Opinion
B164945.
10-29-2003
In re JUSTIN S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CAREY C., Defendant and Appellant.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Sterling Honea, Deputy County Counsel, for Plaintiff and Respondent.
In this juvenile dependency case, appellant Carey C. (Mother) appeals the courts termination of her parental rights to her two sons, Justin S. and Devin S., under Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred in finding that the "benefit-contact" exception to termination under section 326.26, subdivision (c)(1)(A) does not apply. Mother also contends that the court abused its discretion by denying her petition under section 388 for modification of the courts reunification order as to Justin on the ground of "change of circumstance." We affirm.
All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
This case involves the two youngest of Mothers six children, Justin S. (born in April 1999) and Devin S. (born in August 2001). Mothers four older children were previously removed from her and have been adopted.
In March 2000, the Department of Children and Family Services (Department) filed a petition under section 300, alleging that Mother and her boyfriend, Timothy S. who is Justins father, had physically abused one of Justins older brothers, which put Justin at risk of suffering from similar abuse. Justin was detained by the court and placed into foster care. Mother and Timothy were permitted monitored visits.
In September 2000, the court declared Justin a dependent child. In reports filed prior to the adjudication hearing, the Department stated that Mother had a longstanding history of substance abuse, she had failed to reunify with her older children, Justins father had a criminal history dating back to 1990, including convictions for drug abuse, he was abusing Justin, and neither parent had insight into the seriousness of the abuse or its consequences.
In November 2000, the court conducted the dispositional hearing. The court denied Mothers request to regain custody of Justin, but ordered reunification services.
Mother appealed the courts jurisdictional and dispositional orders as to Justin. We affirmed the courts orders in an unpublished opinion dated October 14, 2001 (case No. B146195).
On September 6, 2001, one week after Mother gave birth to Devin, the Department filed a section 300 petition on his behalf, alleging that Mothers history of drug abuse rendered her incapable of caring for Devin, and that Devins father, Timothy, was currently incarcerated on a drug charge. The petition also alleged that Timothy had an extensive criminal history, including arrests and/or convictions for robbery, grand theft, burglary and possession of a controlled substance. The court detained Devin, but allowed Mother to have monitored visits with him and to continue breast feeding him.
On November 6, 2001, the court terminated Mothers reunification services as to Justin. In January 2002, after finding Devin to be a dependent child, the court also terminated Mothers reunification services as to Devin.
We denied Mothers writ petition challenging this termination of reunification services in an unpublished opinion dated April 3, 2002 (case No. B154421).
We denied Mothers writ petition challenging this termination of reunification services in an unpublished opinion dated May 23, 2002 (case No. B155680).
On April 29, 2002, pursuant to section 388, Mother filed a petition for modification of the courts order terminating reunification services as to Justin, on the ground of "change of circumstance." Mother identified as her changed circumstances that she had completed parenting, domestic violence and self-esteem classes, participated in individual counseling, consistently visited Justin since 1999, and had obtained gainful employment. She asked that reunification services be reinstated and that she be permitted unmonitored overnight weekend visits with Justin.
The court set the hearing on Mothers section 388 petition for the same time as the permanent plan hearings for both Justin and Devin under section 366.26, which took place on October 17 and December 2, 2002. Martha L., the prospective adoptive mother of both boys, testified that Devin had been placed in her home two weeks after his birth and that both boys had lived with her about a year. For the first six months the boys lived with Martha L., Mother visited them one to two times a week, and Martha L. always monitored the visits. Mothers visits became somewhat more sporadic between April and August 2002, when she moved to Montana. Since moving out of state, Mother visited the boys only once prior to the October 17 hearing, on the day before the hearing, along with their father. Thereafter, she visited the boys once in November. Martha L. testified that she and her husband wanted to adopt both boys.
Mother testified on December 2, 2002. She stated that the boys were happy to see her when she visited and that Justin called her "Mommy." She moved to Montana in August 2002 to find a job and become more stable. But she admitted that she was unemployed, stating "every time I get a job — I get a job I lose it." By this time, Mother had married the boys father and was living with her mother-in-law in a one-bedroom house. Mother testified that she saw the boys father, who was living nearby with his brother, "every day" and that they were trying to "work things out." Mother admitted that she had not participated in any parenting or anger management classes, individual counseling or drug testing since April 2001.
On December 19, 2002, after taking the matter under submission, the court terminated Mothers parental rights and denied her section 388 petition. The court found by clear and convincing evidence that the boys were adoptable and that there was no credible evidence that the boys would benefit from continuing a relationship with Mother. The court also found that Mother had not changed her ways in that she still maintained a relationship with the boys father who "shares the same problems that Mother has," and that her visits with the boys had been nonexistent in the prior three months because she voluntarily moved out of state. This appeal followed.
DISCUSSION
The Court Properly Denied Mothers Section 388 Petition
Mother contends that the juvenile court abused its discretion by denying her section 388 petition, in which she requested the court to modify its prior order terminating reunification services as to Justin. Under section 388, subdivision (a), a parent may "upon grounds of change of circumstance or new evidence," petition the court in which a child was found to be a dependent for a hearing "to change, modify, or set aside any order of court previously made." Under subdivision (c), if it appears that the best interests of the child may be promoted by the proposed change of order, the court shall order that a hearing be held. "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the childs best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47; see also Cal. Rules of Court, rules 1432(f).) We will not reverse the decision of the juvenile court unless the parent establishes that the court abused its discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
The court terminated reunification services as to Justin on November 6, 2001. Mother filed her section 388 petition on April 29, 2002. The only circumstance Mother identified that had changed during that six-month time period was that she had obtained an hourly wage job. But at the December 2002 hearing on her petition, Mother admitted that she was no longer employed because "every time I get a job — I get a job I lose it." Clearly, Mother was not self-sufficient or in a position to provide financially for the boys. Nor did the evidence otherwise establish that she could provide a stable, safe home for the boys. Mother did not have her own home, but was living in a one-bedroom home with her mother-in-law. Mother also testified that she was still seeing her husband, the boys father, "every day" and that they were trying to "work things out." This was the very same man who had abused Justin and spent the past decade in and out of prison on a variety of convictions.
Moreover, in both her petition below and in her appellate brief, Mother focuses on her history of participation in drug treatment, parenting and domestic violence programs and individual counseling. But the court was well aware of this history prior to the time it terminated reunification services. Thus, these activities do not constitute a "change of circumstance." In In re Jamika W. (1997) 54 Cal.App.4th 1446, the appellate court upheld the juvenile courts summary denial of the mothers section 388 petition, which had alleged that she was participating in a drug recovery program and was testing clean, and that she was receiving help for her developmental delays. The reviewing court noted that these facts were part of the ongoing record in the case with which the court was thoroughly familiar, not evidence of changed circumstances. (Jamika W., supra, at p. 1451.) In In re Angel B. (2002) 97 Cal.App.4th 454, 464-465, the appellate court went even further in finding the facts presented in the mothers section 388 petition that she had remained sober, completed various classes, obtained employment and visited regularly with her child were "not legally sufficient" to even require a hearing on her section 388 petition.
Furthermore, contrary to the allegations in her petition, Mother admitted at the hearing that she had stopped attending domestic violence and parenting classes, drug testing and individual counseling in April 2001, a year before filing her petition. We have no trouble concluding that the juvenile court did not abuse its discretion in finding that Mother failed to present evidence of changed circumstances.
We also conclude that Mother has not established that modifying the courts reunification order and allowing Justin to live with her would be in his best interest. In In re Kimberly F. (1997) 56 Cal.App.4th 519, upon which Mother relies, the court set forth three non-exhaustive factors to consider when addressing a childs best interests under section 388: "(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." (Kimberly F., supra, at p. 532.)
The problems which led to Justins dependency were indisputably serious: Mothers longstanding history of drug abuse and her physical abuse of her children. Indeed, by the time of Justins dependency, three of his older siblings had already been taken from Mother and adopted, and a fourth was on his way to being adopted. Although Mother had participated in various parenting and drug treatment programs over the years, as noted above, she had stopped doing so in April 2001. Additionally, Mother continued to maintain a relationship with Justins abusive father, who also had a history of drug abuse. Thus, the problems which led to Justins dependency had by no means been resolved.
Finally, with respect to Justins relative bonds of attachment, Mother had essentially stopped visiting him after she voluntarily moved to Montana in August 2002. There was no evidence that she ever planned to move back to California to be closer to Justin, or that he had trouble being separated from her. To the contrary, by all accounts, Justin and Devin were doing well with their foster parents, who wanted to adopt both of them.
Under these circumstances, we do not find that the trial court abused its discretion in denying Mothers section 388 petition.
The Court Did Not Err in Terminating Parental Rights
Mother also contends that the juvenile court erred in failing to find that the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A) did not apply. We disagree.
Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that it is likely the dependent child will be adopted, "the court shall terminate parental rights and order the child placed for adoption." A finding that the court has continued to remove the child from the custody of the parent and has terminated reunification services "shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).)
It is well established that a parent bears the burden of proving that termination would be detrimental to the child under section 366.26, subdivision (c)(1)(A). (Cal. Rules of Court, rule 1463(d)(3); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) This is not an easy burden to meet. "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement." (In re Jasmine D., supra, at p. 1350.)
Although reviewing courts have traditionally applied a substantial evidence test to a juvenile courts finding under section 366.26, subdivision (c)(1)(A), some courts have determined that abuse of discretion is the appropriate standard of review, but noted that the practical differences between the two standards are not significant. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) "`[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only `"if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did."" (Ibid .)
The Department concedes that Mother maintained regular weekly monitored visits with Justin and Devin until she moved to Montana in August 2002. Thereafter, Mother visited the boys only once in October 2002, on the day before the permanency plan and section 388 hearings, and only once in November 2002. It is undisputed that Mother moved out of state voluntarily and did so with knowledge of the upcoming hearings. There was no evidence to suggest that she planned to move back to California to be near the boys or that she planned to maintain regular visitation and contact with them. Indeed, since moving away, Mother only visited the boys twice in three months. In In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324, the court upheld termination of parental rights where a mothers visitation with her daughter had been sporadic during the six months preceding the selection and implementation hearing, even though at one time it had been consistent and positive. Arguably, Mothers prior monitored visits with her sons provided some incidental benefit to them. But by moving away, Mother demonstrated that she was more interested in trying to "work things out" with the boys abusive father than she was in trying to maintain significant contact with her sons. We conclude that Mother did not meet her burden of showing that she maintained regular visitation and contact with the boys.
We also conclude that Mother did not meet her burden of showing that Justin and Devin would benefit from continuing their relationship with her. The "benefit from continuing the [parent/child] relationship" exception has been defined to mean that the relationship promotes 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. (1994) 27 Cal.App.4th 567, 575.) "In other words, the court balances the strength and quality of the parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child 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 parents rights are not terminated." (Ibid .)
"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 childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the childs particular needs." (In re Angel B ., supra, 97 Cal.App.4th at p. 467, fn. omitted.)
Applying these factors here, we note that (1) Justin and Devin are too young to have any concept of what it is like to live with a biological parent, (2) Devin was only a week old and Justin only 10 months old when they were removed from Mothers custody, and neither child ever lived with her after that, (3) Mothers monitored visits with the boys may have been positive, but there is nothing in the record to indicate that the boys had a significant attachment to Mother or that the relationship was parental as opposed to merely familiar or friendly (see e.g., In re Angel B., supra, 97 Cal.App.4th at p. 468 ["[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt"]), and (4) there is no evidence that either boy has any particular needs that can only be met by Mother and not by the foster parents.
See also In re Jasmine D., supra, 78 Cal.App.4th at page 1348: "We do agree . . . that a parental relationship is necessary for the exception to apply, not merely a friendly or familiar one."
In short, there is no evidence in the record to support that either boy would be greatly harmed if his relationship with Mother was severed. To the contrary, if Mothers parental rights were not terminated, the boys would be denied a permanent, stable, adoptive family with each other, "something that the Legislature has determined to be detrimental, as shown by its ranking of adoption as more desirable than long-term foster care or legal guardianship, and its streamlining of the dependency system to promote the prompt adoption of infants whose parents have failed to reunify with older siblings." (In re Angel B. , supra, 97 Cal.App.4th at p. 468.)
Based on the evidence presented in the record, we conclude that this is not the extraordinary case where an adoption should have been foreclosed by the exception provided in section 366.26, subdivision (c)(1)(A).
DISPOSITION
The orders are affirmed.
We concur: BOREN, P.J. and ASHMANN-GERST, J.