2002, DCFS reported that Father fully complied with the case plan in the parallel dependency proceeding involving his son, but Darryl resisted being returned to Fathers care as he felt his needs were better met in a group home. Father continued to test negative for drugs and completed a substance abuse program. Mother failed to take a drug test in early May and one week later tested positive for marijuana. Mother and Father consistently visited Kayla and Devin and were affectionate with the children. Mother completed a parenting class but had not begun sexual abuse awareness counseling.
At the contested disposition hearing on May 22, 2002, Mother testified that she has lived with Father for over two years and they plan to stay together. They visit Kayla and Devin every week for two hours. Mother conceded that she lost her parental rights to four children in the court system; she voluntarily gave up a fifth child to adoption. She denied drug use. The court declared the twins to be dependents of the juvenile court and found that they could not presently be released to either parent. Father was accorded reunification services and unmonitored visitation; Mother was denied reunification services but allowed to have monitored visits.
Mother requested a rehearing on the issue of reunification services. On rehearing in August 2002, Mother testified that she attended sexual abuse awareness therapy in Nevada. Though ordered to take a similar program in California, Mother failed to enroll; however, she believes she is now able to cope with the threat of sexual abuse and will no longer use drugs. The court concluded that Mother has a history of involvement with predatory men, but has thus far failed to address the reasons she is attracted to such men. As a result, Mother is unable to protect her children from abuse. The court denied reunification services to Mother because she failed to reunify with her older children and has not made reasonable efforts to treat the problems that led to the loss of her older children.
In August 2002, DCFS reported that Father tested positive for marijuana on seven occasions in June and July 2002 and failed to submit to an eighth test. Mother tested positive for marijuana on three dates in July 2002. The parents continued their weekly visitations with the twins and asked appropriate questions regarding the care provided by the foster family. Father allowed the children to wander away during visits and relied on Mother to supervise the children. The girls are attached to Mother and are excited when Mother arrives, clinging to her during visits and calling her "mommy."
At the hearing on August 21, 2002, the court terminated reunification services for Father as a result of his resumed drug use, and set a selection and implementation hearing. In December 2002, Father petitioned for a modification, asserting that he has tested negative for drugs at least 10 times since his last positive test; that he visits regularly with his daughters; that he completed a parenting course; and that he has re-enrolled in a substance abuse program. Father admitted that he made "a big mistake in smoking marijuana back in July after having been clean for over a year." Father sought to set aside the order terminating reunification services. DCFS reported in December 2002 that the twins were moved to a new foster family. Father and Mother continued to visit the children and interact well with them.
In February 2003, DCFS reported that the twins were doing well in their new placement, where all of their medical, developmental and emotional needs are being met. Father and Mother participated in weekly visitation. Father was in a drug treatment program and had not tested positive since August. Father was unemployed and did not have a stable residence. At a hearing on February 19, 2003, the court found that returning the children to their parents would create a substantial risk of detriment to the physical or emotional well-being of the children. The court also found that there is no substantial probability that the children will be returned to parental custody within the next six months, and that DCFS has made reasonable efforts to reunite the family. The court ordered DCFS to provide permanent placement services.
In April 2003, DCFS reported that the children are thriving in their foster placement, and that the foster family wishes to adopt them. The foster father is an administrator at DCFS and the foster mother (who is trained as a school teacher) stays home to raise the couples two sons and Kayla and Devin.
During visits, Father generally talks to the adults who are present. Mother is more engaged with the children. The children have a familiar and trusting relationship with their parents, but do not seek them out for their immediate needs. Father continued to test negative for drugs. Upon learning that the next court hearing would address the termination of parental rights, Father made a "humorous" remark about bringing a weapon to the courtroom, in front of the children. Father was unemployed and did not have a permanent residence. DCFS recommended that parental rights be terminated.
The hearing on Fathers request for a modification was conducted in May 2003. The social worker testified that Father is presently testing negative for drugs, has completed a parenting program, and visits the children regularly. Nevertheless, DCFS seeks to terminate Fathers parental rights because he has not taken responsibility for the reason the children became dependents of the court, and instead blames DCFS, and because he continues to have a relationship with Mother. The social worker is concerned about Fathers ability to maintain sobriety, even if he completes his current drug abuse program, and his failure to have a stable residence or employment. In addition, Father failed to reunify with his son Darryl.
Father testified that he is angry that his children are in the dependency system. He accepts responsibility that his incarceration and drug use led to the detention of his children. He has nearly completed a drug abuse program, and attends narcotics anonymous meetings three times per week. His efforts to comply with the dependency court case plan necessitates significant class time and drug testing appearances, which have prevented him from securing employment and permanent housing. His inability to gain employment and housing prevented him from reunifying with his son. Father never misses his visits with his children, who recognize him as their father. He does not live with Mother, but feels it is unfair that Mother could not have contact with the girls if Father received custody, because Mother has always taken good care of the children.
The court denied Fathers petition for a modification. The court found that Father failed to establish a substantial change in circumstances: the court was unconvinced that Father has left behind his long history of drug abuse, noting that Father has used drugs for some 30 years and relapsed after two drug programs. The court believed that Father continues to have a close relationship with Mother, which is troubling given Mothers history of losing her parental rights. The court also found that Father failed to establish that the modification would be in the best interests of the children. Father could not show how he would be able to take care of his children without having a job or a place to live.
Shortly after denying Fathers petition for a modification, the court conducted a contested permanency placement hearing. The social worker and an investigator who specializes in child development testified that Mother regularly visits Kayla and Devin, who are familiar with Mother, and Mother interacts appropriately with them. They refer to her as "mommy." By the same token, the children more often seek comfort and affection from the visitation monitor and the foster mother during parental visits. The children are not distressed when leaving at the end of visits; there is no separation anxiety. The social worker believes that the children are adoptable.
The children are less engaged with Father than they are with Mother. They refer to him as "daddy" and are attached to him. The social worker who usually monitors visits reported that the parents are not making much progress in developing a close parental relationship, and that the children are developing a bond with the foster mother. Moreover, the children appeared to be intimidated by Father. Mother is the person who takes care of the childrens basic needs during visits.
Father testified that he tries to speak briefly to the caseworker during the visits to find out more information about the case or to ask for unmonitored visitation rights. Though Father conceded that the children refer to the foster mother as "mommy" because she is the person with whom they live, he maintains that the girls recognize the biological parents as their true parents. Father did not ask DCFS to allow him more daily involvement in parenting duties, such as diaper changing or potty-training. He feels the relationship between him and his daughters has been laid out and limited by the court and DCFS. He missed only a few visits, when he was trying to find employment. He has had 94 visits with the children.
The foster mother testified that the children refer to her and her husband as "mommy" and "daddy." The children do not ask for their biological parents, but experience separation anxiety and cry when foster family members leave the house. The two boys (ages five and seven) treat the girls affectionately and try to look after them. The girls like to cuddle with the foster parents.
The foster mother monitors the parental visits every other week. When getting ready for the visits, the girls express pleasure that they will see the two social worker monitors, but they are also excited once they see Mother. The girls call out to the foster mother during the visits. They do not cry or ask to stay longer at the end of the visits. The foster mother thinks the children enjoy the parental visits.
On May 16, 2003, after thoroughly reviewing the evidence, the court found that the relationship between the parents and children is "one of friends that get together, that play together, that have fun together rather than one which is of a parental nature." The court concluded that severing this relationship would not deprive the children of a substantial, positive, emotional attachment such that the children would be greatly harmed. The court also concluded that it would be detrimental to return the children to parental custody and that the children are adoptable. The court terminated parental rights and identified the permanent plan as adoption.
DISCUSSION
1. Denial of Petition for a Modification
Father filed a petition for a modification seeking to have the juvenile court reinstate reunification services. To succeed in changing a prior order, Father must establish by a preponderance of the evidence that (1) there is new evidence or a change of circumstances that requires changing the previous order terminating reunification services, and (2) the proposed change in order promotes the minors best interests. (Welf. & Inst. Code, § 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)[] Once reunification services are terminated and the matter is set for a section 366.26 hearing, the focus shifts to the childs need for permanency and stability, and the burden is on the parent to revive the reunification issue by way of a petition for a modification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67, 71-72.) The juvenile courts ruling on the modification petition must be upheld on appeal unless there is a clear abuse of discretion. (In re Jasmon O., supra, 8 Cal.4th at p. 415-416.)
All future statutory references are to the Welfare & Institutions Code.
In his petition, Father declared that he has had negative drug tests; attends a substance abuse program; admits his mistake in using drugs in July; visits the children regularly; and asserts that the modification would be in the best interests of the twins, who would benefit from reunification because Father can provide for their needs and give them a loving and safe home. At the hearing on his petition, Father conceded that he does not have a permanent residence.
Father did not convincingly establish that he was committed to a drug-free life. He has an admittedly long history of drug use dating from age 15, though he evidently does not see it as a serious problem.[] He smoked marijuana in front of his son; he was incarcerated for drug dealing; he relapsed midway through the dependency proceeding. When a parent has an extensive history of drug use, and relapses despite participating in treatment programs, the juvenile court may legitimately see a recent period of sobriety as a "changing" circumstance rather than a changed circumstance. (In re Casey D. (1999) 70 Cal.App.4th 38, 48-49.)
In his interview with the caseworker, Father stated, "I dont have a history of substance abuse. I smoked pot!"
Father appears to be more motivated by a desire to placate the court and DCFS than a desire to make a positive change in his lifestyle. To make matters worse, an inference may be drawn that Father exerted a negative influence on Mother, who relapsed into drug use at the same time as Father. In short, where a recent period of sobriety is counter-balanced by nearly a lifetime of parental drug addiction, and there is no evidence that the parent has a housing situation suitable for a child, the court may properly find that there is no change in circumstances sufficient to warrant the resumption of reunification services. (In re Angel B. (2002) 97 Cal.App.4th 454, 459, 463 [where parental drug use began at age 13, evidence of a four-month period of sobriety is not compelling]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [fathers seven months of sobriety (and a drug history dating back to college) was "nothing new" given that he could not stay clean even after his children were detained, so "200 days was not enough to reassure the juvenile court that [fathers] most recent relapse would be his last"].)
Father also failed to carry his burden of establishing that a modification would be in the best interests of the children. This element "would necessarily involve eliminating the specific factors that required placement outside the parents home" in the first place, as well as assurances of stability. (In re Angel B., supra, 97 Cal.App.4th at pp. 463-464.) The sustained petition related to Fathers history of drug use, which periodically renders him incapable of caring for his children. As noted above, Father has not succeeded in overcoming his addiction, as evidenced by his drug usage even while he was undergoing random drug testing, results that were sure to come to the attention of the court. There are no assurances of stability inasmuch as Father has been unable to secure employment or a suitable residence for his children.
Though Father loves his children and maintains regular contact with them, he failed to carry his burden of proving changed circumstances and that a modification would be in the best interests of the children. The courts denial of Fathers petition was not an abuse of discretion.
2. Termination of Parental Rights
Father and Mother appeal from the termination of their parental rights. On appeal, we determine if there is any substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court. All conflicts are resolved in favor of the prevailing party and all legitimate inferences are drawn to uphold the lower courts ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
At the selection and implementation hearing, the court must terminate parental rights if the child is adoptable. (§ 366.26, subd. (c)(1).)[] Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) A parent may avoid termination of parental rights by showing that he or she has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The parent carries the burden of showing that the statutory exception applies, and that termination would be detrimental to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 826; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
Appellants do not challenge the juvenile courts finding that Kayla and Devin are adoptable.
The record shows that appellants consistently maintained regular visitation and contact with Kayla and Devin, visiting once per week for two hours. Appellants rarely missed a visit with the children; however, appellants did not seek to spend more time with the girls to perform the day-to-day tasks of parenting nor did they provide financial support and sustenance.
The main problem appellants confront is the second part of the equation, which requires proof of a benefit to the child. The twins were detained in October 2001, 11 months after birth. Mother already had a prominent history of child neglect that led to dependency proceedings for her older children. Father had a lengthy history of drug abuse and a conviction for drug dealing. While Father was incarcerated in 2001, he left Darryl in Mothers care and she failed to get needed medical attention for the boy, continuing her pattern of child neglect. Young Darryl became a dependent of the juvenile court, and refused to be returned to Fathers care. Neither Mother nor Father were reunited with their older children; Mothers parental rights were terminated with respect to four children.
The twins call appellants and their foster parents "mommy and "daddy." However, the girls do not inquire about appellants between visits, and before the visits only express pleasure about seeing the visitation monitors. During visits, they seek affection and comfort from the foster mother and the visitation monitors. They appear to be intimidated by Father. When visits end and appellants depart, the girls do not cry or experience separation anxiety. (See In re Zachary G. (1999) 77 Cal.App.4th 799, 811 [parent maintained regular contact and had a positive relationship with child, but child did not seek out parent for affection and was not upset when parental visit ended].) By contrast, the girls cry and experience anxiety when the foster parents are away.
After reviewing the record, we cannot say that the relationship between appellants and the twins promotes the well-being of the children to such a degree as to outweigh the well-being they would gain in a permanent home with adoptive parents. "[T]he 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 parents rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)
The twins relationship with appellants is not so substantial that they would be greatly harmed if it were severed. A showing that a child would be harmed if deprived of a substantial, positive attachment is difficult to make when, as here, "the parents have . . . [not] advanced beyond supervised visitation." (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Father and Mother both relapsed into drug abuse midway through the dependency process, while they were undergoing drug counseling and testing. Appellants inability to remain drug free prevented them from having unmonitored, weekend or extended visits, let alone custody. A true parental relationship would not require a third party to monitor parent-child visits.
Even frequent and loving contact between parents and children is not sufficient to establish the requisite benefit to the children if appellants do not occupy a parental role and are unable to take custody. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) A relationship that "is pleasant and emotionally significant" is not enough to establish a benefit to the child because "it bears no resemblance to the sort of consistent, daily nurturing that marks a parental relationship." (In re Derek W., supra, 73 Cal.App.4th at p. 827.) As the juvenile court observed, appellants relationship with the children is, at best, that of friends who have a weekly play-date. The twins were so young (11 months) at the time of their detention that they are unlikely to identify appellants as ever having served as their primary caregivers.
The trial courts order terminating parental rights is supported by substantial evidence and must be upheld. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Balancing appellants comfortable and friendly —but not parental— relationship with the twins against the security of a permanent home with the present foster family, it is clear that the legislative preference for adoption applies here. Adoption will provide the twins with permanency, stability and security, and continued foster care or a legal guardianship is not equivalent to the stability of a permanent home. (See In re Lukas B. (2000) 79 Cal.App.4th 1145, 1156; Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 249-251.)
DISPOSITION
The judgment is affirmed.
We concur: NOTT, J., ASHMANN-GERST, J.