Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 06CEJ300190-2. Jane A. Cardoza, Judge.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J. and Cornell, J.
Suzanne S. appeals from an October 2007 order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her one-year-old son I.S. She contends the court abused its discretion by denying her section 388 request for placement of I. in her care. On review, we disagree and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In July 2006 and while incarcerated, appellant gave birth to I. at eight months gestation. She admitted using crack cocaine and drinking vodka on a daily basis for the first seven months of her pregnancy. She had a history of drug and alcohol abuse preceding her pregnancy as well as convictions for drug-related offenses. Unsure whether she wanted to keep I., appellant signed a 30-day voluntary placement agreement with an adoption agency (agency). The agreement required the agency to return I. to appellant’s custody if, after 30 days, she did not finalize the adoption.
Less than a month later, appellant was released and court-ordered to complete residential drug treatment. Instead, she became homeless and resumed using drugs. When the 30 days had elapsed without any word from appellant, the agency attempted unsuccessfully to contact her. Lacking any authority to retain custody of I., the agency turned him over to the Fresno County Department of Children and Family Services (department). The department placed him in foster care and filed the underlying dependency petition pursuant to section 300, subdivisions (b) (neglect resulting from substance abuse) and (g) (parental whereabouts unknown).
Despite its due diligence, the department was unable to locate appellant until late November 2006. In the meantime, the court exercised its dependency jurisdiction over I., adjudged him a dependent, and removed him from parental custody. At the dispositional hearing, the court also denied appellant reunification services because her whereabouts were unknown (§ 361.5, subd. (b)(1)) and set a six-month review hearing for February 2007.
The department located appellant in jail after it had to initiate dependency proceedings as to another son of hers, four-year-old M. M., who had lived with his father for some time, suffered from neglect. In December, the juvenile court consolidated M. and I.’s cases and granted appellant weekly visitation with I.
In its report for the February six-month review hearing as to I., the department reported appellant participated in life skills and life changing programs and worked toward her General Education Degree while in jail. She also completed a substance abuse evaluation as recommended by the department, which resulted in a recommendation she complete residential drug treatment. However, given the unavailability of drug treatment at the jail and appellant’s scheduled release date, the department concluded she would not be able to complete treatment and reunify with I. within another six months.
The court did not conduct its status review of I.’s dependency until late April 2007. By then, appellant had been released from custody and into the Spirit of Women, a six-month residential drug treatment program. At the review hearing, appellant submitted a recent letter from her case manager stating her attendance and participation was more than satisfactory. Further, she was scheduled to complete the residential phase of the program in September 2007 followed by another six months of aftercare.
In the meantime, the court granted appellant reunification services for her older child.
The court found I. could not be safely returned to appellant’s custody. Although the department provided her reasonable services, appellant failed to regularly participate in and make substantive progress in her court-ordered services. Consequently, the court terminated reunification services and set an August 2007 section 366.26 hearing to select and implement a permanent plan for I.
In advance of the section 366.26 hearing, the department prepared a “366.26 WIC REPORT” in which it recommended the court find I. adoptable and terminate parental rights. The department recently located an adoptive couple for I. and he was adjusting well to that family. Starting in early August, the adoptive couple spent time every day with I. The couple was highly motivated to adopt I. The department planned to place I. in the couple’s home later in August. For reasons not discussed in the record, the foster family with whom I. had been placed for almost one year was not identified as being interested in adoption.
Relevant to this appeal, the department also discussed I.’s visits with appellant. Those visits, which were supervised and occurred twice a week for an hour, started in February 2007 while appellant was incarcerated. According to the staff supervising the visits, I. typically stared at appellant and did not show much emotion.
The author of the department’s report recommending termination supervised two recent visits, one in July and the other on the first of August. When the social worker asked appellant how the visits were going, she replied that I. “just stare[d] at her during the visit … [and] ha[d] not gotten use to her.” At the start of the August 1st visit, the social worker noted I. staring and acting as though he did not know who appellant was. The social worker found this surprising as I. had been visiting with appellant at that point twice a week for the preceding five months. It took 20 minutes into the visit before I. started playing and interacting more with appellant. Based on the social worker’s observations, it did not appear that I. recognized appellant as his mother.
On the date originally set for the section 366.26, appellant’s counsel requested a contested hearing which led to a continuance. In the interim, the attorney filed a section 388 request on appellant’s behalf, claiming changed circumstances and I.’s best interests favored a new order placing I. in appellant’s care with services. According to an attached Spirit of Woman letter from appellant’s case manager, appellant was scheduled to complete the residential phase of her drug treatment in September. She then would enter the Day Habilitation program where she would continue her studies and therapy for an additional six months. Her attendance and participation in both classes and therapy was more than satisfactory. Also attached to the section 388 request were two achievement certificates issued to appellant for completing a family nurturing program in July and a women’s health class in August, as part of her reunification services for her older child.
The department filed two addendum reports in response to appellant’s request. In them, the department urged the court to deny appellant’s request. I., who by late August had been placed with the adoptive couple identified in August, was a happy and playful one year old. However, as soon as he arrived for a visit and appellant tried to pick him up, the child screamed and cried. Appellant was unable to console him.
During a September 10th visit, the social worker observed I. cry and scream for approximately 30 minutes. He continued to cry off and on for the balance of the visit. Appellant held and entertained him in an effort to stop him from crying. He still appeared unhappy at the visit’s end. It was apparent to the social worker by how I. responded to appellant that there was not a significant bond.
A week later, the visit went well with I. only crying when he first arrived. However, it had been a two-hour visit to accommodate appellant’s substance abuse classes. By the visit’s end, I. was exhausted, tired and appeared overwhelmed.
During another supervised visit the following week, I. was tearful at the start. Appellant tried to stop I.’s crying by showing him toys. He responded by shaking his head and saying no. He cried off and on despite appellant’s effort until halfway through the visit when he noticed the social worker’s two cell phones. He left appellant to play with one of the cell phones. Despite the social worker’s urging that I. give one to appellant so they could pretend talking on the cell phones with one another, he did not do so. Appellant also tried to engage him with play but he did not respond to her.
At yet another visit, he cried off and on for the first 20 minutes but then engaged in play and was less distressed. I. still did not appear to recognize appellant as his mother.
The court conducted a hearing on appellant’s section 388 request and the department’s recommendation for adoption in late October 2007. Appellant’s transitional case manager, Elizabeth Cortez, as well as appellant testified in support of the section 388 request.
Although Cortez became appellant’s case manager in the transitional phase a month earlier, she had been involved in appellant’s treatment for five and a half months. Cortez testified appellant took an active role in her recovery and excelled in her progress. She drug tested and all of her tests were negative. She had not missed any of her appointments for therapy or classes. Appellant was living in the community in one of the program’s transitional homes. It was the witness’s understanding that appellant’s older child soon would be placed with her in one of their homes. Cortez conducted both scheduled and surprise visits to the transitional homes. She favored appellant being allowed to reunify with I. although she had never observed appellant with I.
Appellant testified first to her transitional living. She had two room or house mates. One of them had her two sons living there. Appellant’s days were filled with attending classes and AA/NA meetings, caring for her older son who spent part of the week with her, and visiting with I.
She believed her visits with I. in March, April, and May were “pretty good. He didn’t cry.” Sometimes he laughed and smiled but he did not respond to her hugs and kisses. She acknowledged that I. became “real upset with me and the visits would be bad.” She attributed his behavior to being removed from his original foster home in July or August. However, he became settled about a month before her testimony and he began to respond to her hugs and kisses. The visits were then “going really good.” In appellant’s opinion, I. was very comfortable with her. “We have a bond.”
Appellant testified she wanted to reunify with I. because she loved him, she believed she deserved him and he deserved her. She believed she was stable enough to take care of him because she had changed her life around. It was her plan to finish school, get her own place, stay clean and sober and take care of her children. She claimed she had been clean and sober for one year. After her six months of transitional living, she would continue to go to NA meetings and participate with her sponsor. She also wanted both of her sons to know one another. Although they had seen one another, I. probably did not know who his older half-sibling was. Finally, appellant believed termination would be detrimental to I. “because our bond now is only getting closer, and the visits are going real good.”
On cross-examination, appellant admitted she had not seen I. following his July 2006 birth, until approximately March 2007. Thereafter she saw him only at supervised visits twice a week. She never contacted the agency to which she relinquished I. immediately after his birth and she never had I. in her care. When asked to explain what she meant by having a bond with I., appellant replied, “[h]e recognizes who I am now.” She also admitted I.’s reaction to her was minimal until September 2007.
After closing arguments, the court denied appellant’s request for modification. Having found I. was adoptable, the court terminated parental rights.
DISCUSSION
I. Postjudgment Evidence
While this appeal was pending, appellant augmented the appellate record with the record of her older son’s dependency by citing the superior court’s December 2006 decision to consolidate both boys’ cases. The augmented record contained evidence developed after the termination order in I.’s case. In particular, it revealed the superior court in November 2007 placed appellant’s older son in her care subject to family maintenance services. Appellant cited this information in support of her claim that the court’s denial of her section 388 request amounted to prejudicial error.
Respondent in turn asked this court to take judicial notice of records developed later still in the older child’s case. According to those documents, appellant relapsed soon after she regained custody of her older son.
In an apparent case of be-careful-what-you-wish-for, appellant opposes respondent’s judicial notice request on grounds that, as a reviewing court, we should not consider postjudgment evidence (In re Zeth S. (2003) 31 Cal.4th 396, 399 (Zeth S.)). As the state supreme court concluded in Zeth S.,
“consideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights, and the liberal use of such evidence to reverse juvenile court judgments and remand cases for new hearings, would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile court’s orders and judgment.” (Zeth S., supra, 31 Cal.4th at p. 413, fn. omitted.)
Although respondent makes its judicial notice request in an effort to affirm, rather than reverse the termination order, Zeth S. reminds us that our appellate authority to make findings of fact on appeal should not be exercised absent exceptional circumstances. (Zeth S., supra, 31 Cal.4th at p. 405.) No such circumstances are present here. Thus, consistent with Zeth S., we will deny respondent’s request. Likewise, we have not considered any evidence contained in the augmented record which postdates the superior court’s decision to terminate appellant’s rights to I.
II. Appellant’s Section 388 Request
Appellant contends the superior court abused its discretion by denying her modification request. According to appellant, she established changed circumstances by her success in her reunification plan with M. Applying factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519, appellant further claims that allowing I. to be reunified with her was in the child’s best interests.
Any party may petition the court to modify or set aside a prior order on grounds of changed circumstance or new evidence. (§ 388, subd. (a).) The petitioning party must also show the proposed change is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) Even after a court terminates reunification services, section 388 provides a means for the court to address a legitimate change of circumstances while protecting a child’s need for prompt resolution of his or her custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)
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. (Stephanie M., supra, 7 Cal.4th at p. 318.) Having reviewed the record as summarized above, we conclude the court did not abuse its discretion by denying appellant’s section 388 request. (Stephanie M., supra, at p. 318.) Appellant neither established a legitimate change of circumstance to justify a new and different order (Marilyn H., supra, 5 Cal.4th at p. 309), nor did she show it would be in I.’s best interests to do so.
A. Change of circumstances.
As proof of changed circumstances, appellant stresses the progress she made since April 2007 through her participation in services for her older son M. She also cites the liberal unsupervised visits she had with M. and their close mother/son relationship. Although such evidence may well constitute changed circumstances justifying a different order as to M., it did not compel the superior court to find a legitimate changed circumstance to justify placing I. in her care. (Marilyn H., supra, 5 Cal.4th at p. 309.)
When the court terminated services for appellant as to I., not only did appellant have her substance abuse to address through residential drug treatment, there was also evidence that she lacked any relationship, other than a biological one, with I. She had relinquished him following his birth and did not have any contact with him until a one-half-hour jail visit occurred between them eight months later. When the court set the section 366.26 hearing, appellant was receiving supervised one-hour visits with I. twice a week.
Six months later when the court heard evidence on appellant’s section 388 request, appellant had taken an active role in her recovery and was making excellent progress. She completed the first phase of her residential treatment and two related courses. Although she claimed she had been clean and sober for a year, the evidence revealed it was not until late March 2007, when she entered the Spirit of Women program that she began to test negative. Thus, her sobriety remained relatively new and untested by the stresses of ordinary life outside of her sober living environment. In addition, despite appellant’s continued visits with I., no positive relationship, let alone a parent-child relationship, between appellant and I. had developed. Although appellant also cites her own testimony on this point as well, she loses sight of this court’s appellate responsibility. We must resolve all conflicts in favor of the respondent and indulge all legitimate inferences to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Following these appellate standards, we conclude the superior court properly could find that appellant did not establish legitimate changed circumstances to justify an order placing I. in her care.
B. Best interests.
In the alternative, we conclude appellant failed to satisfy her additional burden of showing that an order placing I. in her care would be in his best interests. She argues otherwise, citing again her progress towards reunification and her relationship with her older son as well as the fact that I.’s adoptive placement was recent, her claim that her relationship with I. was improving and that change in placement would allow I. to be raised with his half-brother.
Again, we disagree. First, neither appellant’s progress and relationship with her older son nor the recent nature of I.’s adoptive placement, affirmatively established I.’s interests would best be served by ordering his placement with appellant. Second, as explained above, although appellant may have seen her relationship with I. as improved, the superior court properly could find that there was no relationship between I. and appellant. Third, appellant’s sons had a sibling relationship in name only. Even appellant acknowledged I. did not know who M. was. There was no evidence of a beneficial relationship between the two.
In addition, appellant overlooks I.’s interest in permanence and stability at this stage of the proceedings. (Stephanie M., supra, 7 Cal.4th at p. 317.) Absent from the record is any evidence that placing I. with appellant would promote his interest in a permanent and stable placement.
DISPOSITION
The order terminating parental rights is affirmed.