Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK61244. David S. Milton, Judge.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Aida Aslanian, under appointment by the Court of Appeal, for Minors.
DOI TODD, J.
Appellant Christina H. (mother) appeals the juvenile court’s denial of her petition for modification under section 388 of the Welfare and Institutions Code for further reunification services. Although the Los Angeles County Department of Children and Family Services (the department) did not ultimately oppose her petition, minors Elizabeth H. (now age 6) and James H. (now age 3) do so. We find no abuse of discretion in the juvenile court’s denial of the petition and affirm.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
The minors first came to the department’s attention in October 2005 amid reports that mother was abusing drugs and neglecting the minors. Mother, who was then age 21, admitted to “heavy” use of methamphetamines since the age of 13 and to having an alcohol problem. Mother had been arrested the prior month for possession of a controlled substance, bringing narcotics into a jail and for a warrant due to her failure to appear at a criminal court hearing. She was rearrested in October. Both of the minors’ fathers were incarcerated. Elizabeth was first placed with her maternal grandmother, with whom mother had been living, and then with her maternal aunt. James was placed with his paternal grandmother, who had been caring for him on and off since birth.
At the jurisdiction and disposition hearing on January 13, 2006, the court ordered reunification services for mother, including a drug rehabilitation program with random drug testing, parent education and individual counseling. Mother was also given monitored visits, which the department had discretion to liberalize. No reunification services were ordered for fathers.
In its six-month status report in June 2006, the department reported that mother’s whereabouts had been largely unknown for the past six months. On May 23, 2006 mother had enrolled in a residential drug and alcohol treatment program. Since that time mother had one visit with James and no visits with Elizabeth, who was now living with her paternal aunt and uncle in Northern California. Mother had one telephone call with Elizabeth that was terminated by her caretakers who thought mother’s conversation was inappropriate for a five-year-old. The caretakers for both minors were willing to adopt them if mother failed to reunify. The department recommended that mother’s reunification services be terminated. In a supplemental report, the department reported that since enrolling in the drug program mother had attended 108 group meetings, 99 12-step meetings, 18 individual sessions and submitted 10 clean drug tests. Mother missed one test she did not know about. She had been maintaining telephone contact with Elizabeth and visiting James at her treatment facility.
At the contested six-month review hearing on August 7, 2006, mother testified that she was due to complete her drug program in November 2006, at which time she planned to enter a sober living program. She admitted that she did not visit James from October 2005 to June 2006. Her attorney requested that reunification services be extended for six months. Counsel for the department and the minors argued against extending mother’s reunification services. The juvenile court terminated mother’s reunification services, finding that mother had not regularly visited the minors, had not demonstrated the capacity and ability to complete the treatment plan objectives and had not made significant progress in resolving the problems that had led to the minors’ removal from her custody. The court set the matter for a 366.26 hearing.
On October 25, 2006, mother filed a section 388 petition requesting unmonitored visits or possible reunification with the minors. Mother attached numerous documents in support of her petition, including her negative drug test results and positive comments by her program coordinator and other instructors and residents, as well as family members, as to her success in the program and fitness as a parent. The court set the matter for a hearing on December 4, 2006, the same date as the section 366.26 hearing.
Mother filed an earlier section 388 petition seeking “reunification and visitation,” which the juvenile court summarily denied without a hearing. Mother did not appeal this denial.
In preparation for the hearing, the department reported on November 29, 2006 that mother’s visits with James had been inconsistent. Mother had not been able to visit Elizabeth out of the area, but had maintained telephone contact with her. The minors were strongly bonded to their respective caretakers, who were committed to adopting them. The caretakers were not opposed to the minors having future monitored visits with mother if beneficial to the minors. The department recommended that mother’s parental rights be terminated and that adoption be the permanent plan.
On the date of the permanency planning hearing, the department submitted an ex parte application noting that mother had completed her six-month drug rehabilitation program. In an about face, the department now recommended that mother be allowed four hours of unmonitored visits on condition that she continued to submit to random drug testing, participate in her after care program and keep the department apprised of her whereabouts.
The matter was continued to December 12, 2006, at which time the department’s attorney explained that the department’s change of position was due to the fact that different people working on the case had only recently convened and the current consensus was to afford mother additional services. The attorney represented that he had been surprised by the new recommendation. James’s paternal grandmother, who was his full-time caretaker, testified that she was opposed to mother having unmonitored visits with James because he was asthmatic, on daily medication and susceptible to colds. Given that mother was living in a sober living facility with other recovering addicts, the court denied unmonitored visits and again continued the matter to February 13, 2007.
In its February 13, 2007 interim review report, the department reported that mother continued to participate and do well in her drug rehabilitation program at the sober living facility, consistently had negative drug tests with only two missed tests (one explained and one unexplained), and had developed a comprehensive plan for caring for the children if they were returned to her custody, including schools and aftercare programs. The maternal grandmother was willing to provide mother with housing and financial assistance and mother’s family was willing to assist with childcare. The department reported that mother had visited Elizabeth twice in Northern California, once in December and once in January, and maintained consistent telephone contact with her. Mother visited James on a weekly basis. Both minors were receiving good care by their respective caretakers. Elizabeth was in kindergarten and her teacher believed she was doing well academically and socially due to her caretakers’ support. Elizabeth’s uncle volunteered in her classroom. Both caretakers encouraged the children to continue contact with mother and mother’s family, but James’s caretaker expressed concern that mother would not be able to meet his daily medical needs. The social worker recommended that mother be provided with six additional months of reunification services, stating that Elizabeth had an established bond with mother and had expressed a desire to live with mother. Numerous documents were attached to the report, including mother’s negative drug test results, completion certificates for parenting classes and the residential substance abuse program, letters of recommendation from mother’s providers, as well as letters from Elizabeth’s caretakers detailing Elizabeth’s activities, emotional growth and newfound self-confidence, and numerous letters in support of Elizabeth’s caretakers and their dedication to Elizabeth. In supplemental reports, the department noted that the home study of Elizabeth’s caretakers had been approved and that the home study for James’s caretaker was in progress.
At the February 13, 2007 hearing, the attorneys for the minors’ caretakers represented that the caretakers wanted to encourage contact between mother and the children and were committed to maintaining the sibling relationship. But given mother’s nearly 10-year history of drug abuse, they were concerned that mother would relapse or make inappropriate decisions regarding the minors. Elizabeth’s caretaker testified that although Elizabeth had responded affirmatively to the social worker’s direct question of whether she wanted to live with mother, this was an isolated incident and Elizabeth had never expressed such a desire with her prospective adoptive family. Instead, Elizabeth talked happily of her long-term relationship with this family and of her future with them. The parties’ attorneys argued at length, with the department’s attorney arguing in favor of further reunification services and the minors’ attorney arguing in opposition.
The court ultimately found that granting mother further reunification services was not in the minors’ best interest. The court noted that the minors were “on the road to adoption,” that James was only two years old and had lived with his grandmother most of his life and that Elizabeth was five years old and was thriving in her placement. The court also found that granting further reunification services would be potentially disruptive of the minors’ permanency and would cause delay. The court therefore denied mother’s section 388 petition, and continued the section 366.26 hearing. This appeal followed.
DISCUSSION
Section 388Under section 388, a parent may petition the court to change, modify or set aside a previous court order. The parent has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence and the proposed modification is in the child’s best interest. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) “This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been terminated or never ordered.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
“The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O., supra, 8 Cal.4th at p. 415; In re Stephanie M. (1994) 7 Cal.4th 295, 318.) “[‘]“The appropriate test for abuse of discretion is whether the trial court 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.”’” (Id. at pp. 318–319.) Thus, where the trial court has discretionary power to decide an issue, a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Id. at p. 318.) “The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M., supra, 103 Cal.App.4th at pp. 685–686; In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Changed Circumstances
Mother argues that her change of circumstances is reflected by “her compliance with her case plan since May 2006, her progress in maintaining her sobriety, and the letters of endorsement from her program coordinator and counselor substantiating the positive changes [she] had made.” She points out that by the time of the hearing on her petition she had been sober for nine months. The minors counter that mother’s circumstances were only changing and had not changed to the point that she could assume care and custody of the minors. While the minors recognize that mother was not seeking their return, they point out that mother was asking for additional reunification services so that she might be able to reunify with them in the future. Mother admits that had she sought return of the minors the juvenile court may well have been justified in denying her request. But she argues that seeking only further reunification services was appropriate here and should not be held against her.
There is no doubt that mother was making remarkable progress on her road to recovery from a serious, long-term, substance abuse problem, and that she was doing so on her own after her reunification services had been terminated. We certainly commend mother’s progress and efforts. But we are not inclined to find that nine months of sobriety in controlled environments after nine years of a serious substance abuse problem demonstrates changed circumstances. Even if we were to find otherwise, we must still consider whether the proposed modification was in the minors’ best interest.
Minors’ Best Interests
As the parties note, important factors in considering a child’s best interests 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.)
It is undisputed that mother’s drug abuse was a serious, long-standing problem leading to the minors’ dependency. Indeed, the court in In re Kimberly F. doubted that a parent who 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 could ever be entitled to the granting of section 388 petition. (In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.)
It is also undisputed that the minors were strongly bonded to their respective caretakers, they were well integrated into their prospective adoptive families, they were well cared for and they were thriving in their placements. By contrast, the minors were not as strongly attached to mother. Mother admitted that she did not visit James at all from October 2005 through June 2006. Even after mother filed her section 388 petition on October 25, 2006, the department reported on November 29, 2006 that her visits with James were inconsistent. Mother did not start visiting James on a weekly basis until sometime after that. James was ten months old when removed from mother’s custody. By the time of the hearing on mother’s petition, he had been living with his paternal grandmother for approximately 16 months, which was the majority of his life. Elizabeth was four years old when detained and therefore had more of a recognized bond with mother. Admittedly, it was more difficult for mother to visit Elizabeth, who was living in Northern California, and mother only had two visits with her. It is clear from the record that Elizabeth was blossoming in her placement and that she looked forward to a future with her prospective adoptive family.
Finally, it is undisputed that mother was not rehabilitated to the point that she could assume care of the minors. While mother was making significant progress toward rehabilitation, her drug addiction spanned nine years and was not a problem easily overcome. Indeed, as mother admits, for the first five months of her reunification services, she struggled to control her drug dependency and her life.
Mother complains that rather than considering these factors the juvenile court improperly engaged in what the In re Kimberly F. court called a “simple best interest test,” which is a mere comparison of the parent’s and caretaker’s households. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) Mother cites to the court’s following statements: “I’m just looking at these photographs, which kind of are demonstrative of the type of life that Elizabeth is living, . . . It’s clear that where she is, she’s well placed, she’s taken care of very well.” But we do not read these comments as suggesting the court was solely making a comparison of households rather than considering the whole picture in determining the minors’ best interests. Indeed, further on, in response to statements by the department’s attorney that “[i]f we’re talking about who can provide the best-looking home, who can provide the greatest amount of accessories and toys, who can take her on the most trips,” the court responded, “that’s clearly not the test here.”
Mother also complains that the juvenile court failed to consider that she had been given only six months of reunification services, rather than 12 or 18 months. But the juvenile court correctly recognized that “the parent’s rights to reunification services, and, indeed, to the care and custody of the child, are not unlimited.” (In re Jasmon O., supra, 8 Cal.4th at p. 421.) As noted above, for the first five months of the reunification period, mother wholly failed to participate in the reunification services and had no contact with the minors. By the time of the hearing on her petition, the parties agree that the case was in its 14th month, and there was no indication that mother was in a position to assume care and custody of the minors within the next four months.
For a child who was three years or older on the date of removal from the parent, like Elizabeth, reunification services shall not exceed 12 months from the date the child entered foster care; such services shall not exceed six months for a child under the age of three years on the date of removal, like James. (§ 361.5, subdivisions (a)(1) & (2).) Reunification services may be extended to 18 months only if it can be shown that the permanent plan for the child is that he or she will be returned and safely maintained in the home within the extended time period and the court finds there is a substantial probability that the child will be returned to the physical custody of the parent within the extended time period or that reasonable services have not been provided to the parent. (§ 361.5, subd. (a)(3).)
While parents have a fundamental right to maintain the parent-child relationship, “[c]hildren, too, have fundamental rights—including the fundamental right to be protected from neglect and to ‘have a placement that is stable [and] permanent.’” (In re Jasmon O., supra, 8 Cal.4th at p. 419; see also In re Marilyn H. (1993) 5 Cal.4th 295, 306 [children have a “fundamental independent interest in belonging to a family unit” and “they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child”].) Thus, children “have fundamental interests of their own that may diverge from the interests of the parent.” (In re Jasmon O., supra, at p. 419.) The interests of the parent and the child, therefore, must be balanced. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) Given that the case was in the permanency stage and mother’s recovery was ongoing, the minors’ rights to stable and permanent homes that would allow their caretakers to make full emotional commitments to them outweighed mother’s interest in reunification. “[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court’s discretion to decide that a child’s interest in stability has come to outweigh the natural parent’s interest in the care, custody and companionship of the child.” (In re Jasmon O., supra, at p. 419.) Under the facts presented here, we cannot conclude that the juvenile court’s denial of mother’s section 388 petition seeking further reunification services was an abuse of discretion exceeding all bounds of reason.
DISPOSITION
The order is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.