Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County Super. Ct. Nos. JD115335, JD115336, JD115337, JD115338, JD117672. Peter A. Warmerdam, Referee.
Law Offices of John L. Dodd and Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Mark L. Nations, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, A.P.J., Dawson, J., and Kane, J.
C.A. (mother) appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to her five children. She contends the court erroneously denied her petitions under section 388 to regain custody subject to family maintenance services. She also contends the court should have found termination would be detrimental to the children. For the first time on appeal, she claims termination would substantially interfere with the children’s sibling relationship. On review, we disagree with mother’s claims and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
The underlying dependency proceedings commenced in the summer of 2007. At the time, mother lived with her two school-age daughters from previous relationships, her husband (father), and the couple’s two daughters who were then one and two years of age. The children were at a substantial risk of suffering serious harm or illness due to: mother’s use of illegal controlled substances; the parents’ leaving the children on numerous occasions without supervision; domestic violence perpetrated by father, who had an extensive history of domestic violence; and mother’s inability to protect the children from that domestic violence. The Kern County Superior Court exercised its dependency jurisdiction over the children based on these circumstances.
In October 2007, the court adjudged the children juvenile dependents and removed them from parental custody. The court also ordered an array of reunification services for the parents.
Over the following six months, the parents made such progress that the court found the children’s out-of-home placement was no longer necessary. In April 2008, the court ordered the children’s return home with family maintenance services. Among other requirements, the parents were to complete previously ordered counseling and submit to random drug testing.
Two days after the April 2008 review hearing, mother gave birth to a son. He was not detained. The court, however, did adjudge the newborn a dependent child and left him in the parents’ custody subject to family maintenance services.
In the ensuing months, first father and then mother began missing some drug tests. In July 2008, both submitted samples that were suspicious for illegal controlled substances. The following month, mother first tested positive for methamphetamine at a strong level and later still failed to test. She also admitted to using methamphetamine when the couple’s three young children were present. Mother agreed to enter a drug treatment center in September 2008 but left the program two days later.
In addition, mother had been receiving mental health services for manic depression and was to take prescribed medications for her condition. She, however, was inconsistent with both her medication and counseling. She was depressed and felt overwhelmed as well as tired all the time. She relied to some degree on her eldest child to provide care for the other children. Mother also stated she suffered from paranoia and sometimes saw things that might not exist.
The eldest child in the meanwhile suffered from her own mental health problem, which required daily medication. In September 2008, father went out of town and left all five children for the paternal grandmother to provide care. Neither parent informed the grandmother of the eldest child’s required daily medication as well as a scheduled mental health appointment she had.
Consequently, respondent Kern County Department of Human Services (department) detained all five children in September 2008 and filed both a subsequent and a supplemental petition (§§ 342 & 387) in each child’s case based on the foregoing facts. The court authorized the detention and ordered the department to provide the parents reunification services as soon as possible.
Mother’s two eldest daughters were placed in the home of a relative with whom they continue to live. The three younger children were placed in a separate foster home where they also continue to live.
The court found the subsequent and supplemental petitions (§§ 342 & 387) true in November 2008. In December 2008, the court ordered all five children’s removal from parental custody. The court terminated reunification efforts as to the four older children since at that point the parents had received 12 months of services (§ 361.5, subd. (a)(1)). It also denied reunification services as to the youngest child due to the parents’ failure to reunify or subsequently make any reasonable effort as to the older children (§ 361.5, subd. (b)(10)).
Since the children’s detention in September, the parents made no progress toward alleviating the causes of the children’s out-of-home care and did not take advantage of offered services. The parents also tested positive for drugs, submitted suspicious samples, or failed to test. Mother reportedly said she and father had given up and did not want to do anything for the department. Father did not visit the children and although mother did attend some visits, she interacted primarily with her son leaving the girls to visit among themselves. By the time of the December hearing, the department did not know the parents’ whereabouts. Neither parent attended the dispositional hearing although each had been properly noticed.
Having terminated reunification services, the court also set a section 366.26 hearing to select and implement a permanent plan for each child. The hearing, although set for April 2009, did not occur until August 2009.
In the interim, the department reported each of the children was likely to be adopted and recommended the court terminate parental rights. Their respective caregivers were committed to adopting the children. Because the children’s adoptability is undisputed on appeal, we do not summarize the supporting evidence here.
Shortly before the section 366.26 hearing, first counsel for mother and then counsel for father filed petitions (§ 388) for the parents to regain custody of the children subject to family maintenance services. Mother’s attorney alleged mother: could provide safe and appropriate housing; was attending substance abuse counseling; had been drug testing clean; and was compliant with her mental health directives. Allegedly she also visited regularly and maintained a strong bond with the children. No documentary proof was submitted with the attorney’s petitions. Father’s attorney alleged father: had safe and appropriate housing; had completed domestic violence counseling; had visited with the children; and remained drug free. Father’s attorney also did not submit any documentary proof in support of the petitions. The court set both petitions for hearing in combination with the section 366.26 hearing.
The department responded to the section 388 petitions with a supplemental report. The department confirmed: the parents shared a neat and orderly two-bedroom apartment; mother was currently attending substance abuse counseling as well as NA/AA meetings; she had been involved in mental health counseling; and she submitted to random drug tests and tested negative for drugs, except for methadone which was part of her drug treatment. Mother was making progress in her substance abuse treatment program. She enrolled in the program mid-June 2009 and was scheduled to complete it in January 2010.
By contrast, father was not submitting to random drug tests as the couple’s funds were limited. He did have one negative drug test from May 2009. There was no indication however that it was a random drug test. Father also had a April 2009 certificate of completion for participating in a 52-week domestic violence program.
After not visiting with the children since the latter part of 2008, the parents began attending visits once again in February 2009. The visits, which occurred every other week for one hour, were overall pleasant experiences for the children.
Last, the department reported, father was arrested in May 2009. He subsequently pled no contest to driving under the influence (DUI) of alcohol, hit and run resulting in property damage, driving while his license was suspended or revoked, and possession of controlled substance paraphernalia. At the same time, he admitted having a prior DUI conviction within the preceding 10 years. He was sentenced to three years’ probation and 60 days in custody in July 2009. A warrant for his arrest was also issued days later. He was in custody as of the hearing in the children’s dependencies.
At the combined hearing in August 2009, mother testified on her own behalf. She described enjoyable visits with the children as well as her participation in drug treatment. She had been sober since March 2009 and was actually attending two drug programs. One she had attended for five months and the other for less time. She would complete one program maybe in late September and the other in January of the following year. Both required random drug testing, one monthly and the other weekly.
According to mother, she did not recently struggle with her mental health. She claimed her doctor told her the day before the hearing that she did not need any medication. She felt “really stable.” In addition, going through substance abuse treatment was different this time because she “really want[ed] to change.” She told father once he was released he “need[ed] to do substance abuse [treatment].” She did not want him back in the home until he did so and was “really trying.”
She testified if the children were adopted, she would have contact with her two eldest children, but not the younger ones. According to mother, all the children were very close. She wanted to have all the children returned to her, although she was open to her eldest child staying where she was. That daughter, now a teenager, was getting straight A’s and setting high goals.
Mother believed it would be better for the children to live with her because she was their mother and they were very close to her. She wanted to be the one to raise them as well as teach them values and how to be a better person.
Father’s attorney had no evidence to present.
The attorneys for both the two eldest children and the younger three asked the court to deny the parents’ petitions.
The court denied the petitions. Father’s case was clear. Mother was certainly in a better position but she had not met her burden. Her circumstances were changing at best. Also, the court could not find that a return to parental custody was in the children’s best interests.
The court next granted de facto parent status to the foster parents of the three younger children. Moving on to the section 366.26 portion of the hearing, counsel had no additional evidence to introduce.
During closing arguments, mother’s attorney stated her understanding that the children had arrangements made so that the older girls could see the younger children. The attorney asked the court not to terminate parental rights so that mother could have continued contact with all the children in light of the close bond she shared with the children.
Counsel for the older children advised the court she had discussed with them their desires. They wished to be adopted and to see their younger siblings adopted. They would like to maintain some contact with the younger children. It was counsel’s understanding that the foster parents and the relatives had made arrangements for that. Everyone seemed to be acting in good faith. Alternatively, even if the older children could no longer have contact with the younger children, the older children still wish to see their siblings adopted. Counsel also did not believe the relationship her clients had with the parents outweighed the permanency that adoption offered them.
Counsel for the younger children supported termination. The court invited the defacto parents for the younger children to address the court about their desires or intent. The defacto mother stated she planned to keep contact with the siblings. Because of research she had done, she found the sibling bond was of utmost importance to the children’s development in situations where the family was separated.
The court could not find that the children would so benefit from continuing the parent/child relationship such that it would outweigh the benefits and stability that came from adoption. Having found by clear and convincing evidence that the children were likely to be adopted, the court terminated parental rights.
DISCUSSION
I. Section 388 Petitions
As previously noted, mother contends the court erred by denying her petitions to regain custody of the children at the permanency planning phase. Having reviewed the record as summarized above, we are not persuaded by her argument.
A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (b); Cal. Rules of Court, rule 5.570 [formerly 1432(c)].)
Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 (Stephanie M.).) 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. (Id. at p. 319.)
Mother’s circumstances were, as the court pointed out, at best changing. She was making progress toward living a drug-free life. However, she had been in this situation before only to fail once the children were returned to her custody. Her history of rehabilitation and relapse undermined her recent accomplishments and supported the court’s determination.
In addition, missing from mother’s showing was how return of custody would promote the children’s fundamental interest in permanence and stability. As the California Supreme Court explained in Stephanie M., by the time a child’s dependency has reached the permanency planning stage, a parent’s interest in the care, custody, and companionship of the child is no longer paramount. Rather, the focus shifts to the child’s needs for permanency and stability, and, in fact, there is a rebuttable presumption that continued out-of-home care is in the best interests of the child. A court hearing a modification petition at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.)
We conclude therefore that the court did not abuse its discretion by denying the mother’s modification petitions.
II. Sibling Relationship
As summarized above, mother urged the trial court to find termination would be detrimental to her children on grounds they would benefit from a continuing relationship with her. Now, for the first time, she contends the court should have found termination would be detrimental to the children because it would substantially interfere with the children’s sibling relationship (§ 366.26, subd. (c)(1)(D)). We disagree.
Provided a dependent child is likely to be adopted, the statutory presumption at the permanency planning stage is that termination is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); see also In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) Although section 366.26, subdivision (c)(1) acknowledges that termination is detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (Ibid.; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is up to a parent or other party to prove that termination would be detrimental. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1343.)
Here, mother is in no position to complain about the court’s decision in view of the fact she never asked the court to so exercise its discretion. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.) Neither parent nor the children raised the sibling relationship exception as a ground for the court to find termination would be detrimental to the children. When the law does not require the juvenile court to act in a certain way, the parent bears the responsibility to care for his or her own interests by asking the court to exercise its discretion in a manner favorable to the parent. We will not permit a silent parent to argue that the juvenile court erred in not being psychic. (Ibid.)
In addition, the statutory exceptions merely permit the court, in exceptional circumstances, to exercise its discretion and choose an option other than the norm, which remains adoption. (In re Celine R. ((2003) 31 Cal.4th 45, 53.) However, the record, as summarized above, does not rise to the level of exceptional circumstances so as to compel the court to find termination would be detrimental to the children. (In re Celine R., supra, 31 Cal.4th at p. 53.)
We also observe that mother complains about any consideration the court gave to the remarks made by counsel for the older children. According to mother, an attorney’s argument does not constitute evidence. Mother is correct when she argues the unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11.) However, she overlooks the mandate of section 317, subdivision (e). Section 317, which addresses the responsibilities of court-appointed counsel in dependency proceedings, provides in relevant part as follows.
“In any case in which the child is four years of age or older, counsel shall interview the child to determine the child’s wishes and to assess the child’s well-being, and shall advise the court of the child’s wishes.” (§ 317, subd. (e).)
In this case, counsel for the older children was merely complying with this legislative mandate.
DISPOSITION
The orders terminating parental rights are affirmed.