Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. J200975, A. Rex Victor, Judge. Affirmed.
Laura L. Furness, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Julie J. Surber, Deputy County Counsel, for Plaintiff and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, J.
Diane M. (Mother) is the mother of three children. All three children have been removed from Mother’s custody; one child is in the custody of his father, and another was placed with a grandmother. This appeal involves the youngest child, two-year-old Jeremiah. Mother appeals from the juvenile court’s order terminating her parental rights as to Jeremiah. Her sole contention is that the juvenile court abused its discretion in denying her Welfare and Institutions Code section 388 petition. We reject this contention and affirm the judgment.
Jeremiah’s father is not a party to this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
In April 2005, Mother gave birth to Jeremiah. Mother had tested positive for drugs during pregnancy and was reported to be mildly retarded or developmentally delayed. The San Bernardino County Department of Children’s Services (DCS) was contacted after the baby displayed symptoms of drug withdrawal and Mother appeared unconcerned for the baby. Indeed, during delivery, she threatened to beat the baby for causing her so much pain in childbirth, and after her release from the hospital, she left the baby at the hospital and went out drinking beer with friends. Mother failed to visit the baby for approximately two days. She was later observed panhandling in front of a grocery store.
When Mother was interviewed, she stated she lived in a motel with her boyfriend, the alleged father of the baby. She admitted to abusing drugs, being on probation for drug violations, and attending substance abuse meetings and outpatient substance abuse treatment. Mother’s criminal record included offenses for willful cruelty to a child, numerous drug-use violations, inflicting corporal injury to a spouse/cohabitant, and failure to appear. Mother’s boyfriend also was on probation for domestic violence stemming from an incident in which he stabbed Mother in the head with a fork. Mother and her boyfriend also had a significant history with children’s services, including emergency responses, family reunification, and family maintenance services.
On April 8, 2005, DCS filed a petition on behalf of Jeremiah pursuant to section 300, subdivision (b) (failure to protect). Jeremiah was formally removed from Mother’s care and placed in protective custody.
In May 2005, Mother still appeared to be unconcerned for her child. She had not asked about Jeremiah’s welfare or requested a visit. The social worker recommended providing reunification services and noted Mother was to complete a psychological evaluation to assist in the reunification efforts. Mother’s case plan required Mother to complete a psychiatric/psychological evaluation, general counseling, anger management counseling, a domestic violence program, a parenting education program, and an outpatient substance abuse program and to randomly drug test.
The jurisdictional/dispositional hearing was held on June 14, 2005. The court found the allegations in the petition true, Jeremiah was declared a dependent of the court, and Mother was ordered to participate in reunification services. She was also ordered to participate in weekly supervised visits with Jeremiah.
Mother eventually requested a visit with Jeremiah during the last half of June. Her first visit was on June 23, 2005. Visitation was facilitated through the social worker and the foster mother because, despite being offered gas scrip, Mother could not arrange transportation on her own.
On August 24, 2005, Mother had completed an outpatient substance abuse program and continued to regularly attend Narcotics Anonymous and Alcoholics Anonymous meetings. However, she had yet to obtain a psychological evaluation. Despite several requests by the social worker, she failed to obtain an evaluation and refused an appointment when one was offered to her. Mother did not have a picture identification card and did not appear to be capable of obtaining one. She received Social Security assistance due to her mental disability but did not have her own apartment. The social worker opined that Mother had not demonstrated any ability to solve problems or handle financial matters, and it appeared unlikely that she would be able to care for Jeremiah without full-time supervision. Mother had no family support and was developmentally disabled. The social worker was concerned about Mother’s competence and suggested the court appoint a guardian ad litem for her.
The six-month review hearing was held on December 13, 2005. The court continued Mother’s reunification services, finding Mother had made moderate, but not substantive, progress in her case plan and that there was a substantial probability Jeremiah would be returned to Mother within six months.
Mother completed a psychological evaluation on December 9, 2005, with Dr. Karman. During the evaluation, Mother admitted to extensive drug use beginning at age eight and lasting throughout her life, including during the first five months of her pregnancy with Jeremiah. Dr. Karman determined Mother could not manage money, did not have a steady income, had no permanent residence, and lacked a support system. He concluded that Mother was a “low-functioning individual who has a very difficult background to overcome to reach a level of adequate parenting performance.” He noted that Mother’s low level of intelligence and extensive drug use left her “with a minimal ability to solve the basic kinds of problems a parent encounters on a daily basis.” The doctor concluded that even if Mother’s polysubstance abuse were in full remission, “[i]t is difficult to see how she could care for a child even if she is able to avoid resuming taking drugs again.”
Mother continued to consistently visit with Jeremiah, had completed a parenting class, and was within three meetings of completing an anger management program. She had made good progress on her case plan but was unable to show that she was capable of caring for Jeremiah without continuous supervision. She still had been unable to obtain a picture identification card, which was required for drug testing, or arrange transportation. She continued to be reliant on DCS for transportation to see Jeremiah. In addition, she still resided in a motel with a man who had a serious criminal history. The social worker opined that Mother’s disability, almost life-long substance abuse, abusive relationships, and lack of family support prevented Mother from caring for Jeremiah.
In addition, DCS staff expressed concern about Mother’s visits with Jeremiah. Mother appeared to lack the maternal instincts necessary to recognize and meet Jeremiah’s needs. She generally would not initiate any affection toward Jeremiah and would not kiss him unless someone told her to. She also did not appear to have the reasoning skills required to solve daily problems. During one visit, Jeremiah began to choke on his cereal, but Mother did not recognize there was a problem and had no reaction. During another visit, Jeremiah did not want to be separated from the foster mother and began to cry as soon as the foster mother gave him to Mother; Mother failed to console him. The relationship between Mother and Jeremiah seemed awkward and did not appear to come naturally. The social worker opined Mother could not care for Jeremiah without continuous supervision, and no program with continuous supervision was available. The social worker recommended terminating Mother’s services and stated that additional reunification services would not change Mother’s situation.
Meanwhile, Jeremiah had adjusted well to his foster parents, who had provided a nurturing, loving, and stimulating home environment for him. He was eating and sleeping well; the foster family was enjoying having him in the home and treated him like part of the family.
The contested 12-month review hearing was held on July 20 and 21, 2006. Following testimony from the social worker and Mother, the juvenile court terminated Mother’s services and set a section 366.26 hearing.
On July 28, 2006, Mother filed a notice of intent to file a writ petition. However, on September 21, 2006, this court dismissed Mother’s case after she failed to timely file her petition.
In an adoption report filed November 2, 2006, the social worker recommended terminating Mother’s parental rights, finding Jeremiah was likely to be adopted. Jeremiah had been living with his prospective adoptive parents for 19 months, and they considered him to be their son. Jeremiah and the prospective adoptive mother had formed a loving and secure bond. In addition, the prospective adoptive parents’ two natural children had accepted Jeremiah as part of the family and treated him as their little brother. The prospective adoptive parents wished to adopt Jeremiah and had their own home and adequate financial resources.
On November 28, 2006, Mother filed a section 388 petition or a request to change court order (form JV-180) requesting that the court reinstate reunification services. Attached to the petition were letters from her counseling groups, various attendance records, and a handwritten note indicating Mother had moved into a sober-living group home. In response, DCS noted that all those facts were known at the time of the 12-month review hearing, but none amounted to a change in circumstances, and Mother’s inability to parent a child remained unresolved. DCS argued that none of Mother’s efforts or completion of her case plan addressed Mother’s parenting skills and ability to provide for Jeremiah.
In December 2006, Mother provided the court with a second psychological evaluation. The evaluation concluded that Mother “presented overall as simplistic and psychologically naïve with a tendency to view the world in extremes.” The evaluation did not contain an impression of Mother’s ability to parent a child, but the results suggested Mother had a “[p]ronounced use of denial and repression, poor insight, and deliberate defensiveness.”
On January 12, 2007, the court held the section 388 hearing in combination with the section 366.26 hearing. Mother testified that she had stopped using drugs in December 2004; that she had her own income and paid for rent, storage, and food each month; that she had been living in a sober-living facility for one month; that she had been using public transportation to visit Jeremiah three times a month; and that she had been attending substance abuse meetings. She also claimed that Jeremiah gave her physical affection during visits and saw her as his mother and that she would be willing to follow any court or DCS orders to reunify with her son. Mother admitted, however, that she wanted additional counseling to assist her in her parenting skills and to learn how to properly care for Jeremiah.
The court denied the section 388 petition, finding that even though Mother had made progress on her case plan, she was not in a position to properly care for Jeremiah. The court also found Jeremiah was adoptable and terminated parental rights.
II
DISCUSSION
Mother claims that the juvenile court abused its discretion in denying her section 388 petition.
Initially, we note to the extent Mother argues that reunification services were inadequate, we find Mother waived and forfeited this issue. First, she failed to object to the reasonableness of services below. “Many dependency cases have held that a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. [Citations.] As some of these courts have noted, any other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. [Citations.]” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339, and cases cited therein; see also In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) This policy applies full force to the instant case, as neither the court nor DCS was put on notice that reunification services were inadequate, even though Mother had ample opportunity to object to it. Thus, Mother’s attempt to challenge the adequacy of reunification services is an attempt to raise a new issue which was not presented to the juvenile court. We find the issue waived, and we need not consider it further. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [“ . . . ‘[a] party is precluded from urging on appeal any point not raised in the [juvenile] court’”].)
Second, Mother failed to challenge the July 21, 2006, order, in which the juvenile court found services provided to Mother were reasonable, in a writ petition. Section 366.26, subdivision (l) provides: “(1) An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] . . . [¶] (2) Failure to file a petition for extraordinary writ review within the period specified by rule . . . shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.” Hence, Mother forfeited her right to raise the issue of adequacy of reunification services in the instant appeal. (In re S.B., supra,32 Cal.4th at p. 1293; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151-1160; In re Dakota S., supra, 85 Cal.App.4th at p. 502; §§ 395 and 366.26, subd. (l).)
“Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture,’ because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the ‘“intentional relinquishment or abandonment of a known right.”’ [Citations.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Dependency matters are not exempt from this rule. (See, e.g., In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to obtain supervising agency’s assessment of prospective guardian under § 366.22, subd. (b)]; In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1338-1339 [failure to request court to order bonding study]; In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [failure to challenge setting of § 366.26 permanency planning hearing when court determined that no reasonable reunification efforts were made].
Turning to Mother’s challenge to the juvenile court’s denial of her section 388 petition, we find Mother’s claim unmeritorious. A parent may petition the court for a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (c); Cal. Rules of Court, rule 5.570(e).)
Whether the juvenile court should modify a prior order rests within its discretion, and its determination may not be disturbed unless there has been an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (Ibid.) When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the lower court. (Ibid.)
Here, Mother has not offered any evidence tending to prove a change in circumstances. She argues her continued attendance in her group counseling sessions constituted “significant changed circumstances . . . .” However, the juvenile court was aware of Mother’s case plan and her counseling requirements at the 12-month review hearing, so her continued involvement would not constitute anything new for the court to consider. Mother did not present any evidence in her section 388 petition that was not already known to be true at the 12-month review hearing; rather, it showed that Mother was continuing in her case plan. The court had already found that though Mother had made progress in her case plan, her involvement with counseling and the other components of her case plan had been ineffective in alleviating her lack of parenting skills or showing that she could adequately care for Jeremiah without full supervision. In fact, Mother still did not have an adequate home for Jeremiah and could not show she could manage money, have a steady income or support system, or adequately provide and care for Jeremiah.
Mother cites the three factors to consider in determining a section 388 petition identified in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.) and contends that all three factors weigh in her favor. Kimberly F., however, is a case involving entirely different facts -- a cluttered, unsanitary home that was later cleaned up, rather than over 25 years of chronic drug dependency, incarcerations, loss of children to the dependency system, and mental disabilities. In Kimberly F., the main issue was changed circumstances. (Id. at p. 526.) Conditions in the home were improving by the time of the 18-month review hearing; by the time of the permanency planning hearing, the home was safe and clean. Moreover, there was a strong bond between the mother and the children, and the mother had a substantial amount of unsupervised visitation. In reversing the juvenile court, the court in Kimberly F. noted that the reasons for the dependency were not severe, the mother showed she could maintain a clean and safe home, and the children were closely bonded to her. (Id. at pp. 532-533.) The court also noted the decision to deny the section 388 petition was based largely and improperly on the juvenile court’s adoption of the “‘narcissistic personality’ rationale,” which the lower court applied to the mother there. (Kimberly F., at pp. 526-527, 532-533.) The appellate court also suggested it was less likely a parent who lost custody because of a drug problem could prevail on a section 388 petition, whereas in a “dirty house” case, which was present in Kimberly F., the chances of success were greater. (Kimberly F., at pp. 531, fn. 9, 532.)
In this case, as we have noted, DCS basically concedes changed circumstances, so the case hinges on the other prong of section 388: the child’s best interest. At any rate, the Kimberly F. factors are not exclusive. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) Even if they were, we would not find that they weighed mostly in Mother’s favor. Regarding these three factors -- “(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” (ibid.) -- we note that the evidence indicates that the strength of Jeremiah’s bond to his foster parents is much stronger than that to his biological mother. Moreover, Mother’s mental disabilities and drug problem that led to the dependency are extremely serious, long-standing problems, and even her many months of sobriety, some while living in a structured sober-living environment, have not yet shown those problems to be fully exorcised. Nor do the Kimberly F. factors address DCS’s evidence as to Mother’s lack of parenting skills or record of providing a stable home, which are additional crucial considerations for determining Jeremiah’s best interest. The other authorities Mother cites also do not aid her.
Even if we were to accept that Mother had made a sufficient showing of changed circumstances, the juvenile court still could conclude that Mother had failed to show that renewed reunification efforts at this juncture would promote Jeremiah’s best interests. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) When a parent files a section 388 petition on the eve of a section 366.26 hearing, the parent’s interest in the care, custody, and companionship of the child are no longer paramount. Rather, the focus shifts to the needs of the child for permanency and stability, and there is a rebuttable presumption that continued out-of-home care is in the best interests of the child. (Stephanie M., at p. 317.) Jeremiah was removed from Mother’s care after his birth. Following his birth, Mother failed to visit him for over two months. Jeremiah was placed with his foster parents in April 2005, almost immediately after his birth; at the time of the section 366.26 hearing, he had not lived with his mother for his entire life of about 21 months. In addition, there was no evidence of a bond between Mother and Jeremiah, and the visits were awkward. Mother appeared unnatural caring for Jeremiah, and she was not affectionate toward him. In contrast, Jeremiah did not want to be separated from his prospective adoptive mother and cried when Mother tried to hold him. There is a statutory recognition that children under the age of three years need stability and permanency as quickly as the dependency process can provide it. (§ 366.21, subd. (e).) It is clear that Jeremiah, who had been in a stable home for his entire life, was flourishing. He was attached to his foster mother and was well adjusted in his foster family. Mother has not established that Jeremiah’s need for permanency and stability would be advanced by an order for continued services or his return to Mother.
The juvenile court did not abuse its discretion in denying Mother’s section 388 petition.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., McKINSTER, J.