Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK61016, Jacqueline Lewis, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Order is affirmed.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel and Frank J. Da Vanzo, Deputy County Counsel, for Plaintiff and Respondent.
CROSKEY, Acting P. J.
In this juvenile dependency case, Tammy I., the mother of the dependent minor child Lorraina T. (Mother and Lorraina, respectively), challenges the trial court’s denial of her Welfare and Institutions Code section 388 petition and the court’s termination of her parental rights. Mother asserts the court abused its discretion when it denied her section 388 request for a home of parent order to herself or alternatively, a resumption of reunification services and unmonitored visits with the minor. Mother also contends that termination of her parental rights was an error because there is insufficient evidence to support the court’s finding that the minor is likely to be adopted, and because the evidence shows that termination of parental rights would be detrimental to the minor because Mother and the minor have maintained regular contact and the minor would benefit from continuing their relationship.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
Our review of the record shows that Mother’s contentions are completely lacking in merit. Therefore, we will affirm the decisions to deny her section 388 petition and terminate her parental rights.
BACKGROUND OF THE CASE
1. The Sustained Dependency Petition
Lorraina was born in December 2005, and the dependency petition was filed seven days later. The sustained petition alleges the following. Mother has a history of illicit drug and prescription medication use including the occasional use of cocaine, she used cocaine when she was pregnant with Lorraina, and she tested positive for cocaine two days before Lorraina was born. Mother’s substance abuse renders her incapable of providing regular care for the minor, endangers the minor’s physical and emotional health and safety, and creates a detrimental home environment. Lorraina’s siblings, Jake I. (born August 1993) and Gina I. (born January 1997), were currently dependents of the juvenile court because of Mother’s illegal drug use and because Mother and her male companion Timothy I., who is the father of Lorraina’s siblings, engaged in physical altercations in the presence of Jake and Gina, and such conduct by Mother endangered Lorraina’s physical and emotional health and safety.
2. Events in 2005
According to the detention report for the instant case, Lorraina’s two siblings came to the attention of the Los Angeles Department of Children and Family Services (the Department) in June 2005 with reports that Mother is addicted to drugs and was not sending the minors to school on a daily basis. However, the Department determined that Mother’s “reported depression and prior reports of domestic violence were . . . the primary concerns. The case was referred for Alternative Response Services and then closed by [the Department] as inconclusive.”
On September 23, 2005, the Department again received reports on the family, this time due to the above mentioned violent confrontations between Mother and the siblings’ father. Jake and Gina were detained on September 29 and placed with their paternal grandparents. On October 4, the dependency court ordered family reunification services of domestic violence counseling, parenting classes, individual counseling, and drug rehabilitation counseling with random testing. Mother was provided with referrals for those services. By the end of December, her sole compliance with the court ordered plan for reunification with Lorraina’s siblings was limited to drug testing twice and attending one parenting class.
After Lorraina was born, she fluctuated between mild and severe withdrawal symptoms and the Department authorized a hospital hold on her. On December 23 and 27, Mother asserted she had not used drugs in the past five or six months and thus could not understand how she could have tested positive for drugs two days before Lorraina was born. Mother was 39 years old at that time.
Mother’s prenatal doctor reported that Mother did not have prenatal care until September 14, her 22nd week. At that time, Mother told the doctor she used crack cocaine during her first trimester. A week before Lorraina was born, the doctor spoke with the man whom Mother said was the minor’s father, Carlos T., and he informed the doctor that Mother was using crack cocaine again.
At the time of the December 29, 2005 detention hearing, Lorraina was still hospitalized. The court found a prima facie case that Lorraina is a minor described by section 300 and should be detained. It placed temporary custody with the Department, and ordered the minor placed in shelter care. The Department was ordered to assist Mother with the same case plan that she signed on 12-21-05 for Jake and Gina. Monitored visits between Mother and Lorraina were ordered.
3. The January 19, 2006 Pretrial Resolution Conference
By the time of the January 19, 2006 pretrial resolution conference, Lorraina was living with her maternal aunt and uncle, Tiana and Jose R. Her siblings, Jake I. and Gina I., continued to reside with their paternal grandparents. Mother and the man asserted to be the minor’s father, Carlos T., were living together. Both before and after Lorraina’s birth, Mother told the social worker that Carlos is the minor’s father. Mother was reported to be in the process of obtaining a divorce from her husband, Timothy I., the father of Lorraina’s siblings.
Despite the fact that her December 19, 2005 drug screen was positive for cocaine, when the Department social worker interviewed Mother on January 6, 2006, Mother stated she had not used illegal drugs in four or five months. Nevertheless, Mother informed the social worker that she had enrolled in an outpatient treatment program at El Proyecto Del Barrio on January 4 and she provided the social worker with contact information for that agency.
The social worker also interviewed Carlos T. on January 6 at Mother’s apartment and he stated he and Mother began living together two weeks earlier so that he could help with Lorraina and support Mother’s efforts to maintain her sobriety. At that time she had been his girlfriend for over two years. Four days later Carlos T. was interviewed at the Department’s office. He stated Mother missed visitation with the minor on January 8 because the caregiver maternal aunt and uncle were leaving their home when Mother arrived. The social worker corrected him by informing him that Mother missed the visit because she arrived four hours late. He stated Mother had not used drugs since he moved in with her and she was going to her program. However the social worker informed him that Mother tested positive for cocaine on January 5, and on January 9 she missed her third day of treatment. Asked if he thought it would be appropriate to place Lorraina with him in Mother’s home given that he could not detect Mother’s current drug use, he stated he was going to break up with Mother, move back to his parents’ home and work on unifying with the minor independent of Mother. The social worker set up an appointment to assess the home of the paternal grandparents. At an interview with them the following day, they agreed that Mother’s contact with Lorraina should be limited because of her drug use, and they stated a willingness to accept the minor into their home with their son and assist him in caring for her. The Department recommended individual counseling, parenting education and frequent visitation for Carlos.
On January 13 the social worker confirmed Mother was admitted to a Glendale Adventist Medical Center on January 11 for detoxification and was expected to enter their inpatient treatment program when she was medically approved for it. However, later information from the Medical Center showed that although Mother completed the detoxification on January 13, her medical insurance would not cover the inpatient program and so she enrolled in a six-week outpatient substance abuse treatment program that required her participation Monday through Friday for three and one-half hours (1:00 to 4:30 p.m.) and Saturdays from 9:00 a.m. to 12:15 p.m., random drug testing, and three 12-step meetings each week. There was a one-year continuing care program after the six-week program was completed.
The caregiver aunt, Tiana R., told the social worker that she thought Mother was using drugs as recently as January 8 because Mother was four hours late for a visit and appeared unkempt. The aunt and uncle were reported to be taking excellent care of Lorraina and fully supportive of reunification efforts, but they also stated a willingness to provide a permanent home for the minor if reunification failed.
At the January 19 pretrial resolution conference, the court sustained the amended petition after Mother pleaded no contest to it. Noting that Mother had filed out a paternity questionnaire indicating that Carlos T. is the biological father of Lorraina and that she signed a paternity declaration at the hospital where the minor was born so stating the same, the court declared that Carlos T. is the minor’s presumed father (hereinafter, Father), and he submitted to the jurisdiction of the court. The court ordered monitored visits for Father and Mother, gave the Department discretion to liberalize visitation for both parents, directed the Department to submit a report addressing placement of the minor, and set a disposition hearing for February 2.
4. The Disposition Hearings
a. February 2 Hearing
The disposition hearing was held over three days. The Department’s report for the February 2 hearing states Lorraina continued to do well in the home of the maternal aunt and uncle and her cousins were enjoying assisting with her care. The maternal aunt had made great efforts to adjust her family’s schedule to meet the minor’s needs and had taken care to ensure that Mother and Father were afforded quality visitation.
Mother’s visits were scheduled on Sundays from noon to 2:00 p.m. and Wednesdays from 6:00 to 8:00 p.m. She had one visit since the hearing on January 19 and it went well. She stated she could not make a visit on January 25 because she had to attend a group meeting. She had participated in her outpatient substance abuse program since January 14 but then entered the inpatient treatment on January 26 and so a visitation schedule had to be arranged with the treatment center.
b. March 9 Hearing
The social worker’s report for the March 9 hearing states she had no contact with Mother since the February 2 hearing. Mother’s telephone did not appear to be in service, the social worker received no response to her mailings to Mother and to her attempt to contact Mother through the maternal aunt, and she did not find Mother at home when she went by Mother’s residence. Mother was not appearing for her Wednesday visits but did make some of her Sunday visits. On January 30 she completed six days of intensive extended outpatient substance abuse treatment but then she did not continue the program and she was discharged on February 2. She was not currently participating in any substance abuse, drug testing or counseling services.
According to reports about Father, he initially appeared to be doing better than Mother and for awhile it appeared that Lorraina would be placed with him. He was maintaining frequent contact with the social worker and he had moved out of Mother’s apartment and was living with his parents. He indicated a desire to have the minor released to him and continue living with the paternal grandparents who would care for the child while he is at work. His monitored, and then unmonitored, visits were reported by the caregiver maternal aunt to go well and he was visiting at least weekly.
The Department recommended that the minor be released to Father on the condition he continue to reside with the paternal grandparents and not with Mother, and he participate in parenting classes. However that recommendation was put on hold when Father was arrested on March 6 on domestic violence charges. Mother’s neighbor witnessed Father hitting Mother and called the police. Further, on March 4 when Father picked up Lorraina for his unmonitored visit, the caregiver maternal aunt became suspicious that he might be taking the minor to Mother’s residence because he indicated that he had been there prior to picking the minor up. The aunt drove by Mother’s residence after Father left with the minor and observed that Father’s car was parked there. The Department concluded Father had violated his visitation rights by allowing Mother to have contact with the minor. Based on those events, the court continued the disposition hearing to March 29 to give the Department time to determine if it would file a section 342 “subsequent petition.”
Section 342 states: “In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition. . . . [¶] All procedures and hearings required for an original petition are applicable to a subsequent petition filed under this section.”
A subsequent petition was filed on March 29. As sustained, it alleged that although Father is not an approved monitor for Mother’s visits with Lorraina, on March 4, during his scheduled unmonitored visit with the minor, he permitted Mother to have contact with the child by transporting her to Mother’s home in violation of court orders which permit Mother to only have monitored visits with the child. It further alleged that on March 6 Father broke into Mother’s home through a bedroom window, chased her outside and down the street, and violently assaulted her. Ultimately Mother pleaded no contest to the allegations in the subsequent petition and Father denied them. After he was release from his incarceration for assaulting Mother, he was deported to Mexico on immigration charges and thereafter the Department lost contact with him.
c. The March 29 Hearing
Mother finally contacted the social worker on March 13 to give her a new telephone number. Although she agreed to speak with the social worker on March 16 at 8:30 a.m. at her (Mother’s) home, she was not there when the social worker arrived. The social worker left numerous messages for Mother but Mother did not respond to them. The social worker also mailed a letter to Mother and made an unannounced visit to Mother’s home but Mother was not there. She also went to one of Mother’s scheduled visits with Lorraina but Mother did not appear for the visit. Mother was visiting the minor sporadically on Sunday afternoons and Wednesday evenings for two hours at the caregivers’ home.
At the disposition hearing on March 29, the court declared Lorraina a dependent of the court, removed custody from Mother and Father, continued suitable placement with the maternal aunt and uncle, ordered a family reunification plan for Mother of drug rehabilitation with random testing, parenting classes and individual counseling, and ordered family reunification services for Father of counseling, domestic violence group and individual counseling, and parenting classes. (Domestic violence classes and counseling were later ordered for Father when the subsequent petition was adjudicated.) Monitored visits were ordered for the parents. A date of June 16 was set for the section 366.21, subdivision (e) review hearing on the original petition.
The caregiver maternal aunt and uncle continued to be reported as providing the minor with excellent care, being fully supportive of reunification efforts, and cooperating completely with the Department. The social worker observed that Mother had not completed a drug rehabilitation program and was believed to still be using drugs. At Mother’s request, her visits with Lorraina were changed from the home of the caregivers to a Department office. At the Department’s request, the court made a referral to Regional Center for Lorraina because she was reported to be having muscular tremors.
6. The June 16 and August 10 Hearings
a. June 16
The Department’s report for the June 16 section 366.21, subdivision (e) six-month review on the original petition was a summary of the good and the bad in the case. According to the report, Lorraina continued to thrive at the caregivers’ home and they were sensitive to her prenatal drug exposure and responsive to her needs for extra soothing and decreased stimulation. Her cousins, her child care providers and her siblings were all reported to adore her. While the caregivers preferred that the minor reunify with Mother, they were prepared to adopt her if that did not happen and they had no reservations about the adoption. They were strongly bonded with the child and they appreciated that adoption is in the child’s best interests.
May 11 was the day the social worker finally made contact with Mother. Mother gave the worker a new telephone number because Mother’s prior number was disconnected as of the end of March. Mother continued to be out of compliance with her case plan and to deny that she has substance abuse issues.
Regarding Mother’s visitation with the minor, the Department’s report states that although the prior visitation schedule for Mother was made with her agreement (Wednesday evenings and Sunday afternoons at the caregivers’ home, two hours each visit), she only visited four out of a possible 34 times during the first four months of the child’s life—twice in January, once in February and once in March. Moreover, she always arrived late or left early. Although her visits were then changed to be at the Department’s office at her request, that was not logistically feasible for her or for the caregivers. So Mother suggested visits could be in the evening at a park by her home. The social worker monitored the first visit there and it went well. But then Mother stated such visits would conflict with a substance abuse program she planned to enroll in and so the visits were changed to a park near Lorraina’s child care facility and were to take place just before the minor was dropped off at child care. The social worker arrived at 7:45 a.m. to monitor the first visit on May 24 but Mother did not appear, nor did she ever contact the social worker to explain her absence or reschedule.
Regarding random substance testing, Mother was scheduled for drug testing through Pacific Toxicology 15 times. She tested negative twice, positive once for cannabinoids, and never showed for the other 12 tests. She also tested positive for El Proyecto del Barrio when she was briefly enrolled in their program in January. Although Mother told the social worker on May 11 that she had not been able to drug test because she lost her current picture identification and the testing site would not accept an expired picture identification, Pacific Toxicology informed the social worker that all of its test sites accept expired picture identification. Mother was in and out of three substance abuse programs in January, never staying in one more than a week. Months went by and then she went for an intake on May 31 for a program in Van Nuys (Van Nuys Alcohol and Drug Treatment). Her assigned counselor reported that Mother completed the first half of the intake on May 31 but said she had to leave and would return on June 1 to finish the intake. She never returned and never contacted her counselor at the program. The counselor told the Department social worker it was her impression that Mother was blaming others for her circumstances.
Regarding the order for individual counseling, Mother participated on two days in January at El Proyecto del Barrio but did not go back. She told the social worker she had an intake appointment on May 20 for other counseling but did not give the social worker contact information for the program.
As for parenting classes, on May 11 Mother told the social worker she had enrolled in parenting classes at Village Family Services and was attending the classes, but a check by the social worker revealed that was not true. She had only scheduled an intake appointment and had failed to keep it.
Mother asserted she only needed to visit with the minor, take parenting education, and drug test to be in compliance with her plan, but the social worker reminded her that she had been informed many times that she also needed substance abuse counseling and individual counseling. Despite her many positive tests, Mother stated she had not used drugs in years and she opined that her problem was really depression which kept her from being in compliance with her case plan. She also stated she needed a job. When the social worker offered to give her additional mental health resources, Mother declined the offer and said she would schedule counseling through her insurance.
In short, Mother was totally out of compliance with her case plan. She had not managed to comply with any of it, even maintaining visitation with her child. The social worker summarized that Mother had developed a pattern of enrolling in programs before court dates and then dropping out. The social worker believed Mother was still using drugs, and Mother’s family members reported that Mother had spent over $50,000. An earlier Department report states Mother obtained income from selling her share of a house to her husband from whom she was obtaining a dissolution of marriage.
The social worker recommended that the parents’ reunification services be terminated, that a section 366.26 hearing be set and a plan of adoption be chosen, and that the order for Mother’s visitation to be at a Department office be rescinded because it had not produced more visitation by Mother and it was a scheduling hardship for the caregivers.
On June 16, the court found that notice for the six-month review on the original petition was inadequate and continued the hearing to August 10. Mother’s visitation with Lorraina was switched back to the caregivers’ home, and the Department was ordered to initiate a home study.
b. August 10
By the time of the August 10 hearing, Mother had only gone for random drug testing seven out of a possible 20 times since she was referred for such drug testing in October 2005. One of her 13 no-shows was on August 2. There were four reports from Pacific Toxicology (two in June and two in July), which indicated she tested positive for prescription medication. Specifically, the test results state she was positive for hydrocodone opiates. Mother stated she was taking Vicodin for back pain but could not produce the prescription bottle. However, she produced a “to whom it may concern” note from a medical doctor dated July 6, 2006 which stated Mother was under the doctor’s care since February 22, 2006, and she was taking Vicodin ES under the doctor’s supervision. The social worker’s phone messages to the doctor to confirm that information were not returned. In November 2005 Mother had twice reported to Department workers that in years past she had a drug problem with Vicodin and it resulted in her entering drug treatment.
A July 18 report from Van Nuys Alcohol and Drug Treatment states Mother enrolled in their program on May 31 and in the six weeks since then had attended eight chemical dependency groups, two individual counseling sessions, and zero 12-step meetings. The report states her overall participation was satisfactory, she was on time, alert and attentive, and was accepting responsibility. The Department’s report states that the substance abuse group counseling meets twice a week and the individual counseling is once a week and thus Mother had participated in eight out of twelve group sessions and two out of seven individual counseling sessions. A call by the social worker to the program revealed that while Mother was still participating in the group sessions, she had stopped participating in individual counseling, and she was not enrolled in their parenting classes. The Department’s report notes that she was ordered on March 29, 2006 in the instant case to participate in her case plan and was ordered on December 22, 2005 in Jake and Gina’s case to participate in her case plan, and she remained out of compliance.
After the June 16 hearing, Mother contacted the social worker on June 28 to arrange visits with Lorraina. She visited five out of a possible seven times. One of the visits was cancelled because she arrived 30 minutes late to it and another was cancelled by Mother due to illness.
Also after the June 16 hearing, Mother obtained full time employment through an employment agency. However, she lost the job and she blamed the caregivers for the loss. She became increasingly argumentative with the social worker, asserting the social worker was misrepresenting her to the court. She also insisted the caregivers were lying and manipulative. When Mother was reminded that she had always maintained that she was not using drugs in the latter part of her pregnancy even though she tested positive for cocaine just days before Lorraina was born and even though Lorraina had been experiencing withdrawal symptoms, Mother refused to acknowledge those things.
The social worker opined that although Mother had made more of an effort over the last month to comply with her case plan than she had in all the prior months combined, it appeared she was going through the motions and not really actively engaged in treatment since she continued to deny having a drug problem and she was using the same prescription drug that she said she had previously been addicted to.
At the section 366.21, subdivision (e) six-month review, the court found (1) Mother was in partial compliance with her case plan, (2) Father’s compliance was “minimum or none, ” and (3) the parents’ failure to be substantially in compliance was prima facie evidence that returning Lorraina to them would be detrimental to her. Mother had been in and out of substance abuse programs, and even in her then-current program she was not fully participating, and she had not met her parenting education requirement. The court further found Father was not visiting the minor at all and while Mother had recently improved in visitation, the court could not find that she had consistently and regularly visited the child. Additionally, the court found Father had not contacted his attorney or the Department since his deportation, and Mother was still in denial of her positive drug test and the minor’s withdrawal symptoms that caused the child to be brought into the system. Indeed, despite her positive tests and her refusal to appear for most of her testing, she was in denial that she has a substance abuse problem. The court terminated reunification services for both parents and determined it was in the minor’s best interest to set a section 366.26 hearing to select a permanent plan for her. December 7 was chosen for the hearing.
We note that at the section 366.21, subdivision (e) review hearing for Jake and Gina’s dependency case that was held on May 4, 2005, the court found Mother had made minimal progress in alleviating or mitigating the problems that necessitated bringing them into the system. Finding that Jake and Gina’s father’s progress was good, it terminated the suitable placement order it had made for them and made a home of parent (father) order, retaining jurisdiction. Then on October 20, 2005, it made a final (“exit”) order. It terminated jurisdiction over Gina and Jake, placed legal and physical custody with their father, and ordered monitored visitation for Mother.
By December 7, the home study for the caregivers had been completed and approved, and Father had been served by publication. The Department reported the minor, who would be one year old on December 22, appeared to be reaching the physical developmental milestones for her age. She could also wave good-bye, blow kisses, say “mama, ” “dada, ” “bye-bye, ” and “ball, ” and she attempted to say names. She responded to simple directions and to her name, and actively initiated interaction with others. However, she was reported to have new behaviors that gave the caregivers concern. They reported she had anger issues. She would become angry without apparent reason and engage in tantrums that did not appear to be age related, including pulling on her hair and banging her head. She also bit a child at her day care. The social worker again referred her to Regional Center, noting the first referral had not produced an assessment.
At the December 7 hearing, Mother’s attorney indicated she wished to set the matter for a contest and so the section 366.26 hearing was continued to January 25, 2007.
7. Report for the January 25, 2007 Hearing
For the contested section 366.26 hearing, the Department submitted a visitation log for Mother’s visits with Lorraina. It appears that the log was prepared by the caregivers. The log notes that monitored visits for Mother were ordered on December 29, 2005, and a visitation schedule to which Mother agreed (specific hours on Wednesday evenings and Sunday afternoons) was immediately put in place.
According to the visitation log, Mother visited on December 31, staying for one and one-half hours. She brought gifts for the minor.
In describing Mother’s visits, the caregivers told the social worker that Mother’s focus during the visits did not appear to be on developing a bond with the minor child but rather on obtaining photos for Father and being able to tell the court that she was visiting the child. The caregivers also reported that Lorraina would not be able to pick Mother out of a crowd and the child has a stronger bond with her siblings than with Mother.
9. The January 25 and 26, 2007 Hearings
a. Mother’s Section 388 Petition
On January 25, 2007, the date of the section 366.26 hearing, Mother filed a section 388 petition seeking a home of parent order placing Lorraina in her care, or in the alternative, an order for the resumption of family reunification services and unmonitored visits between Mother and Lorraina, including overnight weekend visits. Her asserted grounds for this request were that she completed a drug rehabilitation program, individual counseling, and parenting classes, she was attending weekly 12-step meetings, and she was consistently visiting with the minor child.
“The petition pursuant to section 388 lies to change or set aside any order of the juvenile court in the action from the time the child is made a dependent child of the juvenile court . . . .” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Included with Mother’s section 388 petition were a certificate of completion and a completion progress report from Van Nuys Alcohol and Drug Treatment stating Mother had just completed her eight-month substance abuse program on January 24, 2007 (one day before the scheduled section 366.26 hearing). She enrolled in the program on May 31, 2006. The completion progress report states Mother completed 40 chemical dependency group sessions and 10 individual counseling sessions, was participating in on-going 12-step meetings two to four times a week, and was to attend weekly After Care group or individual sessions for six months. Her overall participation in the group and individual sessions was rated “satisfactory, ” and the report states she was present on time, alert and attentive, “appears to have gain [sic] new insight on past substance abuse history that led to self destructive behaviors and legal struggles [and] now accepts responsibility for her actions and has develop [sic] a healthy relapse prevention plan.”
Although they were not included with Mother’s section 388 petition, the record contains reports from Pacific Toxicology showing she tested positive for Hydrocodone opiates in July, October and December, she tested negative for substances once in September and once in October, and she was a no show twice in August, once in September, twice in November, and once in December. As noted, “no shows” are counted as dirty tests.
Upon receiving the section 388 petition, the court indicated it would hear the petition first and then the section 366.26 matter.
b. Testimony from the Social Worker, the Caregiver Aunt, and Mother
The Department social worker on Lorraina’s case, Zavtra Adams, was asked whether she believed there would be a risk to Lorraina if the court returned the child to Mother’s custody at the hearing. Adams answered that it would be “a very traumatic experience for Lorraina” because the child had not formed a bond with Mother. Further, the social worker was not aware that Mother had an appropriate residence for the minor. Additionally, to the social worker’s knowledge, Mother had not completed a substance abuse program.
Despite her assertion in her section 388 petition that she had completed a parenting class, Mother testified she had six more parenting classes to take. Asked about her substance abuse program, she stated that although she had completed that program, she was voluntarily going to continue drug treatment for six more months with sessions twice a week and those after-care sessions would start the week after the section 366.26 hearing. Asked about the “relapse plan” mentioned in the progress report from her program, Mother stated the relapse plan is to check in daily with her sponsor and keep in close communication with someone when she becomes upset or depressed so that she is not alone. However, she stated she did not have a sponsor. Asked what she learned from the program, she stated: “That using any kind of drugs is not the answer. I hurt my kids a lot for this. And to have hope available.” Asked what she learned from her individual counseling, she stated she worked on her emotions and communicating better with her family members and her children, and she and the father of Jake and Gina were getting along better. She stated she has a stable home, had been without work for about three weeks and was due to start another job the following week. She stated she had been visiting Lorraina but had missed visits on the last three Sundays, and she asserted that although she has missed visits, she always called to cancel the visits. She stated that sometimes she was not able to reschedule missed visits because of “problems with [her caregiver] sister.” Asked what those problems were, Mother stated sometimes her sister would not take her calls, and there were “various different reasons.” Mother added that “lately” the caregiver aunt told her that on the advice of the social worker, the caregiver was no longer obligated to reschedule the visits that Mother missed and was no longer required to allow visits if Mother was late. She stated that her work schedule had interfered with her visits. She also stated she always stays for the full two hours of her visits.
Asked what she would do differently if the court gave her another opportunity to reunite with Lorraina, Mother answered she would continue with her substance abuse program, attend meetings, “try to make some type of arrangement to have better visitation with my daughter, ” and not miss any more drug tests. Asked if she felt she has a strong bond with Lorraina, Mother stated: “No. No, I don’t.” Asked why it would be in Lorraina’s best interest to be returned to Mother’s care, Mother stated because she loves Lorraina, and because it would enable her other children, Jake and Gina, to spend more time with Lorraina and thus they would be a “family together.”
The caregiver aunt, Tiana R., who is Mother’s sister, testified as follows. Lorraina has lived with her since she was released from the hospital after she was born. The aunt has been the monitor for Mother’s visits with the minor child and sometimes the visits have been good and other times “not so good.” The good visits were when Mother helped her give the minor a bath and feed her. That happened “a couple of times.” Other good times were when Mother would spend time with Lorraina and with Mother’s other two children. The not-so-good times included when Mother would talk on the telephone or fall asleep. Once when Mother fell asleep the aunt was afraid Lorraina was going to fall out of Mother’s arms.
It was a common occurrence for Mother to make phone calls during visits with Lorraina. The average number of calls Mother would make was around 5. Also, there were times when Mother would eat or watch television rather than interact with the minor.
Lorraina calls the aunt and her husband “mom and dad.” Lorraina doesn’t call Mother anything, and indeed doesn’t even recognize Mother. Lorraina is an affectionate child but she is not affectionate with Mother. Mother is not involved with the minor’s medical appointments, she did not visit Lorraina on her birthday or send a card or a gift, and although she visited the minor on Christmas eve she did not bring a gift. When Mother visits the minor, she does not ask the aunt about the minor’s well being.
The aunt stated the only time she interfered with a visit between Mother and Lorraina was if the aunt had something planned, and in those instances, she would always notify Mother in advance and reschedule the visit. Mother doesn’t always stay the full two hours during her visits but stays the full time for most of them. Mother either comes alone to the visits or she brings her other two children, Jake and Gina and their father drops them off. When Mother misses visits, she does not always call to reschedule them.
c. The Court’s Rulings
Regarding the section 388 petition, the court found there were no changed circumstances, only changing circumstances. It added that while Mother’s completion of a substance abuse program was a good start, the focus of the case had changed to what was in the minor’s best interest, and there was “absolutely no evidence” that granting Mother’s petition would be in Lorraina’s best interest. The two had no bond, “not even a superficial bond.” In contrast, said the court, the child is very bonded to her caretakers and she has been with them all her life.
As for Mother’s contention that her parental rights should not be terminated because section 366.26, subdivision (c)(1)(A) applies here, the court stated Mother had not maintained regular visitation and contact with Lorraina and furthermore, given that Mother and Lorraina were not even bonded, there is no chance that not terminating Mother’s parental rights would produce a benefit that outweighs the benefit to be gained by Lorraina by being adopted.
Under subdivision (c) (1) (A) of section 366.26, the trial court is not to terminate parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child due to . . . [t]he parents hav[ing] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
The parents’ paternal rights were terminated and Mother filed this timely appeal.
CONTENTIONS ON APPEAL
Mother contends the trial court abused its discretion when it denied her section 388 petition. Mother also contends there is insufficient evidence to support the court’s finding that Lorraina is likely to be adopted, and there was substantial evidence to support a finding in Mother’s favor on the issue whether subdivision (c)(1)(A) of section 366.26 applies here.
DISCUSSION
1. There Was No Abuse of Discretion When the Trial Court Denied Mother’s Section 388 Petition
As noted above, by her section 388 petition, Mother sought a home of parent order placing Lorraina in her care, or in the alternative, an order for the resumption of family reunification services and unmonitored visits between Mother and Lorraina, including overnight weekend visits. Her asserted grounds for this request were that she completed a drug rehabilitation program, individual counseling, and parenting classes, she was attending weekly 12-step meetings, and she was consistently visiting with the minor child.
A trial court’s decision on a section 388 petition is reviewed for abuse of discretion. (In re Jasmon O., supra, 8 Cal.4th at p. 415.) Here, a reading of the evidence that we have set out above demonstrates overwhelmingly that there was no abuse of discretion when the court found there were only changing circumstances, not changed circumstances, and found it would not be in Lorraina’s best interest to grant Mother’s section 388 petition.
To recap, Lorraina was not bonded to Mother. Indeed, there was evidence the child does not even recognize Mother when she sees her, the child has no name for Mother, and the child cries when left alone with Mother. Although she was described as being an affectionate child, Lorraina was not affectionate with Mother. Those things are not surprising considering that over the 13 months that the child was out of Mother’s care, Mother visited relatively little, and even when Mother was physically present at visits with the minor, she was often attending to her own agenda (eating, making phone calls, watching television, sleeping), not working to bond with Lorraina. Indeed, the caregiver aunt testified that Mother only helped feed and bathe the minor a couple of times. Mother was not involved with the minor’s medical appointments, she showed no interest in Lorraina’s birthday, and when she visited the minor, she did not ask the aunt about the minor’s well being.
Moreover, by the time Mother filed her section 388 petition, she still had not completed a parenting education program, and she had just barely completed her eight-month substance abuse program, having not enrolled in it until May 31, 2006. Thus, she had absolutely no track record demonstrating that she would be able to maintain sobriety after being out of the program. Moreover, as late as five weeks prior to the section 388 and section 366.26 hearings, she was having “no shows” in her random substance abuse testing, a red flag that she may have been using drugs even during her time in the rehabilitation program. Further Vicodin was the very drug that Mother admitted she was previously addicted to and had undergone drug rehabilitation for, yet she was using it again. She was not able to produce a prescription bottle for the Vicodin she was taking, and the social worker was not able to verify with a doctor that Mother legitimately had Vicodin in her possession. Thus, the court had a factual basis when it made a finding that Mother was still addicted. Additionally, the description of her visitation with Lorraina, both in terms of scheduling and keeping visits, and in terms of the quality of the visits she managed to keep, speaks volumes about the level of her maturity. It demonstrates her inability to set aside her own desires and live up to her responsibilities for the good of Lorraina. Clearly there was no abuse of discretion in denying her section 388 petition.
2. Substantial Evidence Support’s the Trial Court’s Finding That Lorraina Is Adoptable
Before a court may terminate parental rights it must find by clear and convincing evidence that it is likely the dependent minor child will be adopted. (§ 366.26, subd. (c)(1).) In an appeal challenging a finding required to be made by clear and convincing evidence, we determine whether there is substantial evidence to support the finding . (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Mother pays only lip service to our standard of review because she focuses on evidence that she contends supports her position that Lorraina was not shown to be adoptable.
“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. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting the wings.’ [Citations.] [¶] 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. [Citation.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted; accord, In re Marina S. (2005) 132 Cal.App.4th 158, 165)
The juvenile court’s finding that Lorraina is adoptable is supported by substantial evidence. Her caregivers have always stated they would adopt her if her parents could not reunite with her. The record shows they consider her a “natural part” of their family. She is loved, indeed “adored, ” by them and by their own children (Lorraina’s cousins), and she relates well to them. Additionally, she has consistently been found to be reaching the developmental milestones for her tender age of one year old. Thus, it is clear that her age, disposition, and physical development are conducive to her being adopted.
Although it was reported that Lorraina had recently begun to have “anger issues” that did not appear to be age related, including pulling her own hair, banging her head, and biting another child at day care, the caregivers’ response to this new behavior was simply to ask for a Regional Center assessment, not to reject adoption. And although the assessment had not been done prior to the time the home study was completed, the adoption social worker reported that the caregivers have “no reservations” about adopting Lorraina. Further, the Department’s adoption social worker determined Lorraina is likely to be adopted.
Thus, we do not agree with Mother’s contention that the absence of an assessment report from Regional Center means that the court acted prematurely in terminating Mother’s parental rights. There was no report by the caregivers that Lorraina’s new behavior was accompanied by an extinguishment of her happy disposition and her behavior that caused her relatives to adore her. Moreover, there is no indication that the new behavior occurs frequently. We note that the social worker observed that the caregivers are “very sensitive to the fact” that Lorraina was exposed to drugs before she was born. Thus their observations of “anger issues” may be reflective of that sensitivity such that they report incidents to which other caregivers would not attach much significance.
Lastly, we observe that the Legislature amended section 366.26 in 1998 to include provisions that address the concern expressed by Mother in her appellate brief that an erroneous finding that a child is adoptable can result in “a legal orphan with no legal ties to anyone.” To promote the interests of dependent children, subdivision (i)(2) of that statute now provides in part: “A child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388. The child may file the petition prior to the expiration of this three-year period if the State Department of Social Services or licensed adoption agency that is responsible for custody and supervision of the child as described in subdivision (j) and the child stipulate that the child is no longer likely to be adopted. A child over 12 years of age shall sign the petition in the absence of a showing of good cause as to why the child could not do so. If it appears that the best interests of the child may be promoted by reinstatement of parental rights, the court shall order that a hearing be held . . . . The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child’s best interest. If the court reinstates parental rights over a child who is under 12 years of age and for whom the new permanent plan will not be reunification with a parent or legal guardian, the court shall specify the factual basis for its findings that it is in the best interest of the child to reinstate parental rights.” We note that under subdivision (b) of section 366.26, adoption still remains the favored permanent plan of the Legislature.
3. Mother Did Not Meet Her Burden of Demonstrating That the (c)(1)(A) Exception to Terminating Parental Rights Applies Here
Mother contends the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights applies here to prevent her parental rights from being terminated. That exception provides that the parent must prove she or he has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The (c)(1)(A) exception has been interpreted “to mean the [parent/child] 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 other words, the court balances the strength and quality of the natural 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 parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; accord In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347 et seq.; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416 et seq.)
To simply recite the Autumn H. test for application of the (c)(1)(A) exception is to know that it has no place in this case. The summary of evidence we set out in our discussion of Mother’s section 388 petition shows Mother had no grounds for claiming the exception. Essentially, there is no bond between Mother and Lorraina. Thus, there is no basis for finding there was a great detriment to the minor because Mother’s parental rights were terminated.
We reject Mother’s assertion that the caregivers thwarted her attempts to visit with Lorraina and develop a parent-child relationship. It was not until December 21, 2006 that the caregivers, with the social worker’s consent, told Mother they would no longer accommodate her many, many reschedulings and failures to appear, and she was informed that if she was more than 15 minutes late, there would be no visit. The caregivers were far more tolerant of Mother’s inconsiderate behavior than she had any right to expect them to be.
DISPOSITION
The order denying Mother’s section 388 petition and the order terminating her parental rights are affirmed.
We Concur: KITCHING, J. ALDRICH, J.
In January 2006, out of the possible eight visits, Mother visited twice. During one of those visits, she was four hours late and only wanted to visit the child briefly in the front yard. On the other visit, she spent the full two hours and the visit went well. For the other six scheduled visits, she simply never showed up. In February, Mother visited on the fifth of the month because the caregiver agreed to give her gas money, and her visit on February 12 lasted a full two hours and went well. She was a no show for the other six visits in February. In March, she only came for one visit, called to cancel another one, and the other four were no shows. The quality of the one visit was described as “fair.”
Mother was a no show for all eight April visits. May was the month Mother asked to have visits changed from the caregivers’ home to a Department office, and then after the court ordered the change, Mother decided that it would be better to have visits at a park near her home at 6:00 p.m. and have the social worker monitor the visits. An evening visit took place on May 18 but on that same day, Mother stated she was scheduled to enroll in evening substance abuse counseling and so she requested that visits take place in the morning near the minor’s child care facility. The social worker set up a visit for May 24 at 7:45 a.m. and Mother was provided with a bus pass. On May 24 the social worker waited for Mother until 8:20 a.m. but Mother never came for the visit and did not contact the worker to reschedule the visit. Thus, Mother had one visit in May.
There were no visits in June. Mother had not contacted the social worker to schedule any until June 28. By that time, the court had changed the visits back to the caregivers’ home. A visit was scheduled for July 1 and Mother participated for a full two hours. She scheduled future visits for two hours every Sunday. During the rest of July she visited three times and was considered a no show once because she was 30 minutes late. The social worker informed Mother by mail that the caregivers were instructed that henceforth they should not permit a visit on any day that Mother was more than 15 minutes late. After the last visit in July, the caregivers reported to the social worker that Lorraina cries a lot during Mother’s visits and Mother holds the minor and walks around but does little else. They stated Mother seems “ ‘out-of-it’ ” during the visits, but they felt they were no longer able to tell if Mother is under the influence. They did not see any evidence that Lorraina was bonding to Mother. The quality of the July visits was described as “poor.”
In August, Mother cancelled a visit on the sixth, saying she was sick. She did not reschedule that visit. After the court terminated family reunification services on the tenth of the month, the caregivers and Mother changed the visitation schedule from every Sunday to once a week so that Mother could have every opportunity to visit the minor. Mother frequently asked to reschedule visits, including changing times and dates several times a week, and the caregivers accommodated her. Mother visited a total of three times during August, with two of the visits lasting one to two hours and the other lasting only long enough for Mother to take pictures of the minor and send them to Father. The caregivers reported that the minor did not appear excited to see Mother or even to recognize her, and that the child cried if the caregivers left her side when Mother was there. On some visits, Mother looked thin, pale and was hungry, and at other times she was well groomed and appeared to be doing well. The quality of Mother’s visits was reported to be “poor.”
During the first week of September Mother scheduled a visit but when she had not arrived within 90 minutes of the scheduled time, the caregivers rescheduled for September 8 at 10:00 a.m. On September 8, Mother rescheduled to 1:00 p.m., then she arrived late, made around 10 telephone calls and spent little time with Lorraina. She failed to show for a visit scheduled on the tenth, and on the seventeenth she was at the caregivers’ home for two hours but spent most of the time on the telephone and little time interacting with the minor. On September 24, Mother seemed disoriented when she arrived for her visit, fell asleep while playing with the minor, and left after two hours. Once again, her visits were reported to be “poor” in quality.
Mother kept her first scheduled visit in October, staying for 80 minutes. The visit went well and Mother did not use the telephone. On October 9 she called to change her visit that day from 5:00 p.m. to 6:00 p.m. and then did not show up. The caregivers contacted her and rescheduled for October 10 but she did not show up for that visit either. On the 13th she visited for one hour and 45 minutes and made four phone calls during the visit. She visited for two hours on the 15th and the 22nd. She failed to appear for her visit scheduled for the 29th but rescheduled for the 31st and spent an hour with the minor trick or treating. The quality of the visits was “fair.”
In November, the visits that Mother kept were reported to be “good.” On November 5 Mother moved the time back and the visit lasted two hours, with Lorraina’s siblings being present that day. Mother rescheduled a November 12 visit to the 15th and then did not show up for the visit, calling to say she overslept. On the 19th she participated in a two-hour visit, and on the 26th the minor’s siblings were at the caregivers’ home and Mother participated in a two-hour visit.
Mother had two visits in December and they were reported to be “fair” in quality. She called on December 3, rescheduled to the 6th, and had a 90 minute visit, with the minor’s siblings also being there. Mother rescheduled her December 10 visit to the 13th and then did not show for that visit. On December 21, the caregivers, with the social worker’s consent, told Mother they would no longer accommodate her constant rescheduling and failures to appear, and she was informed that if she was more than 15 minutes late, there would be no visit. Also, visits were changed to Sundays from 1:00 to 3:00 in the afternoon. Mother had a one-hour visit on December 24. On the 31st she did not show up at 1:00 and was told when she called at 1:25 that she could not visit because she had not arrived by 1:15.
Mother had two visits scheduled in January 2007 but she was a no show for both.