Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County No. NJ14003, Michael Imhoff, Commissioner.
AARON, J.
Margaret B. and Patrick S. (together, the parents) appeal juvenile court orders denying their petitions for modification under Welfare and Institutions Code section 388, by which they sought to have their minor son, James S., returned to their custody, or in the alternative, to receive additional reunification services. The parents contend that their circumstances had changed, and that it was in James's best interests to grant the requested modification. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2008 the San Diego County Health and Human Services Agency (Agency) removed two-year-old James from his parents' custody and detained him in foster care following an incident of domestic violence and Patrick's subsequent threat of suicide. Margaret admitted that she had used methamphetamine and marijuana just before this incident. Patrick was convicted of battery and sentenced to 90 days in jail.
Both parents had significant criminal histories. Several years earlier, Patrick hit Margaret with a bottle and threatened to kill her while she was holding James. The parents also had histories of substance abuse, and they had both completed drug treatment programs. After being clean and sober for four years, Margaret relapsed into drug use. Patrick denied using drugs and said that he drank alcohol only occasionally. He admitted that the family was falling apart because of drugs and alcohol. The paternal grandmother and maternal great-grandmother had obtained restraining orders against Patrick.
Agency filed a petition in the juvenile court on behalf of James under section 300, subdivision (b). The court issued mutual restraining orders for the parents. At a jurisdiction and disposition hearing, the court sustained the allegations of the petition, declared James a dependent, removed him from parental custody and placed him with his maternal aunt and uncle. The court ordered the parents to participate in reunification services.
During the next six months, the parents continued to use drugs and violated the restraining orders by having contact with each other. Margaret was discharged from her third drug treatment program. Patrick was not participating in drug testing and was arrested for threatening to kill James's caregivers, and others. At a contested six-month review hearing, the court ordered further services for Margaret but terminated services for Patrick.
By the 12-month hearing, Margaret had unsuccessfully participated in two more drug treatment programs. She had not regularly attended therapy, completed a parenting class, or made progress with her therapeutic goals. Although Margaret had completed courses for domestic violence and anger management, she remained confrontational and aggressive, and blamed others for her problems. Margaret was having supervised visits with James once a week for two hours. James was hostile toward Margaret and refused to call her "mom."
The parents continued to violate the restraining orders. Although Patrick denied that he had a drug problem, he attended drug treatment. He was eventually discharged when he overdosed on pills. Margaret expressed resentment to the social worker, stating that she would not participate in services, to be spiteful. She admitted that she was using drugs, and she was behaving erratically. She later enrolled in a 90-day residential drug treatment program. At a contested 12-month hearing, the court found that Margaret had not made substantive progress with her case plan. The court terminated services and set a section 366.26 selection and implementation hearing.
The social worker recommended termination of parental rights and adoption as James's permanent plan. James was both generally and specifically adoptable. He had a relationship with his parents, but his feelings about them included anger, ambivalence and uncertainty. For nearly half of his life, James had depended on his caregivers to provide stability and nurturing care on a daily basis. He referred to his caregivers as mommy and daddy. The social worker concluded that it would not be detrimental to James to terminate parental rights.
Patrick filed a section 388 petition for modification, requesting that the court vacate the section 366.26 hearing and place James with him, or in the alternative, order further reunification services. Patrick's petition alleged that his circumstances had changed because he had participated in, and made progress with, services. The petition further alleged that James had a positive relationship with Patrick, and that the requested modification would allow James to be raised in his family of origin.
Margaret also filed a section 388 petition, asking the court to place James with her, or alternatively, to order more reunification services. She alleged in her petition that she had maintained her sobriety, had been in drug treatment for five months, and continued to make progress. As to best interests, the petition alleged that Margaret and James have a close relationship, and that James should be with his birth mother, who is healthy and sober and ready to regain custody of him.
In an addendum report, the social worker noted that Patrick had recently completed a 90-day residential treatment program and was in a sober living facility, but stated that his circumstances had not changed enough to have James placed with him. Patrick needed more time to show that he could remain sober without the support of a program. Patrick's behavior throughout the dependency proceedings had raised serious concerns about his mental health and his propensity for violence. His long-standing drug abuse and violent nature required therapeutic intervention before he could safely care for James.
Patrick left the sober living facility after one month.
The social worker stated that during the past three to six months, the relationship between Patrick and James had improved, but that James saw Patrick as a friendly relative or visitor, not a parent. At one point, James said that he wanted to live with Patrick at his new house and meet his new friends. Later, James's attitude about visits with Patrick became nonchalant, and he sometimes refused to speak to Patrick when Patrick telephoned. After one particular visit, James told Patrick that he hated him.
The social worker reported that Margaret had completed a 90-day residential drug treatment program, but Margaret had failed to participate in outpatient treatment. Margaret missed three visits with James and she did not telephone him weekly, as she was allowed to do. James told the social worker that he did not want any more visits with his parents. He said that he wanted a permanent plan with his caregivers.
The social worker concluded that the parents had made efforts to ameliorate the problems that led to James's dependency, but that they had not shown that their circumstances had changed to the extent that it would be in James's best interests to return to their custody or to have the parents' services extended. Thus, the social worker recommended the court deny the parents' section 388 modification petitions.
The court ordered an evidentiary hearing on the parents' section 388 petitions. Margaret testified that she had been clean and sober for eight months. She did not complete the aftercare portion of drug treatment. Instead, she had been attending three 12-Step meetings per week, although she was unable to provide proof of her attendance. Margaret testified that at visits, James always told her that he loved her.
Social worker Jennifer Ramos testified that Margaret's drug treatment counselor emphasized the importance of aftercare for Margaret. Because Margaret had not followed through on her treatment, Ramos believed that Margaret's circumstances had not changed with respect to her substance abuse. Ramos was also concerned about Margaret's violent behavior, including her outbursts of anger directed at James's caregivers. In Ramos's opinion, James's best interests would not be promoted by returning him to Margaret's custody or by offering further services because Margaret had not made progress with substance abuse treatment or anger management, and because James repeatedly stated that he no longer wanted to visit Margaret and that he wanted to stay with his caregivers. In the social worker's opinion, visits with Margaret made James feel uncertain about the stability of his placement. Prolonging that uncertainty would be difficult for him.
After considering the evidence and arguments of counsel, the court denied Margaret's section 388 petition for modification.
The court then considered evidence regarding Patrick's modification request. Patrick testified that after completing his 90-day drug treatment program, he attended church and 12-Step meetings as part of his aftercare. However, he had no proof of his attendance at those meetings. Patrick said that he had been clean and sober for five months. He was employed and had a home for James.
Ramos testified that Patrick had been making changes in his life, but that in her opinion, it would not be in James's best interests to be returned to Patrick's custody. Patrick had not adequately addressed his problems with substance abuse, mental instability, or propensity toward violence, and he was not able to provide James with a secure and stable home. Ramos believed that it would be detrimental to James to remove him from the home of his caregivers because he had lived with them for 21 months and had a substantial attachment to them.
The court found that Patrick's circumstances had changed, but that it would not be in James's best interests to return him to Patrick's custody or to offer Patrick further services. Accordingly, the court denied Patrick's section 388 petition. The court then terminated parental rights as to both parents and ordered adoption as James's permanent plan.
DISCUSSION
I
The parents contend that the court erred by denying their section 388 petitions for modification. They both assert that their circumstances had changed, and that it was in James's best interests to grant the proposed modification.
A
Section 388 and the Standard of Review
Under section 388, a party may petition the court to change, modify or set aside a prior court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change in circumstances or new evidence, and that the proposed change would be in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and whether a change would be in the child's best interests are determinations within the sound discretion of the juvenile court. Exercises of discretion must be " 'grounded in reasoned judgment and guided by legal principles and [legal] policies appropriate to the particular matter at issue.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Thus, although the abuse of discretion standard is deferential, "it is not empty." (People v. Williams (1998) 17 Cal.4th 148, 162.) The standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts. [Citations.]" (Ibid.) When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
B
The Court Properly Denied Margaret's Modification Petition
Margaret asserts that she showed that her circumstances had changed because she completed a drug treatment program on her own, attended therapy and completed classes in parenting, job placement, relapse prevention and anger management. She further asserts that she has maintained her sobriety for eight months and is attending 12-Step meetings. However, this evidence shows, at most, that Margaret's circumstances were "changing, " but had not changed. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) Margaret's eight-month period of sobriety, while commendable, was relatively brief compared to her lengthy history of substance abuse and her many attempts at rehabilitation and relapses. After completing her most recent drug treatment program, she failed to participate in aftercare, which was deemed crucial to her ongoing recovery. Although Margaret claims that the 12-Step program was a reasonable option to aftercare, she provided no proof of having attended 12-Step meetings. Moreover, there was no evidence that Margaret had drug tested since completing her 90-day residential drug treatment program three months earlier.
Margaret's section 388 modification petition sought return of James to her custody, or alternatively, more services. On appeal, Margaret argues only that the court should have ordered additional reunification services for her.
Further, Margaret did not show that she had adequately addressed other problems that led to James's removal from her custody. There was no evidence that she had effectively alleviated her propensity for anger, aggression or other threatening behaviors. Despite having completed classes to address these issues, Margaret continued to exhibit anger toward the social worker, and aggressive and threatening behavior toward James's caregivers. Evidence of changing circumstances, such as Margaret presented, does not promote stability for a child, nor does it promote a child's best interests because it would mean delaying the selection of a permanent home to see whether a parent who has failed to reunify with the child might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The court properly found that Margaret had not met her burden of showing changed circumstances sufficient to warrant further reunification services.
Even if Margaret had shown changed circumstances, she did not show that the proposed modification would be in James's best interests. The Legislature has determined that an attempt to facilitate reunification between a parent and child generally is not in the child's best interests when the parent is a chronic drug abuser who has resisted prior treatment. (In re Levi U. (2000) 78 Cal.App.4th 191, 199-200.) The parent's high risk of relapse into drug use puts his or her interest in reunifying with the child directly at odds with the child's compelling right to a " 'placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' " (In re William B. (2008) 163 Cal.App.4th 1220, 1228, quoting In re Marilyn H., supra, 5 Cal.4th at p. 306.) As we previously discussed, Margaret had just begun to resolve her substance abuse issues, and at the time of the hearing on the section 388 petition, she remained at high risk of relapse.
Margaret claims that the proposed modification was in James's best interests because she and James shared a bond that could be strengthened by further services. However, the evidence showed that James's relationship with Margaret had deteriorated by the time of the hearing on the modification petition. Margaret's failure to consistently visit and telephone James caused him to be angry with her. He became agitated, disagreeable and obstinate during and after visits with Margaret. At one visit, James told Margaret that he did not love her. James was reluctant to visit Margaret, and eventually refused visits with her.
James had been living with his caregivers for nearly two years, was strongly attached to them, viewed this placement as "home" and wanted to continue living there. The court could reasonably have concluded that ordering services for Margaret in the hope of reunifying with James would postpone stability for James, and would not be in his best interests compared to the certainty of his placement. (See In re Angel B. (2002) 97 Cal.App.4th 454, 464.) The proper focus of this case was on James's need for stability, continuity and permanency, regardless of Margaret's interest in reunification. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) The court acted well within its discretion by denying Margaret's modification petition.
C
The Court Properly Denied Patrick's Modification Petition
Patrick contends that the court abused its discretion by finding that it was not in James's best interests to grant Patrick's modification petition, in which Patrick sought additional time to reunify with James. Patrick asserts that the court did not consider many important factors, including the strength of the existing bond between Patrick and James.
Although Patrick sought return of James to his custody in his modification petition, his argument on appeal is limited to his request for further services.
The evidence showed that Patrick's visits with James were sporadic throughout the dependency proceedings. When Patrick resumed visits with James in April 2010 after a significant absence, there was no father/son connection. James showed ambivalence, uncertainty and anger toward Patrick. Although the relationship between Patrick and James began to improve during the next four months, James related to Patrick as a friend or friendly relative. Eventually, James became indifferent toward Patrick, refused to speak to him when he telephoned, told Patrick that he hated him and refused to have any more visits with him.
By comparison, James was attached to his caregivers, considered them to be his parents and wanted to be a permanent part of their family. "[A] primary consideration in determining the child's best interest[s] is the goal of assuring stability and continuity. [Citation.] 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In ruling on Patrick's section 388 petition, James's interest in security was the court's foremost concern, outweighing any interest that Patrick had in reunification. (In re Anthony W. (2001) 87 Cal.App.4th 246, 251-252.) The court could reasonably have found that it would not be in James's best interests to prolong uncertainty and postpone permanency with the hope that offering Patrick further services would allow Patrick to eventually provide James a safe, stable home. The court did not abuse its discretion by denying Patrick's section 388 petition for modification.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.