Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD226448, JD226449
ROBIE, J.
Mother, L. W., appeals from the order terminating her parental rights over twins, J. B. and Je. B. She contends the court abused its discretion in denying her Welfare and Institutions Code section 388 petition, that there is insufficient evidence to support the finding that the twins were generally adoptable, and that the court erred in finding the parental bond exception did not apply. We shall affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On September 28, 2007, mother was found on the floor next to J. B. She had overdosed on cocaine, ecstasy, and marijuana. J. B. was approximately six months old. It was suspected mother had previously attempted suicide five times. She also had an open Child Protective Services (CPS) case in Nevada with her five-year-old daughter.
Mother had a history of substance abuse dating back to 2002 and eight previous referrals to CPS beginning in 2003. Mother was on Proposition 36 probation for possession of drugs in April 2006. She was required to attend various meetings and submit to drug testing through her probation, but stopped services in January 2007. Mother had also failed two court-ordered drug treatment programs.
Mother claimed her cocaine use on September 28 was “more or less ‘an accident’” and denied that it was a suicide attempt. Mother had been offered voluntary services in March 2007 through September 2007, including Birth and Beyond services and drug testing, but had refused these services.
Mother and father were both arrested on October 29, 2007, for loitering in a narcotics area. At that time, mother was also arrested for forgery. Mother had been ordered to undergo drug testing, and as of October 30, 2007, had not complied.
J. B. and Je. B. were taken into protective custody on October 4, 2007. Both children were examined and were found to have a number of ailments, including oral thrush, and both were found to be drug endangered.
The children were ordered detained on October 10, 2007. Mother and father were granted weekly supervised visits. As of the November 2, 2007 report, the parents had been visiting and the visits had been appropriate.
As of October 30, 2007, both children appeared happy and within normal developmental limits. Je. B. appeared more advanced than her brother.
The children were placed with their paternal great-aunt on January 11, 2008. Both children were doing well in the foster home, and bonding well with their great-aunt. Je. B. was developing within the normal range for her age group, crawling on the floor and attempting to stand on her own. J. B. required more attention than his sister, but was also thriving in the foster home. He was appropriately meeting developmental milestones, although more slowly than his sister. He was slower to roll over and sit up on his own and was attempting to crawl on a consistent basis.
The parents continued to visit with the children appropriately. However, once the children were moved to the great-aunt’s home, the visits became inconsistent. The parents’ interactions were limited and did not last long. The children did not cry when they left.
As part of her reunification plan, mother had been referred to individual counseling. Six months later, she had not attended any sessions. Mother was required to attend parenting classes. After attending one orientation class, she did not attend any additional sessions. Mother was ordered to drug test three times per week. She tested three times, November 7, 2007, March 10, 2008, and March 12, 2008. The tests on March 10 and 12 were positive for marijuana.
Mother had been difficult to keep in touch with and was moving around a lot. She was having a hard time participating in services and her Proposition 36 programs. She acknowledged her participation in services had been minimal. She disputed, however, that she needed to participate in individual counseling.
On April 25, 2008, finding the parents’ progress had been minimal, the court terminated reunification services.
After services were terminated, mother continued to have visits. The paternal great-aunt refused to continue to supervise visits because the parents were inconsistent in their visits, rude, disrespectful, and profane. On June 26, 2008, mother reported she had been visiting the children at an unapproved relative’s home. The social worker advised mother that this was inappropriate. On July 17, 2008, mother did not show up for a scheduled visit as she had been incarcerated while trying to “clear her warrants.” Mother was released on August 1, 2008.
After a June 23, 2008, physical examination, J. B. was referred for a hearing test as he was not speaking well for his age. He was also not gripping objects well and his limbs were “floppy.” He did not hold cups with a proper grip. He started walking in August 2008, but was still not speaking. Je. B. was healthy and developmentally on target. Both children were happy and playful and had an appropriate parental bond with their caretaker.
The caretaker initially did not want to adopt the children, but as of August 11, 2008, she was open to adopting them. They had lived with her for eight months. The children were young, healthy, and had no behavioral problems. The social worker concluded the children were “highly likely” to be adopted. The social worker also noted the parents had not had a significant parent/child relationship with the children; therefore terminating their parental rights would not be a detriment to the children.
On September 16, 2008, mother filed a modification petition under section 388. Mother claimed she now had safe and stable housing in Reno, had been participating in services (including parenting classes) and was clean and sober. She requested the children be placed with her, or alternatively that she be granted additional reunification services. She also claimed modification was in the children’s best interest because she could provide for them and it was in their best interest to be raised by their mother.
Despite finding that the section 388 motion had no evidence of either a change of circumstances or that it was in the children’s best interests, the court allowed the matter to proceed to a contested hearing, along with the contested section 366.26 hearing “out of an abundance of an attempt to allow for due process.”
At the September 26, 2008, contested hearing, mother testified that she had been participating in parenting classes and substance abuse classes, had started drug testing, and was doing counseling. Mother had been to four parenting class sessions and two substance abuse counseling sessions. She had completed one substance abuse treatment class and had submitted one drug test earlier in the week. Mother claimed her clean and sober date was October 1, 2007. Mother acknowledged she had tested positive for marijuana on March 10 and March 12, 2008, and explained that October 2007 was when she had last done cocaine which was her “main addiction.”
Mother was not participating in either NA or AA meetings, and was not engaged in any individual counseling. The last time she had visited the children was in August 2008. She testified that after reunification services had been terminated, she realized living in Sacramento “wasn’t working” so she moved. Now she had a job and a two bedroom apartment, which she lived in with father. Father was also attending parenting classes, but nothing else. She believed it was in her children’s best interests to reunify with her because she was their mother and loved “them to death,” and the fact that she had made a “small mistake” should not result in her being punished by having her children taken away from her.
On the section 388 petition, the court stated it had gone back and read the report supporting termination of services. The court noted in that report that the visits had been inconsistent, mother had been difficult to maintain contact with, was not participating in required services or her Proposition 36 program, and disputed that she needed to attend individual counseling. Mother submitted dirty drug tests and had not completed any component of her reunification plan. The court reviewed that history to determine “what value there [was] to anything that the mother’s testifying to as to her 388.”
The court noted the only evidence before it on the section 388 petition was mother’s testimony and a document indicating mother was “now attending parenting classes” with the words “now attending” italicized. The court viewed this emphasis as an “indication that there has not been extensive parenting education.” The court gave that evidence little value because parenting education was not the reason for the children being declared dependents. Rather, as the court later noted, the children were declared dependents because of mother’s serious substance abuse problems, including a cocaine overdose. There was no showing that mother had addressed her substance abuse problems. To the contrary, the court found her testimony on that subject disingenuous, with her claim that she had been clean and sober since October 2007, despite her later marijuana use. The court noted this answer showed a lack of understanding of substance abuse and substance abuse treatment. “There is just simply no proof she has treated substance abuse.”
The court also found there was no evidence that granting the motion would serve the children’s best interests. While acknowledging that mother loved her children, the court noted the proceedings were not about punishing mother, but about gaining permanence and stability for the children. The court also found the “children simply do not have the strength of bond between -- with the parents that is necessary to sway this Court.”
The court found there had been “no change in circumstances. There is not even a changing circumstance. The mother has simply not demonstrated that the children can be safely returned to her even in the near future.... There has been very little new information or new evidence and simply no showing of best interest to the children to grant the request.”
The matter then proceeded to the section 366.26 hearing. The adoptions social worker testified at the hearing. She had previously had some concerns about J. B.’s adoptability because of his “flimsy limbs” and his slower speech development. However, since writing the adoptions report, she had visited with the children. She noted J. B. was currently walking, talking, singing, and feeding himself. He was able to speak words and play with toys. She no longer had concerns regarding his speech development. She also noted the current caretaker was aware of the earlier concerns regarding J. B.’s development and was willing to adopt the children anyway.
In finding the children adoptable, the court noted “[w]e are talking about a set of twins [who] are a year and a half old. They are young. There is nothing in the evidence that shows me their physical conditions are such that they cannot be adopted or are not likely to be adopted. There is simply no evidence to believe that their emotional state would not allow them to be adopted or that it would make it difficult to find a person willing to adopt. In fact, the testimony I have before me is clear and convincing that we have at least one person who is willing to adopt and that is the current caregiver and that absent that the children are still notwithstanding any concern regarding the need for a hearing test or not speaking as much as a sibling or more slowly engaging in walking than the sibling. There’s nothing in those things to cause me to believe that these children are not likely to be adopted.” Accordingly, the court found the children adoptable.
The court then considered the parental bond exception and found “the parents have not maintained regular visitation with these children. But the more important question even if you give the parents the benefit of a finding that they have maintained regular visitation and contact... the next question is: Would the children benefit from a continuing relationship? [¶]... [¶] In this case, the parents have not met their burden in establishing... that there is a substantial positive, emotional attachment between they and the children nor that the children would be greatly harmed by severing the tie.... [¶]... [¶] These children have needs for stability and they have that now. They are young children, and they have been out of the parents’ home since October 10th, 2007, getting close on a year ago. So they have been out of the home more than they’ve been in the home by a substantial period.” Accordingly, the court found the parental bond exception did not apply. Parental rights were terminated and a permanent plan of adoption was ordered.
DISCUSSION
I
Denial Of Petition For Modification
Mother contends the trial court abused its discretion in denying her section 388 petition. We disagree.
Under section 388, a parent may bring a petition for modification of any order of the juvenile court based on new evidence or a showing of changed circumstances. “The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)
Determination of a petition to modify is committed to the sound discretion of the juvenile court; absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
One of the functions of section 388 is to provide “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status.” (Marilyn H.,at p. 309.)
The best interests of the child are of paramount consideration when the section 388 petition is brought after the termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the child’s best interests, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H., supra, 5 Cal.4th at p. 309.)
In ruling on the petition for modification, the juvenile court may consider: “(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., supra,56 Cal.App.4th at pp. 531-532, italics omitted.)
Mother claims she demonstrated changed circumstances and that placing the children with her was in their best interests. We disagree.
Here, the children were placed in protective custody because of mother’s drug overdose. Mother had a long history of substance abuse, multiple overdoses, and failed drug treatment programs. She continued to use drugs after the children were removed from her. She had only just begun taking substance abuse classes and had not drug tested for six months. She claimed she had been clean and sober since October 2007, despite having had two dirty tests in March 2008. In short, as the court found, mother did not present changing circumstances let alone changed circumstances. Her claims of employment, new housing, and participation in some parenting classes does not demonstrate that the circumstances which led to dependency have been ameliorated or were even on the path to resolution.
Furthermore, the record reflects there was little bond between mother and the children, despite mother’s testimony that she “loved [the children] to death.” The children had lived most of their lives outside of mother’s home. Visits with mother were inconsistent, and at those visits interactions with the parents were limited, with the parents declining to bathe and feed the children. The children did not cry when mother left the visits. There was no evidence in the record that the children had a significant parental bond with mother. By way of contrast, the children had lived for eight months with their current caretaker and the record demonstrated they had a strong parental bond with her.
We note mother’s claims of the best interests of the children focused primarily on her feelings, not the children’s interests.
On this record, there was no abuse of discretion in denying the section 388 petition.
II
Finding Of Adoptability
Mother next contends the finding of adoptability was not supported by substantial evidence. Specifically, mother claims that “[u]ntil [J. B.’s] developmental problems were thoroughly reviewed by medical experts, it was premature to find him adoptable.” We are not persuaded.
In order to select and implement adoption as the permanent plan, the juvenile court “must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).) “The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (Id. at pp. 1649-1650, italics omitted.)
An order terminating parental rights must be affirmed if it is supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) “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.)
Here, viewing the evidence in the light most favorable to the order, there is substantial evidence supporting the finding of adoptability. These children are young, less than two years old. They are happy, playful, and have no behavioral problems. They are well bonded to each other, their caretaker, and their half sister. Throughout the proceedings, it has been noted that J. B. was developing more slowly than his sister. The most serious of these developmental concerns being raised in the adoption report was that he had “floppy limbs,” trouble holding his cup, and was not speaking. However, the adoptions worker had visited with the children between the time she wrote the report and the section 366.26 hearing. She personally observed J. B. talking, walking, feeding himself, and playing. She had no additional concerns regarding his speech. The caretaker also reported J. B. had been singing.
In addition, despite any concerns about J. B.’s development, his caretaker was willing to adopt him, and other potential adoptive caretakers had been identified as well. All of these prospective adopters had been advised of the potential concerns regarding J. B.’s development and those concerns did not impact their interest in adopting the twins.
Mother’s reliance on In re Brian P. (2002) 99 Cal.App.4th 616 is misplaced. Brian P. involved a four-year-old child with a history of “developmental difficulties.” The reports prepared for the section 366.26 hearing stated the child was adoptable, however, they contained no evidence to support this conclusion, and the appellate court determined “th[e] record raise[d] as many questions as assurances about his adoptability.” (Brian P., at pp. 624-625.) The court concluded the “fragmentary and ambiguous evidence was not enough to buttress the [social service a]gency’s position that [the child] was adoptable.” (Id. at p. 625.)
Here, unlike in Brian P., the social worker’s reports contained information about the children’s developmental, physical, and emotional status; and the finding of adoptability was supported by evidence of their characteristics, the desire of their current caregiver to adopt them, and the interest of others in adopting them. Furthermore, the record here does not reflect that any language or developmental delays of J. B. would create any difficulty in terms of placing him for adoption. There was no evidence that J. B.’s potential delayed language skills or slightly delayed development would necessitate a specialized placement or that his delays were so severe as to pose an obstacle to adoption. In short, there was nothing about J. B.’s “age, physical condition, and emotional state [that would] make it difficult to find a person willing to adopt the minor.” (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Thus, substantial evidence supports the finding that the children were adoptable.
III
Parental Relationship Exception
Mother’s final contention is that the “evidence was insufficient to establish the minors would not benefit from a continued relationship with their birth mother.” Again we are not persuaded.
As discussed, post, this phrasing of the issue turns the appropriate standard on its head. The issue on appeal is whether there is sufficient evidence to support the court’s finding, not whether there is insufficient evidence to not support it.
Under section 366.26, subdivision (c)(1)(B)(i), if the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless the court determines that termination would be detrimental to the minor because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parent has the burden of establishing an exception to termination of parental rights. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.)
Formerly section 366.26, subdivision (c)(1)(A).
“When determining whether the exception applies to bar termination of parental rights, 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. However, 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 other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. (See § 366.26, subd. (c)(1).)” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
We review for substantial evidence the juvenile court’s ruling declining to find an exception to termination of parental rights. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re Derek W. (1999) 73 Cal.App.4th 823, 827.) As above, in reviewing 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.” (Autumn H.,at p. 576.) Mother did not meet her burden.
First, the record does not support the conclusion that mother maintained regular visitation and contact with the children. The children were out of mother’s custody for almost one year. She maintained regular visitation for the first few months, and then by January 2008, her visits became inconsistent and short. Mother was authorized to visit on a weekly basis, and only visited once a month. Mother claimed to have had three visits, visits which were not supervised by an authorized person or conducted through the appropriate channels. Even accepting the three unsupervised and unauthorized visits mother claims took place, we cannot say that short, inconsistent visits for six months followed by three other visits constitutes regular visitation and contact. Thus, substantial evidence supported the court’s finding that mother had not maintained regular visitation and contact with the children.
Nor did mother demonstrate that the quality of her relationship with the children is such that it confers a benefit on her children or that the children would suffer a detriment from its termination.
“The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs. [Citation.] While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)
Here, J. B. and Je. B. are very young, too young to understand the concept of a biological parent. They have spent the majority of their lives living apart from mother and have had relatively few hours visiting with her. While the record indicates the visits between mother and the children were positive, there is nothing to suggest the relationship is particularly parental. That is, there is nothing which demonstrates the kind of “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.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] 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.” (In re Autumn H., supra,27 Cal.App.4th at p. 575.) That kind of positive emotional attachment was simply not established in this case. Nor was there a suggestion in this record that the children would be harmed in any way if their brief and inconsistent visits with mother ended.
“To overcome the strong policy in favor of terminating parental rights and to fall within section 366.26, subdivision (c)(1)(A)’s purview, the parent must show more than ‘frequent and loving contact,’ [citation], and be more to the child than a mere ‘friendly visitor or friendly nonparent relative.’ [Citation.] The parent must show the parent-child bond is a ‘substantial, positive emotional attachment such that the child would be greatly harmed’ if parental rights were terminated. [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 81.) Mother did not make this showing.
DISPOSITION
The order is affirmed.
We concur: BLEASE, Acting P. J., BUTZ, J.