Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. CK 59459 Valerie Skeba, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
WOODS, J.
Amber N., the mother of minors Gavin and Xavier, appeals from the order denying her Welfare and Institutions Code section 388 petition and the order terminating her parental rights. Appellant contends the juvenile court erroneously denied her section 388 petition and erroneously terminated her parental rights. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Detention
Respondent Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition on July 6, 2005. The petition alleged appellant had sexually abused Courtney, an unrelated child, and had a history of illicit drug abuse. The petition also alleged appellant “left the children with the children’s paternal cousin [Carlos] and failed to make an appropriate plan for the children’s ongoing care and supervision. Further, [appellant] failed to inform anyone if she planned to return to resume care of the children. Further, [appellant] has a history of leaving the children with various relative and unrelated caretakers . . . . Further [appellant] failed to provide the children with the basic necessities of life including food, clothing, shelter and medical care.”
Courtney is subsequently described as a half-sibling.
In February 2005, appellant left Gavin and Xavier with their father’s cousin Carlos. According to Carlos, appellant was “running from the law” in Las Vegas, Nevada. Appellant had given Carlos temporary custody of the boys for six weeks. Carlos was unemployed and married with four children of his own. Carlos said that when the boys first came to live with him, Gavin was very angry and used foul language, but Gavin had adjusted. Based on other things Gavin had said, Carlos believed the boys had been exposed to domestic violence.
In April 2005, a children’s social worker (CSW) substantiated that appellant had been a perpetrator of sexual abuse of her stepdaughter Courtney. Previously, in September 2002, two reports of general neglect, emotional abuse, alcohol and drug use and a filthy home with amenities turned off had been found to be inconclusive.
Veronica and Helene, two relatives of appellant, said appellant had used illegal drugs such as marijuana and methamphetamines. According to Veronica, appellant often left the children in Veronica’s care to go party, returning very late in the evening. At those times, Veronica observed appellant to be drunk, manic and high strung. Appellant had a history of leaving the children with other people.
Appellant admitted to past drug use, but claimed she had stopped although she never had gone to a treatment program. Appellant said there had been altercations between herself and the children’s father Manuel, but denied domestic violence. Appellant lived in Nevada with her boyfriend Luke and Luke’s mother. Appellant told the CSW she had not made any financial provision for the children, she did not have the resources to take care of the children, and she would not return to California because she could not get a California driver’s license due to parking tickets.
Manuel, who was incarcerated in Nevada for sexual misconduct with a child and had a significant criminal history, is not a party to this action.
During telephone conversations with the CSW, appellant did not ask for Carlos’s telephone number or ask about her children’s welfare. Appellant denied abusing Courtney, saying Courtney had a long history of mental and emotional problems.
At a family decision meeting on June 30, it was learned that appellant had another child, Devon, who resided with his biological father through a family law order. Devon’s father had allegedly abducted him from appellant’s care when the child was two years old, but appellant never tried to get the boy back. At the meeting, all parties, including appellant, agreed Gavin and Xavier should be placed with maternal grandaunt Helene, who was a licensed foster care provider.
On July 1, appellant had a 45 minute visit with the children at the Department office in Palmdale. Appellant interacted with the children for 20 minutes and the rest of the time, she filled out forms and allowed her boyfriend Luke to play with the children. The CSW explained the dependency process to appellant. The CSW gave appellant a services referral packet.
In July, Courtney’s grandmother reported she was certain appellant was using methamphetamines, and, in addition to sexually abusing Courtney, appellant had physically abused the child and placed the child in a psychiatric hospital to stop the child from disclosing the abuse.
On July 6, appellant was not present in court for the hearing. The court found a prima facie case for detaining Gavin and Xavier in Helene’s home and ordered family reunification services.
II. Jurisdiction/Disposition
In July 2005, a CSW interviewed Courtney, who said appellant had beat her with a belt on her legs and buttocks, grabbed her by the throat, shaken her and thrown her on the bed, causing her head to hit a window sill. Once, Courtney had passed out. Appellant had sexually abused Courtney and threatened Courtney that if she talked, appellant would hurt her “‘‘til [she] died.’” Courtney was in therapy, and according to the grandmother, was continuing to disclose more about the abuse.
Although messages had been left at the telephone number appellant had confirmed was hers, the Department was unable to interview appellant. It was reported appellant was homeless and transient in Henderson, Nevada. Both children were happy and secure in Helene’s home. Initially, Gavin had some emotional problems when appellant left him with Carlos, but he showed no signs of needing counseling at that time.
Appellant was not present at the August 10 hearing. The court set the matter for contest.
Appellant was not present at the contested hearings on September 28 and 29. Courtney, who was then nine years old, testified about appellant’s physical and sexual abuse, stating appellant sexually abused her almost every night. Courtney had seen appellant hit Gavin.
In December, the court gave Helene permission to take the boys to Oregon for a vacation. Appellant requested permission to visit the children while they were in Oregon. The court granted her request, but she did not visit.
In January 2006, the Department reported it had been impossible to locate appellant so she had not been provided with funds to travel to the hearing.
At the April 14 hearing, appellant’s attorney indicated he had had no contact with her. The court sustained the petition as amended, finding appellant had physically abused and inappropriately cared for Courtney. The court acknowledged there were many indications appellant was using drugs, but not enough to sustain that count. The court sustained the allegations appellant had failed to provide for Gavin and Xavier and the abuse of Courtney placed the children at risk.
The court noted it had been a year since the children had been detained and there had been no contact with appellant. The court continued the case for notices under the Indian Child Welfare Act (ICWA) and a due diligence search for appellant. Subsequently, the court found ICWA did not apply.
In July, the Department reported the CSW had met with Helene and the children, who were healthy and doing well in Helene’s home. Gavin had finished kindergarten and done quite well, although he still needed to work on his social skills. Helene had had no contact with appellant since July 2005. Gavin said he liked it where he lived because they were so nice to him; they were nice to everybody.
At the July 12 hearing, appellant was not present. The court noted neither parent had made an appearance in court and appellant had not had any contact with the Department. Over the Department’s objection, the court granted appellant a continuance.
Appellant, who had not contacted her children, was not present at the August 3 hearing. Appellant’s attorney indicated appellant had contacted her sporadically. The court declared the children dependents and removed them from their parents’ care. The court sustained the Department’s section 342 petition, finding appellant’s whereabouts were unknown and did not order reunification services for that reason. The court set the matter for a section 366.26 hearing.
In November, the Department reported an approved adoptive home study would soon be completed for Helene. Helene was a pleasant, calm, flexible and patient individual and had trained as a medical assistant. Helene hoped to have a home daycare center in the future. Helene had no criminal record nor history of Department involvement. The children had a loving and nurturing relationship with Helene and were comfortable in her presence. Helene was committed to adopting the children and maintaining their stability.
Appellant’s whereabouts continued to be unknown. Manuel, who had called the boys in August 2006, was in favor of Helene’s adopting the boys. Helene made sure the boys had contact with other extended family members.
Seventeen months into the case, on November 30, appellant appeared in court for the first time. Appellant brought documents showing she had attended parenting classes and AA/NA meetings. Appellant also provided positive character reference letters. Appellant appeared to be employed part-time.
III. Section 388 Petition
On March 16, 2007, appellant filed a section 388 petition asking for custody of Gavin and Xavier and reinstatement of family reunification services and/or weekend overnight visits pending placement of the children in her home. The alleged changed circumstances were appellant’s recent employment, her obtaining suitable housing and her claim to have maintained sobriety for seven months. Appellant stated the change would be in the children’s best interest because they “greatly desire to be reunified” with her and she had visited “consistently.” Appellant also mentioned the children were placed with a maternal relative who would be available for additional support. Appellant provided attendance sheets for AA/NA meetings in December when she had attended 20 meetings. However, the attendance sheets showed appellant had attended only six meetings in January and three meetings in February. Appellant attached documentation showing she had attended a parenting class, an 8 hour anger control class, substance abuse treatment, pay stubs for November 2006 to January 2007, a property listing of her housing and character reference letters. There was no documentation of any further progress in any area after February 2007.
In April, the Department reported the children continued to do well and Helene wanted to provide them with a safe, loving and permanent home. The children had a strong bond with each other and were happy in Helene’s care.
According to the CSW, appellant had first contacted her in September 2006, at which time appellant claimed she thought the children had already been adopted. When appellant came to Los Angeles for the November hearing, she said she could not stay to visit. The CSW arranged for appellant to have a monitored visit on December 6, but appellant did not show up, claiming her attorney told her the wrong date.
On February 3, Helene monitored a two-hour visit. The children acted like appellant was a friend; Gavin repeatedly called appellant by her first name and told the CSW he called Helene “‘mommy.’” Xavier did not appear to recognize appellant. After that visit, appellant said she wanted the CSW to monitor the visits because she had had a disagreement with Helene. The CSW agreed, but noted appellant had had only two visits with the children since leaving them with Carlos in February 2005. Manuel had sent an e-mail expressing gratitude to Helene for taking care of the boys.
Helene continued to provide for the children; they were successful in school and turned to Helene to have their needs met. Helene’s adoptive home study had been approved in February.
At the April 5 hearing, appellant claimed neither the Department nor Helene were cooperating with her concerning visits. County Counsel protested, saying the CSW was a very good social worker who had told appellant what she needed to do to have visits. The court instructed appellant on how to obtain visits, i.e., to call the CSW.
The Department reviewed its history with appellant, noting that over the course of the dependency case, appellant had repeatedly failed to make use of the services offered by the Department. The children had been indifferent to appellant from the beginning of the case. Even when first detained, Gavin had never expressed a desire to live with appellant. Appellant had not complied with the case plan for at least a year before she started case plan activities. Appellant always had known where the children were. The CSW had attempted to contact appellant nearly every month. There was no additional information about appellant’s employment.
A therapist who had seen appellant just four times wrote a letter saying she had not seen anything to suggest appellant would be a danger to her children. Appellant had provided one negative drug test while visiting the Los Angeles area. Appellant’s support system was with people unknown to the children, and she was not willing to move back to California to be with the children. Manuel continued to be in favor of adoption by Helene.
Appellant had a visit with the children on April 5, 2007. There were no problems, and Gavin appeared to have fun playing paddle ball with appellant, but the children were not affectionate with appellant. When it was time to go, the children went readily with Helene and had to be reminded to say goodbye to appellant.
In June, the Department reported several relatives had spoken with the CSW expressing concern about the possibility of the children being returned to appellant’s care. Devon’s father wrote a letter describing how appellant had failed to show up for Devon’s custody hearing and failed to keep in contact with Devon.
Appellant had two visits in May. There was no sign of bonding between appellant and the children.
In July, the Department reported the CSW had been monitoring weekly telephone calls between appellant and Gavin. Appellant mostly spoke to Gavin about what she could buy him. Gavin was often distracted. There had been a visit on June 20.
IV. Contested Section 388/Section 366.26 Hearing
At the contested hearing on July 11, the court acknowledged appellant had made some changes in her life, but stated it would not be in the best interest of the children to grant the section 388 petition and denied the petition. The court then asked for an offer of proof as to appellant’s contact with the children in the previous six months. Appellant’s attorney stated appellant would testify she had many more contacts with the children than reported by the Department.
Appellant testified she had given Carlos a “guardianship letter” so he could watch the children for three months. Appellant thought the Department had detained the children because Carlos’s home was unsuitable. Appellant claimed she did not know she could visit with the children until she came to court for the first time. Appellant began to visit in either August, September or October 2006. Appellant had visited once or twice a month; Helene made it difficult for her to visit. Appellant saw the children early in December, but not at Christmas. Appellant was not allowed telephone contact until February 2007. During the telephone calls, she talked about toys and school.
During a telephone conversation on August 15, 2005, the CSW told appellant she could have monitored visits. The CSW also told appellant she was still entitled to visit during a September 12, 2006, telephone call.
In January, Xavier appeared to recognize appellant, but like Gavin, he called her by her first name. Appellant was given no funds for visits. Appellant called Helene three or four times in February, but visited only once in March. Appellant visited the children at the Department office and gave them gifts.
By February, Gavin had begun calling appellant “mom.” When they were at court in February, Gavin said he wanted to come visit appellant and asked why they could not all live together. Once, Gavin called her “mom.” When Gavin realized what he had done, he looked at Helene, and Helene became very stiff and serious. At Easter time, appellant brought the boys Easter baskets, and they hugged her, and they played and ate candy. When the visit ended, the boys let appellant hug and kiss them. Twice in May, Helene refused to allow visits. Appellant spoke with a CSW, but did not know she could have asked to make up for a missed visit.
Appellant talked to Gavin about what gifts he wanted because she had to be careful about the content of her conversations with him. Appellant had only one visit in June because Helene was not available; appellant had called ten times; but she had not asked how the children were doing, just left a message about setting up a visit. Helene never called back. The June visit had been at a McDonald’s, and appellant had played with the children. When the visit was over, Xavier hugged and kissed appellant, and Gavin said, “‘I love you, mom,’” and almost cried because he had to go.
Appellant remembered there had been another visit at the end of June; she and the children had laughed a lot because Xavier was more animated. Xavier called her “mom” during that visit. Gavin told her stories about another little boy who lived in Helene’s home and made drawings for her.
Appellant believed it would be harmful to the children if her parental rights were terminated. Appellant had not had time to bond with Xavier, but Gavin wanted to come and live with her and told her he missed her every time he saw her. Appellant’s relationship with Gavin had reverted to the loving, affectionate relationship they had “right before he left.” Appellant felt she had a parental bond with the children, but not as much with Xavier.
After receiving briefs from the parties, the court stated it did not believe much of appellant’s testimony, which was self-serving and not supported by documentation, and opined that the real problem was appellant’s behavior which had alienated her family. The court concluded: “I don’t believe that [appellant] has functioned in the capacity of a caretaker. And while I believe there may be some relationship between [appellant] and the children, I think it’s not a parental one. She hasn’t been functioning as a parent during visitation. She didn’t even have unmonitored visits. She never got to that point. And so I don’t believe that the children view her as a mother. I think they view her as somebody who is a nice person to play with. But she has not functioned as a caretaker or a parent in a very long time.” The court then terminated appellant’s parental rights.
Appellant filed a timely notice of appeal from those orders denying her section 388 petition and terminating her parental rights.
DISCUSSION
I. The court did not abuse its discretion when it denied appellant’s section 388 petition.
“Section 388 permits a parent to petition the court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child’s best interests. A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. ‘“[C]hildhood does not wait for the parent to become adequate.”’” (Citations omitted.) (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The change of circumstances or new evidence must be of a “‘significant nature.’” (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)
“‘Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.”” (In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
Appellant contends the court erroneously denied her section 388 petition because the court found she had proved a substantial change in circumstances and, in evaluating the best interest prong, the court had improperly applied a simple best interest test of comparing the household and upbringing offered by her with that of the caretaker. (In re Kimberly F. (1997) 56 Cal.App.4th at 519, 529.) Appellant asserts she had completely terminated her drug abuse, was employed with a suitable, stable residence and “visited her children as often as possible, subject to the obstruction of the Department and the caregiver.”
See discussion below about appellant’s claim of obstructed visits.
Appellant argues she had alleviated the problem which led to the dependency (abuse in the home), the children were strongly bonded to her, and any remaining concerns could be addressed through the reinstitution of reunification services. Appellant suggests the court minimized the children’s bonds with her and ignored Gavin’s clear desire to live with her.
When the court denied the section 388 petition, it stated it did not believe it was in the best interest of the children to grant the petition and, although the petition claimed the children “greatly desire to be reunified,” the court did not “see any evidence of that at all.” The court noted the only support for that statement was a November 2006 report. Even though appellant testified Gavin had told her he wanted to live with her, the court stated it did not believe appellant’s testimony and found it to be self-serving. In addition, “the preference of a minor child is not determinative of his or her best interests.” (In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.)
The March 2007 section 388 petition also stated appellant had visited consistently at a time when she had visited only twice.
In In re Kimberly F., supra, 56 Cal.App.4th at page 532, the court summarized the factors a court should consider in determining best interests in ruling on a section 388 petition: “(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 parents 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.” (Original italics.) The court noted the list was not meant to be exhaustive. (Ibid.) Additionally, the petition must be considered in the context of the entire dependency proceeding. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
The record indicates that appellant left her children with their father’s cousin Carlos without providing any financial support for them. Carlos was unemployed, married and had four children of his own to support. Relatives indicated appellant had a habit of leaving her children with others to care for; sometimes so she could go party. During the first 14 months of the dependency, appellant had only one visit with the children in July 2005, at which appellant spent most of her time filling out forms. Other than an August 2005 telephone call to the CSW, it was not until September 2006 that she made any attempt to contact her children or find out how they were doing.
According to Courtney, who had been sexually abused by appellant, appellant had hit Gavin. In June 2007, the Department reported that several relatives had expressed concern about her regaining custody of the children; her son Devon’s father had reservations based on her abandoning Devon. There was no indication appellant had participated in any counseling or classes relating to the sexual abuse. At the hearing, appellant’s counsel did not elicit whether she was still employed and had housing. Appellant’s AA/NA attendance sheets showed her attendance was tapering off.
Even though appellant apparently kept in sporadic contact with her counsel, she did not keep in contact with the Department or the court and did not return calls made to the number at which her counsel was able to reach her. During that entire time, Gavin and Xavier remained in Helene’s home being cared and provided for. When appellant appeared at the November 30, 2006, hearing, she could not stay for a visit, and even though the court ordered a visit for December 6 at her request, appellant failed to show claiming her counsel had given her the wrong date.
By the time of the section 388 hearing in July 2007, the children were bonded to Helene and were just starting to develop a relationship with appellant. The children, who had a strong bond with each other, had a loving and nurturing relationship with Helene, they were happy with Helene, and they looked to her to have their needs meet. Helene was committed to adopting the children. In May 2007, the CSW reported there were no signs of bonding between appellant and the children.
The changes in appellant’s life were late in coming and did not address all the reasons leading to the dependency, especially given her 24 month leave of absence from her children’s lives (other than for one brief visit) from the time she left them with Carlos; the changes were tenuous given her past history. In other words, appellant’s circumstances were changing more than changed. Thus, appellant failed to show it was in the best interest of her children to offer her more services or return the children to her custody. (See In re Angel B. (2002) 97 Cal.App.4th 454, 464 [“[A]t this point, the focus shifts to the needs of the child for permanency and stability.”].)
II. Substantial evidence supports the finding that the section 366.26, subdivision (c)(1)(A) exception did not apply.
Appellant contends she proved the applicability of the section 366.26, subdivision (c)(1)(A) exception to the termination of parental rights noting that in February 2005, she began regularly visiting and telephoning with positive results. The record shows that with the exception of the one visit in July 2005, appellant did not begin visiting until February 2007. Telephone contact also began in February 2007.
This court reviews the finding the section 366.26, subdivision (c)(1)(A) exception does not apply for substantial evidence. (In re Datoka H. (2005) 132 Cal.App.4th 212, 228.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
A parent must show “the relationship 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. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The 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. The relationship arises from day-to-day interaction, companionship and shared experiences. The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Citations omitted.) (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Even though day-to-day contact is not mandated (In re Casey D., supra, 70 Cal.App.4th at p. 51), more than frequent and loving contact is required. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)
Although appellant had positive visits with her children, the visits consisted of playing and eventually hugs and kisses. The visits were short and monitored. Appellant had not progressed to unmonitored visits, much less overnight or extended visits. At best, as noted by the court, appellant had assumed the role of a friendly visitor not a parent; that role was being fulfilled by Helene.
Finally, appellant suggests the juvenile court, the Department, and the caretaker unreasonably failed to facilitate visitation in violation of her due process rights. According to appellant, the Department and the caretaker obstructed visitation, and the court failed to enforce its orders for visitation. Although appellant acknowledges her lack of visitation prior to February 2007, her argument is disingenuous given her desertion of her children, other than for one visit, for 19 months from February 2005, when she left them with Carlos, to September 2006, when she first contacted the Department.
On November 30, when appellant first appeared, the court ordered the Department to facilitate a visit; the Department arranged for a December visit, but appellant failed to appear. The Department asked Helene to monitor a February visit, and she did so. At the February 15 hearing, after appellant complained Helene had not complied with visitation, the court ordered the Department to assist in providing visitation. The CSW agreed to monitor a visit at the Department office. Thus, the record shows that when appellant asked, the court ordered visitation and the Department helped facilitate the visits.
Early on (in July 2005), the CSW explained the dependency process to appellant. During the course of the proceedings, appellant had contact with her counsel even though she did not appear in court. A reasonable inference is that the CSW and her counsel told appellant to contact the Department to arrange for visitation. When appellant complained about problems with visitation, the court instructed her to call the CSW to arrange a visit. Despite that instruction and the fact Helene was apparently not returning appellant’s calls, appellant persisted in trying to arrange for visitation by calling Helene and not the Department. Appellant further complains the Department failed to help her with transportation funding, but does not show she asked for or was entitled to such funds.
Although the record indicates that appellant had problems scheduling visits with Helene, she did have visits. During the proceedings, the Department contacted appellant on an almost monthly basis at the address or phone number her counsel was able to contact her at, but she did not return the calls or attempt to contact her children. Thus, appellant’s failure to establish the section 366.26, subdivision (c)(1)(A) exception was due to her lack of effort to contact her children, the court or the Department to request visits and not to the caretaker’s making it difficult for her to visit.
DISPOSITION
The orders are affirmed.
We concur: PERLUSS, P.J., ZELON, J.