Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. J-1252425, James E. Herman, Judge.
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, Toni Lorien, Deputy Counsel, for Plaintiff and Respondent.
PERREN, J.
A mother appeals orders of the juvenile court denying a modification petition (Welf. & Inst. Code, § 388) requesting that her son be returned to her care and terminating her parental rights (§ 366.26). We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
B.P. is the mother of J.P. J.P. was detained by respondent Child Welfare Services (CWS) as the result of a probation search of the residence of mother's parents. On January 23, 2008, police officers found J.P., then three years old, in a small, unventilated shed where mother and her boyfriend were smoking methamphetamine. Mother, both of her parents, her boyfriend, and J.P. all tested positive for methamphetamine.
Mother was charged with child endangerment and was sentenced to 180 days in jail as a condition of five years probation. J.P. was placed in the care of a foster family. The foster parents reported that several baggies with methamphetamine residue were found in J.P.'s bag.
A disposition report dated March 17, 2008, summarized an interview with mother. She stated she had an eighth grade education, had run away from home with her then-boyfriend at the age of 14 because of her parents' drug abuse, and she had little work experience. CWS recommended that family reunification services be provided to mother.
The six-month review report dated August 11, 2008, stated that mother was currently incarcerated but that she was working steadily on as many programs as were available while incarcerated, including anger management classes, group and individual counseling, NA meetings, and parenting packets. She maintained weekly telephone contact with J.P. The report states: "It is believed that the mother... has made significant progress in resolving problems that led to the child's removal from the home...." The court ordered reunification services be provided to mother immediately upon her release from custody.
The 12-month review report dated February 9, 2009, stated that mother was living in an in-patient drug treatment program until January 22, 2009. She was asked to leave due to self-medicating with another resident's medication and not being truthful about it. Mother was satisfactory in meeting service objectives and was consistently testing negative for illegal substances.
J.P. was moved to another foster home due to a sexual incident that occurred with a younger child in the previous foster home. Other incidents of inappropriate sexual conduct also were reported. J.P. also engaged in behaviors such as picking his nose until bloody and picking at scabs until they bleed. J.P. explained that "he likes to see blood."
The psychological evaluation in the report concluded that B.P. expressed a need for and a willingness to change as well as a realistic appreciation of the help afforded to her. The March 24 addendum report confirmed her love for J.P., recognized the bond that existed between mother and child, and recommended continued reunification. A report filed July 20 was critical of B.P.'s relationship with her new boyfriend, R.S., but acknowledged his efforts to remain crime free. That report concluded that B.P. was bonded with J.P. It also noted that she was pregnant with R.S.'s child.
Addendum reports filed July 20, and July 30, 2009, stated that a condition of B.P.'s probation permitted mother to see J.P. only while participating in a court ordered reunification case plan. "The previous recommendation the Department submitted to the court of returning the child to the mother under family maintenance will be in violation of her current probation terms." The report also stated that mother had obtained employment, housing, and was beginning substance abuse treatment, but had made minimal progress in other areas. CWS recommended that family reunification services be terminated. The July 30 report contained a lengthy description of R.S.'s extensive criminal record but noted that he "demonstrated an understanding of parenting skills higher than [B.P.] demonstrated.... It is clear that the child enjoys time with [R.S.]."
A subsequent addendum report, filed on October 8, 2009, contained additional information on the visitation between mother and J.P. and on mental health concerns regarding J.P. The report noted numerous instances of poor parenting demonstrated by mother, including having little interaction with J.P. during visits, allowing him to play out of her sight, not initiating communication or interaction with him, and not planning activities for their visits. The case worker noted that "[J.P.] was shut down and reserved in the shelter while in the foster home he was active and talkative, appearing to be content and happy with his surroundings."
After a contested review hearing on October 8, 2009, the court found that "[m]other and minor have a close bond... [m]other has made significant and consistent progress in her treatment and attendance... program, " and "[m]other has made consistent and regular visit[s] to the minor." The court ordered additional reunification services for mother and requested additional information about R.S.
An addendum report filed February 11, 2011, requested an order that R.S. be considered unsafe and not be permitted visits with J.P. The report contained additional details of R.S.'s criminal history and stated that R.S. had struck mother during a visit and had threatened to hit pedestrians with his car. A status review report filed that date again requested that reunification services for mother be terminated and that a section 366.26 hearing be scheduled. The report notes that mother continued to have clean drug tests, but lacked necessary parenting skills. The social worker stated she believed that "it is simply not within [mother]'s capabilities to fully achieve what is expected of her in order to provide a safe and stable environment for her son." The court ordered that R.S. have no contact with J.P.
On February 26, 2010, J.P. was moved to a new foster home due to his behavior. An addendum report filed March 3, 2010, stated that B.P. had not shown she can live independently and lacked adequate coping mechanisms to manage stress. She had not attempted to obtain her GED and would not be able to obtain employment to support her children. The social worker indicated concern that mother became involved with R.S. during reunification even though he had a criminal background including domestic violence and substance abuse. The report concludes: "[J.P.] is a very lovable and intelligent child. He needs structure and strong parenting that will promote his development and positive self image due to his struggles with impulse control. This will not be the case if returned to [mother] at this time."
On March 4, 2010, with B.P.'s concurrence, the court ordered that reunification services be terminated and a section 366.26 hearing be scheduled. On April 22, 2010, mother filed a request to change court order requesting that visitation with J.P. be increased. The court denied the request without prejudice. On May 5, 2010, CWS filed a request to change court order requesting that mother's visits with J.P. not be increased because visitation had become detrimental to the emotional wellbeing of the child, as demonstrated by sexual incidents, extreme tantrums, pulling hair, picking at his fingers, yelling and aggressive behavior when returned to his foster home after visits with B.P. On May 20, 2010, the court ordered that visitation remain at twice a month for two hours. At that time, the court stated that mother was not to include her newborn child in the visits with J.P. due to his bad behavior after visits with B.P. and statements J.P. made concerning the baby and his mother.
On June 25, 2010, mother filed a request to change court order pursuant to section 388 requesting J.P. be returned to her custody and care. On August 20, 2010, a 366.26 report was filed recommending that mother's parental rights be terminated and that J.P. be adopted by his current foster family. The social worker stated that J.P. had bonded with his current foster family and they wished to adopt him. An addendum report was filed on that date containing the social worker's opinion that J.P. could not be safely returned to mother's care due to her lack of parenting skills, R.S.'s criminal history, and J.P.'s expressed jealously of the newborn baby.
After a combined hearing on the modification petition and section 366.26, the court denied the modification and terminated parental rights. Before ruling, the court summarized mother's history during the dependency proceeding and the evidence received at the hearing. Following summation by the parties, the trial court continued the matter to enable it to review case law and the substantial amount of evidence presented by the parties. At the continued hearing, the court denied the modification petition finding that "the circumstances are changing, but they have not changed within the context of what the case law addresses." The court acknowledged that mother had made some progress in coming to terms with her addiction. On the other hand, she had not made significant progress in improving her parenting.
The court found that J.P. was adoptable by clear and convincing evidence. Using the best interests of the child standard, the court found that severing the parent/child relationship would not deprive J.P. of a substantial positive emotional attachment such that he would be greatly harmed even though the record showed an emotional attachment between mother and child. The court noted that B.P. had been provided with lengthy reunification services without successfully reunifying with J.P. and the Legislature has stated a strong preference for adoption and permanency. The court further noted that the child was 6 years old, had lived apart from B.P. for over two and a half years, and the child's emotional response to visitation was not always positive. The court acknowledged the willingness of the current foster parents to adopt and their strong desire to do so. The court stated: "It's as if the child had been with them for much longer than the six months that the child has actually been placed."
On appeal, mother asserts that the court erred in denying the modification petition because the evidence shows that circumstances had changed and the court's order is not consistent with its factual conclusions and is based on speculation. Mother also asserts her parental rights should not be terminated because the evidence supports the conclusion that placement with her would be in the child's best interests.
DISCUSSION
The Section 388 Modification Petition
"[W]hen a court has made a custody determination in a dependency proceeding, '"a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."'... '... 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 trial court."'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Section 388 authorizes a juvenile court to modify a prior order if a parent shows a change of circumstances or new evidence and establishes that modification is in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Eric E. (2006) 137 Cal.App.4th 252, 260.) The court has broad discretion in resolving a petition to modify a prior order. Its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. (Stephanie M., at p. 318.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Section 388 states in part: "(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court...."
In determining the best interests of the child, the juvenile court considers the reason for the dependency, the reason the problem was not overcome, the strength of the parent-child and child-caretaker bonds, the length of time the child has been a dependent, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason it was not made sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.)
Mother asserts the court abused its discretion in denying her modification petition because she met her burden of showing changed circumstances, the court's order denying the petition is not consistent with its factual conclusions, and the court's decision was based on speculation instead of evidence. We disagree.
The court gave an extensive summary of the evidence, including that contained in the reports submitted by CWS and the testimony of witnesses at the hearing, and concluded that although mother had successfully completed her substance abuse treatment, was working two jobs and saving money to rent an apartment, she had difficulty providing J.P. with supervised activities and redirection. The court noted that CWS was concerned that B.P. "does not appear to possess the instinct of a parent." However, the court also noted that "her parenting, by and large, appears to be appropriate." The court also indicated his concerns about R.S.'s criminal background. The court concluded that, although B.P. had learned to address various issues, "the dilemma is that we're out of services and the J.V. 180 is asking for return."
These findings are based on evidence, not speculation, and show the weighing and balancing a juvenile court must do when determining what is in the best interest of the child. Mother succeeded in some important aspects of her case plan--she stayed drug free for more than two years, she maintained consistent visitation with J.P., she had a job and she was saving money to rent an apartment. On the other hand, evidence from CWS indicated that she had inadequate parenting skills with respect to J.P., his foster parents reported he was angry and demonstrated other disturbing behaviors after some of his visits with her, and she became involved with a man with an extensive criminal background, including drug abuse and domestic violence, and he engaged in bad behavior after visits with her.
The record here shows no arbitrary decision, but rather a careful consideration of all the evidence by the court. After weighing the evidence, the trial court concluded that J.P. would be at risk if returned to his mother and that maintaining his current placement would be in the child's best interest. This is a reasonable exercise of discretion that we will not disturb. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Parental Benefit Exception
Mother contends the court erred in terminating her parental rights because its findings were based on speculation, not evidence.
We review an order terminating parental rights and ordering adoption under the substantial evidence test. Under this standard of review, we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the juvenile court's order, resolving all conflicts in support of the determination and indulging all legitimate inferences to uphold the lower court's ruling. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) If there is substantial evidence to support the juvenile court's order, we must uphold the order even if other evidence supports a contrary conclusion. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Section 366.26, subdivision (c)(1)(B)(i) states that parental rights shall not be terminated if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The parent bears the burden of proving the exception. Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) To meet his or her burden of proof, a parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child.... The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
A parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent, or that the parental relationship may be beneficial to the child only to some degree. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The parent must also show that continuation of the parent-child relationship will promote "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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) The juvenile court may reject a parent's assertion of the exception simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) "[I]f an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
Here, mother did not meet her burden of proof. Frequent and loving contact with a child in these circumstances is insufficient to meet the requirements of the exception. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The court found that mother did not provide sufficient evidence that the strength of her relationship with J.P. outweighed the benefits of a stable home with foster parents who wanted to adopt him. (In re Dakota H., supra, 132 Cal.App.4th at p. 228.) The reasons stated by the court in denying the modification petition support termination of mother's parental rights.
Mother's argument that the court based its order on speculation because J.P.'s adoption by his foster parents was not a certainty is erroneous. It is well established that a finding of adoptability does not require that a particular adoptive family be "waiting in the wings." (See, e.g., In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, and cases cited.)
Substantial evidence supports the juvenile court's finding that adoption is in J.P.'s best interests. (See, e.g., In re Zachary G. (1999) 77 Cal.App.4th 799, 811 ["When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption"].)
Mother's argument that the decision must be reversed because the court did not make a finding that the child's best interests would be served by terminating parental rights is belied by the record. The court made extensive factual findings on the issue.
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.