Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J223293, A. Rex Victor, Judge. (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Melissa A. Chatin, under appointment by the Court of Appeal, for Defendant and Appellant Father.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Mother.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
William D. Caldwell, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut J.
Mother and father (parents) appeal from an order terminating their parental rights to their daughter L.C. under Welfare and Institutions Code section 366.26. Parents contend the trial court abused its discretion in denying their section 388 petitions and erred in failing to apply the beneficial parental relationship exception to termination of their parental rights. (§ 366.26, subd. (c)(1)(B)(i) [formerly § 366.26, subd. (c)(1)(A)].)
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
We conclude parents did not meet their burden of establishing that granting parents’ section 388 petitions was in L.C.’s best interest or that the parental relationship exception applied. Accordingly, we affirm the judgment.
1. Procedural and Factual Background
L.C. was detained by Children and Family Services (CFS) the day she was born in August 2008, after mother and L.C. tested positive for methamphetamine.
CFS filed a juvenile dependency petition alleging L.C. came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition alleged mother tested positive for drugs at the time of L.C.’s birth, had a chronic substance abuse problem, and had failed to reunify with her other eight children in two previous juvenile dependency cases. As to father, he failed to reunify with his two other children in a prior dependency case, and also had a chronic drug abuse problem. In addition, parents had no means of support and no place to live.
The September 2008 detention report stated that mother had been a party to juvenile dependency proceedings relating to her other children since December 2000. Over several years she had been offered reunification services. After failing to reunify, the court terminated her parental rights to six of her children in January 2003. Mother then gave birth to twin girls, who in November 2004, were also removed from mother due to general neglect. In the second juvenile dependency case, mother was again provided reunification services, but she failed to reunify with the twins and her parental rights were terminated in December 2005.
At the detention hearing, the trial court ordered L.C. detained in foster care. No reunification services were provided to parents under section 361.5.
In September and October, CFS filed with the court judicially noticed juvenile dependency documents regarding parents’ previous juvenile dependency cases involving their other children. These documents showed that mother’s parental rights were terminated as to her other eight children, and father’s parental rights were terminated as to his two daughters in March 2008, six months before the instant proceedings commenced.
In CFS’s September jurisdiction/disposition report, the CFS recommended parents not receive reunification services and that the court set a section 366.26 hearing (.26 hearing). Mother had been sober for 30 days and both parents were actively participating in rehabilitation programs. Father had tested positive for methamphetamine and amphetamine on the day of the detention hearing. Parents still had no means of support and they had rented a small house which was not safe, adequate or appropriate for an infant. The CFS further reported that during parents’ previous juvenile dependency cases, they had failed to abstain from taking methamphetamine and had lost their children to adoption.
In an addendum report filed in October, the CFS reported that in father’s previous dependency case, he had been offered reunification services, including substance abuse treatment, but failed to complete his services. He tested positive for drugs numerous times and admitted he was a life-long drug user. In addition, mother had told the social worker she previously had been enrolled in several substance abuse treatment programs in the past, and completed two, but had relapsed.
At the time of the addendum report in October, parents were participating in Drug Court and an outpatient substance abuse treatment program. Father reportedly had tested negative for drugs on four occasions. Parents remained unemployed but were looking for work. Father had not worked for 20 years and mother had held jobs sporadically. She would work for a short period and then quit and start a new job. Parents also did not have appropriate housing.
CFS filed a second addendum report in November 2008, detailing mother and father’s criminal histories. Mother’s criminal history from 2001 through 2006, included convictions for possession of controlled substances, unlawful camping, storage of personal property, building not used as zoned, and loitering. Father’s criminal history from 2000 through 2007, included two convictions for possession of controlled substances, building unsafe to occupy, unlawful camping, storage of personal property, building not used as zoned, loitering, petty theft, assault with a deadly weapon, trespassing and battery. The addendum report also stated that mother was terminated from a drug program in 1996, and completed a drug program in 1997.
At the time of the November addendum report, parents were living in a homeless shelter. The social worker concluded parents seemed sincere in their love for L.C. but had not progressed in changing their lifestyle. Parents had lived a transient lifestyle for many years, used drugs for many years, and failed to hold a job for any significant length of time. They currently remained unemployed and homeless. The social worker concluded adoption was in L.C.’s best interest. The trial court agreed, and at the November jurisdiction/disposition hearing, found true the petition allegations, denied parents reunification services and set a.26 hearing.
The CFS recommended in the March 2009 adoption assessment report termination of parental rights and adoption. L.C.’s prospective adoptive parent wished to adopt L.C., who was adjusting well to her new home. L.C. had only been there for a little over a month.
The CFS.26 hearing report stated that parents had initially visited L.C. twice a week at the CFS office, beginning in September 2008. Parents visits were appropriate and without incident.
In March and April 2009, mother and father filed section 388 petitions requesting the court to change its order denying reunification services based on changed circumstances. Mother stated in her petition that she had been drug free for seven months, was living in a home, and was employed. Mother had completed two months of the dependency Drug Court, completed a substance abuse program, and tested negative for drugs in January and February 2009. She also had attended Narcotics Anonymous (NA) meetings.
Father stated in his petition that he also had completed a substance abuse program, was in compliance with his aftercare program, tested negative for drugs in January, February, and March 2009, was attending NA meetings, and was employed.
In an interim report filed in April 2009, the CFS recommended termination of parental rights and adoption. The CFS noted that mother had a 20-year history of drug abuse, homelessness and criminal activity. Eight of her children had been removed and placed for adoption through the dependency process. A ninth child was emancipated from the system. Mother had been provided with a myriad of reunification services, including drug treatment programs. Mother had been unable to remain sober and had reverted to a transient lifestyle. While mother was currently working, her job consisted of working for In-Home Support Services, caring for her mother three days a week. In addition, she was renting a room, had completed a six-week parenting class, and had two clean drug tests.
The section 388 petitions were heard the same day as the.26 hearing, on April 21, 2008. It was stipulated that the same evidence would be considered for both matters. Mother testified that she was currently employed as an in-home caretaker for the elderly, and also worked for Aramark at concessions stands. She had only worked at one event for Aramark. Parents were renting a room in a house and saving for a down payment for a home.
Mother further testified parents were attending a program in which they learned life skills and anger management. Parents also completed a four-month drug abuse program. Mother was currently in aftercare. Since 1995, mother had attended three inpatient programs. She had been sober for almost eight months. After one of the previous inpatient programs, mother had relapsed a few months after leaving the program. She had used methamphetamine for 13 to 15 years, during which time she had been sober for only two months, with the exception of her most recent period of sobriety.
Mother acknowledged none of her 10 children were in her custody. Mother had been visiting L.C. once a month for two hours and claimed L.C. recognized her as “mommy.”
The social worker testified that parents’ visits went well but, based on mother’s past history, she would like to see her sober for a longer period of time. L.C. was placed with her caretaker in January 2009, and had closely bonded to her caregiver, with whom she spent a significant amount of time.
Father testified he recently began working for Aramark and was working at a homeless shelter doing maintenance and intake. He had completed an alcohol and drug program and was attending an aftercare program Father acknowledged he was a drug addict, with a 20-year drug history, but had been sober for the last eight months. Father stated that during the past two decades he had lived mostly as a transient but also had lived on the properties where he was providing maintenance. He claimed at one time he had owned his own business and a had a college degree.
After listening to the testimony and closing arguments, the trial court denied parents’ section 388 petitions. The court stated that parents’ circumstances were changing but this was not sufficient to grant their petitions requesting reunification services. The court concluded granting the petitions was not in L.C.’s best interest. After denying the petitions, the court terminated parental rights and selected adoption as L.C.’s permanent plan.
2. Section 388 Petitions
Parents contend the trial court erred in denying their section 388 petitions. They claim that their circumstances significantly improved after removal of L.C. from their custody, and it was in L.C.’s best interest to grant their petitions and provide them with reunification services, rather than terminating parental rights.
We review the juvenile court’s order on a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Section 388, subdivision (a) provides, “Any parent... may, upon grounds of change of circumstance or new evidence, petition the court... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” A parent must establish: (1) that there is either a change of circumstance or new evidence; and (2) that the proposed change from the previous order is in the child’s best interest. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) In other words, “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.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
The record indicates parents made admirable progress in turning around their lives for the better, after a long history of living a lifestyle of drug abuse, transiency, unemployment, and also, between the two of them, losing 10 children through the juvenile dependency system. Unfortunately, the trial court found that parents’ improved lifestyle had not lasted long enough to constitute changed circumstances, as opposed to changing circumstances, within the meaning of section 388. Eight months of sobriety and making a concerted effort to live a clean, productive, law abiding life was a good start but simply not sufficient to convince the trial court that parents would not revert to their old ways of drug abuse, transiency, and unemployment.
Such finding does not constitute an abuse of discretion. Delaying adoption in order to give parents a chance to unify with L.C., jeopardized L.C.’s opportunity to live in a stable, permanent home with a prospective adoptive parent, with whom L.C. had closely bonded. The trial court reasonably concluded the risk of parents relapsing and exposing L.C. drugs, homelessness, poverty, and crime was simply too great to jeopardize L.C.’s opportunity to live in a happy, secure, permanent home without having to endure being torn from one caretaker and placed with parents, and then possibly removed from parents, if they relapsed, and placed in another home.
While parents argue they are only asking for reunification services at this point, not custody, parents’ history of failing to reunite with their other children and their past record of many years of drug abuse and relapsing, despite multiple attempts to rehabilitate, does not bode well for them and provided good reason not to delay L.C.’s adoption any longer. Parents’ recent success in remaining sober and attempting to change their lives is a big step in the right direction but not enough to warrant jeopardizing L.C.’s chances of living in a permanent, stable home. The risk is particularly great due to parents’ substantial past problems and their relatively short period of sobriety. This, in combination with the fact that parents did not have a suitable home, their current employment was tenuous and brief, and they previously failed to reunite with their other children, provided a valid basis for the court denying parents’ section 388 petitions.
Even though parents’ circumstances improved, the trial court did not abuse its discretion in finding that their circumstances had not changed enough and granting the section 388 petitions was not in L.C.’s best interest.
3. Beneficial Parental Relationship Exception
Parents contend the trial court erred in ruling the beneficial parental relationship exception to terminating their parental rights did not apply. We disagree.
Section 366.26, subdivision (c) provides that when a juvenile court determines that a child is likely to be adopted, the court shall terminate parental rights and select adoption as the child’s permanent plan, unless it finds that one of the exceptions specified in subdivision (c)(1)(B)(i)-(v) provides a “compelling reason” for finding that termination of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1); see In re Celine R. (2003) 31 Cal.4th 45, 53.) The burden is on the parent to show that termination of parental rights would be detrimental to the child under one of these exceptions, such as the beneficial parental relationship exception. (In re S.B. (2008) 164 Cal.App.4th 289, 297 (S.B.).)
The beneficial parental relationship exception applies under section 366.26, subdivision (c)(1)(B)(i) when “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The “benefit” to the child, which would justify an exception to the termination of parental rights, is not, however, some mere incidental benefit, but must be a benefit which “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; see also S.B., supra, 164 Cal.App.4th at p. 297.) Frequent and loving contact is not enough, in and of itself, to establish the exception under section 366.26, subdivision (c)(1)(B)(i). (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)
The court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and 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 parent’s rights are not terminated. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; S.B., supra, 164 Cal.App.4th at p. 297.)
Interaction between a natural parent and child will always confer some incidental benefit to the child. 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 Angel B. (2002) 97 Cal.App.4th 454, 468.) “In other words, for 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. [Citation.]” (Ibid.)
“Once the court determines a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the... exceptions listed in section 366.26, subd. (c)(1). [Citation.] We must affirm a trial court’s rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Parents did not meet their burden of proof in establishing that the parental relationship exception applied. They argue the exception applies because they maintained regular ongoing contact with L.C., visiting her as often as was permitted by the court and CFS. The visits went well and mother claims L.C. recognized her as “mommy.” But this is not enough to overcome the preference for adoption.
The factors to be considered when determining whether a relationship is important and beneficial under section 366.26, subd. (c)(1)(B)(i) 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.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)
Here, these factors support the trial court’s finding that parents’ relationship with L.C. was not sufficiently beneficial to overcome the adoption preference. L.C. was removed from parents at birth and was an infant at the time of termination of parental rights. She had never been in parents’ custody. At the time of the.26 hearing L.C. was an infant and parents were visiting her only a couple hours once a month. Although parents’ interaction with L.C. was positive, in reality, the visitation was little more than that of a friendly visitor or friendly nonparent relative. There was no evidence of formation of a close parent/child bond.
As to L.C.’s particular needs, most of all, she needed a permanent, stable, loving home, and there was the significant risk that ultimately parents would not satisfy this need because it had been a relatively short period of time since they had given up their life of drugs and homelessness, and they had lost, between the two of them, 10 children to adoption through the juvenile dependency system. Under these circumstances, we cannot say the trial court erred in rejecting the parental relationship exception to terminating parental rights.
4. Disposition
The judgment is affirmed.
We concur: Richli, Acting P. J., King, J.