Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK71628, Stephen Marpet, Commissioner. Affirmed.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Denise M. Hippach, Associate County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Flor S. (Mother) appeals from the orders of the dependency court terminating her parental rights to her daughter, Flor. Mother contends the court abused its discretion in denying her Welfare and Institutions Code section 388 petition. She argues the court should have granted a hearing on the petition. Mother also contends the court erred in finding that the parent-child benefit exception in Section 366.26, subdivision (c)(1)(B)(i) did not apply. We affirm
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The initial facts including the detention.
In August 2006, Mother completed a drug program due to her history of illicit drug abuse, including the use of amphetamines and methamphetamine. However, she relapsed and when Flor was born in March 2007, Mother tested positive for methamphetamine. Flor, who did not test positive for illegal substances, came to the attention of the Los Angeles County Department of Children and Family Services (the Department) because of Mother’s positive drug test.
In May 2007, Mother accepted the Department’s offer to participate in a Voluntary Family Maintenance Service (VFMS) agreement. According, to the agreement, Mother was to participate in a drug rehabilitation program, random testing and parenting classes. After 10 months, Mother failed to complete the program. She did not complete any of the programs, refused to enter a residential drug treatment program, and failed to drug test. Mother did not show for nine drug tests. On January 9, 2008, Mother tested positive for amphetamines and methamphetamine. Mother refused to enter a residential treatment program.
Father was also involved in these proceedings. He is not a party on appeal and thus the facts as they relate to him have been omitted.
On February 13, 2008, the Department filed a Section 300 petition on behalf of Flor. Flor, who was 11 months old, was detained in shelter care. Mother was granted monitored visitation, was to be provided with reunification services, and ordered to have random drug testing.
2. The jurisdiction and disposition hearing, and the termination of reunification services.
On March 21, 2008, Flor was detained with her paternal grandmother. At the March 25, 2008 jurisdiction and disposition hearing, the dependency court sustained the amended petition against Mother, removed Flor from Mother, ordered reunification services, and placed Flor with her paternal grandmother. Mother was ordered to participate in parent education, drug rehabilitation with weekly random testing, and individual counseling. Mother was granted monitored visitation.
Mother did not participate in the court-ordered plan. She did not follow-up with any of the referrals provided by the social worker. Mother never enrolled in a rehabilitation program. She missed all random drug tests. From June 2008 through September 5, 2008, Mother had no contact with the social worker and had little contact with the social worker during other periods of time. Even after Mother left a message for the social worker on September 5, 2008, the social worker was unable to reach Mother.
Flor was doing well in the custody of her paternal grandmother, who expressed an interest in adoption.
A six-month review hearing was held on September 23, 2008. The Department reported that Flor was doing well in her paternal grandmother’s home. Flor had bonded with her grandmother. Mother was visiting Flor one or two times a week. The grandmother reported that Flor appeared to have bonded with Mother and became excited when Mother was present. The dependency court terminated reunification services because Mother was not participating in the case plan. The court found return of Flor to Mother would create a substantial risk of detriment to Flor, and reasonable, but unsuccessful, efforts had been made to reunite the family. The court set the matter for a Section 366.26 selection and implementation hearing.
Mother continued to live an unstable life. In November 2008, Mother reported being incarcerated for several weeks and moving to Colorado. A month later, however, the social worker could not locate Mother, whose whereabouts were unknown. Subsequently, Mother would report that she had gone to Mexico.
3. The contested Section 366.26 hearing and Mother’s Section 388 petition.
January 20, 2009, was the day of the permanency planning hearing. In its Section 366.26 report of that date, the Department recommended Flor be adopted by her paternal grandparents. The social worker noted that Flor was stable and comfortable and the paternal grandparents were committed to raising Flor. Flor had established a bond with her grandparents and the minor appeared happy and comfortable in their presence. The grandparents reported that Mother’s visits with Flor had been sporadic. Mother would appear at the grandparents’ home unannounced. Mother admitted that the last time she had seen Flor was on Christmas, and the time before that was on Thanksgiving. However, since January 2009 when Mother returned from Mexico, Mother had been having weekly visits with Flor and Mother called Flor on the telephone weekly. The court set the case for a contested hearing.
A contested Section 366.26 hearing was held on February 20, 2009. That same day, Mother filed a Section 388 petition, claiming to have substantially complied with the case plan by completing a six-month inpatient treatment program in Mexico that provided her with therapy and the following programs: overcoming addictions, parenting, and domestic violence. Mother attached to her petition various documents in Spanish and their English translations. Mother admitted the program did not offer random drug testing. Mother also stated she had visited Flor as often as possible. Mother requested custody of Flor or reinstatement of reunification services and unmonitored visitation on the condition that she test clean for drugs.
First, the dependency court denied Mother’s Section 388 petition without a hearing, finding there were no changed circumstances and the requested modification was not in Flor’s best interest.
Then, the court proceeded with the contested Section 366.26 hearing. Mother testified on her own behalf about the visits she had with Flor from February 2008 through June 2008. She testified that at the beginning she saw Flor almost daily for about five hours each time. Mother also testified to the following. She had gone to Mexico in June 2008 to participate in a six-month rehabilitation program. While in Mexico, she continued to visit Flor twice a month and called her almost daily. She visited Flor at least four to five times per week since returning to the United States in December 2008. In these visits she was “spending time with [Flor], playing, getting to know her, hugging her, kissing her, bonding with her.” She also fed and washed Flor. She admitted, however, that the last time she had seen Flor was on Christmas, and the time before that was on Thanksgiving. Flor called her and the paternal grandmother “mama.” All of the visits she had with Flor had been monitored.
Flor’s counsel and the Department argued that Mother’s parental rights should be terminated. The dependency court found Mother had not complied with the case plan, visited inconsistently, and had only monitored visits. The court found it would be detrimental to return Flor to Mother’s custody. The court found that Mother never took a parental role and no exception to the termination of parental rights existed. The court found, by clear and convincing evidence that Flor was adoptable. The court terminated Mother’s parental rights.
Mother timely appealed from the February 20, 2009 orders denying her a hearing on her Section 388 petition and terminating her parental rights pursuant to Section 366.26.
DISCUSSION
1. The dependency court did not abuse its discretion in denying Mother a hearing on her Section 388 petition.
A Section 388 petition seeks to modify the status quo in a dependency case. “Under section 388, a parent may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that [(1)] there is a change of circumstances or new evidence, and [(2)] the proposed modification is in the minor’s best interests. [Citations.]” (In re S.M. (2004) 118 Cal.App.4th 1108, 1119; accord In re D.R. (2007) 155 Cal.App.4th 480, 487.)
In reviewing a Section 388 petition, the dependency court may hold a hearing on the petition, or summarily deny it. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) The parent seeking modification must “only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Lesly G., supra, at p. 912.) The petition is to “be liberally construed in favor of its sufficiency. [Citation.]” (In re D.R., supra, 155 Cal.App.4th at p. 487; In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)
Section 388 states in part: “(a) Any parent... having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.... [¶]... [¶] (c) If it appears that the best interests of the child may be promoted by the proposed change of order,... the court shall order that a hearing be held....”
“ ‘The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.’ [Citations.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505; accord, In re Mary G. (2007) 151 Cal.App.4th 184, 205; In re Aaron R. (2005) 130 Cal.App.4th 697, 705.)
The ruling on a Section 388 petition is addressed to the sound discretion of the juvenile court, and will not be disturbed on appeal without a showing of a clear abuse of that discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.)
Here, with regard to the first prong, Mother did not make a prima facie showing that there has been a change of circumstances or new evidence since September 23, 2008, when services were terminated. Mother had a long history of substance abuse. While she completed one drug program in August 2006, Mother relapsed; Mother tested positive for methamphetamine in March 2007 at the time of Flor’s birth. During the pendency the VFMS and during the pendency of these proceedings, Mother never participated in any drug testing. (Mother did have one drug test during the VFMS; she tested positive for methamphetamine.) Even the program in Mexico did not include drug testing, so there could be no assurance that Mother had stayed clean during her participation in that program. Thus, even though Mother participated in the six-month program in Mexico, the record did not reflect that she had addressed her reliance on illicit drugs. Also, Mother did not complete drug counseling, parenting classes, or a program of individual counseling as ordered by the court, but waited until June 2008 to participate in such programs in Mexico. Thus, Mother did not demonstrate a significant change of circumstances. (Compare with In re Hashem H. (1996) 45 Cal.App.4th 1791 [juvenile court abuses discretion in summarily denying Section 388 petition when parent has consistently participated in individual therapy, regularly visited with child, held a full-time job, provided stable home for child, and therapist recommended child be returned to parent’s custody].) While we applaud all efforts Mother has taken, Mother is at the beginning stages of an attempt to change her life and there are no assurances that she has tackled her substance abuse problem. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 [petition alleging changing circumstances, rather than changed circumstances, is insufficient].)
With regard to the second prong, Mother has not made a prima facie showing that the proposed modification is in Flor’s best interests. Among the factors dependency courts consider in determining whether a proposed change of order is in a child’s best interest 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.)
Here, Mother’s use of methamphetamine, her inability to stay sober for a reasonable amount of time, her lack of compliance with the case plan, and her lack of drug testing, did not demonstrate her serious problem can easily be ameliorated. Even though Mother professed substantial love for Flor, the record did not demonstrate a strong bond between Mother and Flor. There were periods of time where Mother visited only sporadically. She admitted on January 20, 2009, that she had seen Flor on Thanksgiving 2008, but then not again until Christmas, and then not again for almost a month. All visits with Flor were monitored. In contrast, Flor had been in a stable, loving, environment since being placed with her paternal grandmother in March 2008. Flor had bonded with her grandparents, who wished to adopt her.
The dependency court did not abuse its discretion in summarily denying Mother’s Section 388 petition.
2. The record supports the finding that the beneficial parent-child relationship exception did not apply.
Mother contends the evidence supported a finding that the exception pursuant to Section 366.26, subdivision (c)(1)(B)(i) (formerly subdivision (c)(1)(A)) applied. We are not persuaded by this contention.
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to adoption where the “parents... maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” “[T]he phrase ‘benefit from continuing the relationship’ [refers] to a ‘parent-child’ relationship that ‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the 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 parent’s rights are not terminated.’ [Citation.] [¶] A parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child.... The relationship arises from the day-to-day interaction, companionship and shared experiences.’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]” (In re Mary G., supra, 151 Cal.App.4th at p. 207, fn. omitted; accord, In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) And, as the statute directs, the evidence must make a “compelling” case for not terminating parental rights. (§ 366.26, subd. (c)(1)(B).)
To carry the parent’s burden, the parent must prove he or she occupied a parental role in the child’s life and that severance of this bond would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i); In re B.D. (2008) 159 Cal.App.4th 1218, 1234; In re Mary G., supra, 151 Cal.App.4th at p. 207; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
To determine if the exception applies, “the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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 parent’s rights are not terminated.’ [Citation.]” (In re B.D., supra, 159 Cal.App.4th at pp. 1234-1235, citing In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
“Interaction between natural parent and child will always confer some incidental benefit to the child. [However, t]he significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.]” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Casey D., supra, 70 Cal.App.4th at p. 50; see also, In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) “A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466, citing In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) “It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra, at p. 1350.) In short, the juvenile court balances the quality of the relationship and the detriment involved in terminating it against the possible benefit of an adoptive family. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; In re Dakota H., supra, at p. 229.)
On appeal, we affirm a juvenile court’s rejection of an exception if the ruling is supported by substantial evidence. (In re B.D., supra, 159 Cal.App.4th at p. 1235; In re Cliffton B., supra, 81 Cal.App.4th at p. 425.)
Although there is language in In re Jasmine D., supra, 78 Cal.App.4th at page 1351, indicating the relevant standard of review is abuse of discretion, “[t]he practical differences between the two standards of review are not significant.” (Ibid.)
Mother did not meet her burden to show that the benefit of her relationship with Flor outweighed the benefit the child would gain by being in a permanent home with an adoptive parent.
At the time of the Section 366.26 hearing, Mother still had monitored visits. There were times during the two years since Flor had been detained that Mother did not visit Flor at all. Mother admitted that during her visits she was “getting to know” her daughter. Even if Flor recognized and played with Mother, and even if Mother fed Flor and showed her affection, these facts do not result in the establishment of a parental role. Simply being with a child is not sufficient to establish a parental role in a child’s life. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Evidence of pleasant and loving contact is insufficient. (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) Thus, the nature of the relationship Mother had with Flor was not close enough that severing it would deprive Flor of a substantial, positive emotional attachment. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419; compare with In re S.B. (2008) 164 Cal.App.4th 289 [immediately after child removed from father’s care, he recognized his drug abuse, maintained sobriety, sought medical and psychological services, maintained consistent and regular visitation with child, complied with every aspect of the case plan, and child had an emotionally significant attachment to father].)
Further, there was overwhelming evidence that Flor would benefit from continuing to be in the stable and permanent home provided by her paternal grandmother, with whom she had bonded.
There is substantial evidence to support the juvenile court’s conclusion that any benefit from Flor’s relationship with Mother was outweighed by Flor’s need for a stable and permanent home that would come with adoption. Therefore, substantial evidence supported the juvenile court’s finding that the exception in Section 366.26, subdivision (c)(1)(B)(i) did not apply.
DISPOSITION
The orders of the dependency court are affirmed.
We concur: KLEIN, P. J., CROSKEY, J.