Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Tulare County Nos. JJV064024C, JJV064024D. Hugo J. Loza, Commissioner.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and John A. Rozum, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Detjen, J., and Franson, J.
Susana R. (mother) appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to her twin sons. She contends the juvenile court erred by: denying her request (§ 388) to either regain custody or reopen reunification services; and rejecting her argument that termination would be detrimental to the twins. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
The twins were born prematurely in February 2009. At their birth, they, along with mother, tested positive for methamphetamine. Because the twins were her first drug-exposed infants and she appeared willing to participate in services, mother was referred to an early intervention unit for services, including drug-exposed infant and CPR training, as well as random drug testing. No action was taken at the time to detain the twins.
One of the twins spent more than the first two months of his life hospitalized at a university pediatric hospital due to a number of serious health problems and special needs. When this special needs twin was discharged in May 2009, he was prescribed a special formula, and arrangements were made so that the formula could be delivered to the parents’ home. However, the delivery reportedly could not be made because no one answered at the phone number the parents provided. This raised concern about how the special needs twin was receiving nourishment.
The special needs twin was admitted to another university hospital in June 2009 for respiratory problems. When he was later scheduled to be discharged, both of the parents failed to participate in his discharge planning, which included training. Days after the scheduled hospital discharge, the parents still had yet to contact the hospital. The parents’ failure or inability to provide adequate medical treatment, as well as their substance abuse, placed the twins at continuous risk of suffering serious physical harm or illness.
Consequently, in late June 2009, respondent Tulare County Health and Human Services Agency (agency) detained the twins, who were then four months old, and initiated the underlying dependency proceedings. From the outset, the juvenile court and the agency appeared amenable to returning the twins to mother’s care if she could provide three consecutive, clean random drug tests. However, she could not do so. She would periodically be a “no-show” for testing. A “no-show” was presumed to be a positive drug test. She also missed six scheduled medical appointments for the special needs twin.
In August 2009, the juvenile court exercised its dependency jurisdiction over the twins and removed them from parental custody. By this point, the agency had placed the twins with the maternal grandparents, who had been trained to care for the special needs twin. The court ordered reunification services for the parents. It also granted the agency discretion to place the twins with mother, if she enrolled in a substance abuse program and provided three clean tests.
Mother eventually entered drug treatment but she continued to be a “no-show” for random drug testing. Two spot tests of mother in October 2009 were positive for methamphetamines.
Then in mid-December 2009, the agency returned the twins to the parents’ care. Mother had completed a 30-day inpatient treatment program and was testing clean.
Two and a half months later, the agency redetained the twins and filed a supplemental petition for a more restrictive placement. According to the supplemental petition, mother was again using controlled substances, not participating in random drug testing, and not attending NA/AA meetings. She also failed to complete medical training for the special needs twin, as requested by a children’s hospital. Similarly, the father was using controlled substances, not participating in random drug testing, and not attending NA/AA meetings. In addition, the parents had left the special needs twin in the care of the maternal grandmother without advising the agency.
After the agency returned the twins in December, mother signed papers giving custody of the special needs twin to the maternal grandmother.
The juvenile court found the allegations of the supplemental petition true. At a May 2010 dispositional hearing on the supplemental petition, mother sought another six months to reunify. Among other subjects, she testified that after the twins were redetained she visited them every day at the maternal grandmother’s home. The twins appeared to recognize her. One called her “mommy” and the special needs twin “just says ta ta.” She believed she had a mother/son bond with the twins. On a scale of one to ten, with ten being the closest bond she could imagine, mother rated her bond with the twins as a nine.
The juvenile court ordered the twins’ continued out-of-home placement and terminated reunification services for the parents. The court found there was not a substantial probability that if it were to extend reunification services until August, which would be the end of the 12-month period, that the twins would be returned. Indeed, there was no likelihood that the parents would comply with additional services. They had completely and totally failed to test.
The juvenile court, in turn, set a September 2010 section 366.26 hearing to select and implement a permanent plan for the twins. It also limited visitation to supervised once-a-month visits.
The agency later submitted a report in which it recommended the court find the twins were likely to be adopted and order parental rights terminated. It identified the maternal grandparents as the twins’ prospective adoptive parents. The twins’ primary relationship was with the maternal grandparents. The parents had not participated in the day-to-day care of the twins.
In its permanency planning report, the agency also noted there had been consistent parent/child visitation. At the end of the visits, the twins were “satisfied to stay in the care of the maternal grandparents and [did] not have any separation anxiety.” Despite its recommendation for adoption as the twins’ permanent plan, the agency also recommended that court-ordered visitation between the twins and their parents continue “as the prospective adoptive parents want them to be an ongoing part of their life [sic] as long as their contact is not detrimental to the [twins] in any way.”
A court-appointed special advocate (CASA) also submitted a report for the permanency planning hearing. In it, she agreed with the agency’s permanent plan recommendation. She reported she had not observed any of mother’s visits with the twins since the last court hearing. She added the maternal grandmother supervised the twins’ visits with mother and reported that the visits go well. In another portion of her report, the CASA stated:
“[t]he children are not able to articulate who the important people are in their lives. I’m assuming the grandmother, grandfather, mother, father, and extended family and of course, each other.”
On the figurative eve of the September 2010 permanency planning hearing, mother’s attorney filed a request under section 388 for mother to regain custody of the twins or reopen reunification services and increase visitation. Counsel left blank the portion of the request form in which to explain “what changed after the judge’s order that would change the judge’s mind.” On an attached page, however, counsel alleged mother recently gave birth and had not provided all documentation to include with the request. She purportedly had two support letters from her sponsor and a support person from a group she attended, as well as a letter from her parenting instructor. Mother also allegedly had negative drug tests since the last hearing. Attached to the request were copies of mother’s NA/AA attendance cards. According to the attendance cards, mother attended approximately 20 meetings since the mid-May 2010 hearing at which the court terminated services and June 30.
Counsel also alleged mother had maintained an extremely strong bond with the twins and had been involved in their day-to-day care until services were terminated. He offered no evidence in support of this allegation.
The juvenile court agreed to set mother’s request for hearing along with the permanency planning hearing. By the time the court heard the matter in late September 2010, the agency had filed two addendum reports in opposition to mother’s request and in support of adoption. The addendum reports included the following information.
Mother had a newborn baby and was pursuing custody of two older children in family court. The father of the twins and the newborn was unavailable, as he was committed to a one-year residential treatment program. Also, the special needs twin required around the clock care and supervision, as well as multiple trips to medical providers every month. Under these circumstances, mother would be faced with more demands on her life and time. It was doubtful mother had the ability, ongoing stability, and support to provide care and supervision for the twins.
In addition, mother had no proof that she had attended an NA/AA meeting since June 30. As for drug testing, mother tested negatively seven times between July 1 and August 2, 2010. However, between August 9 and September 3, 2010, mother had seven no-shows. She was also awaiting a pre-trial conference on a drug offense charge dating back to September 2009.
Meanwhile, the twins had spent more than half of their short lives in the care of their maternal grandparents, who met their daily needs. The twins had a strong attachment and bond to the maternal grandparents. It was reported to the agency that the twins were happy to see their mother and father, but had no anxiety at the end of their visits. The maternal grandparents had communicated that if they were allowed to adopt the twins and they perceived that the parents were finding some stability in their lives, the grandparents would allow the parents visitation. The parents could be a part of the twins’ lives if they could prove they had some long-term stability. “But only if the additional visits do not cause detriment to the [twins].”
The agency also submitted new recommended findings and orders for the court to consider. They did not contain an order for continued visitation.
At the start of the September 2010 hearing, mother’s attorney advised that mother had handed him some additional documentary evidence, which they were submitting. Counsel did not identify the evidence. The appellate record includes a six-page exhibit admitted into evidence on the day of the hearing. The exhibit consists of a letter documenting mother’s attendance at “Parenting Wisely” classes, starting in late July 2010, and completion of the “Young Children” portion of the program in mid-September, a certificate of completion, and a handout from the program.
Mother’s attorney then proceeded to argue in favor of mother’s request. Father’s attorney joined in counsel’s argument. The twins’ counsel argued at length against the request.
The CASA agreed with the twins’ attorney. She added she knew mother recently had another child and mother did not want that child detained. Mother was well aware of her pregnancy and that if she tested positive, the baby would be detained. The CASA had had conversations with mother about the importance of letting people know she was not “dirty” while pregnant. Mother’s counsel voiced no objection to the juvenile court’s consideration of this additional information.
Counsel for the agency made certain the court had received the agency’s permanency planning and addendum reports, as well as the CASA’s report. The agency’s counsel also argued against mother’s request.
The court denied mother’s request. It noted some positive change in that mother attended some NA meetings and tested for about a month. However, those changed circumstances were not sufficient to warrant a change in the court’s order and “certainly the best interest of the children would not be met by granting the 388.”
Onto the permanency planning hearing, mother’s counsel had no additional evidence to introduce. He argued, nevertheless, that mother consistently visited with the twins and had been a loving parent. He asked that “the.26 be denied.” Father’s counsel also argued that father had maintained regular visitation. The attorney pointed to the agency’s previous recommendation for continued visitation and urged the court not to terminate parental rights. Counsel for the agency clarified that the agency had submitted new recommended findings and orders and was not asking the court to order visits. Counsel argued the previous recommendation for continued visitation had been an attempt to emphasize the parents had been involved.
Upon the conclusion of closing arguments, the court rejected the parents’ arguments. It observed the more persuasive argument was “not to terminate would be detrimental [to the twins].” It then followed the agency’s recommendation and terminated parental rights.
DISCUSSION
I. Mother’s Section 388 Request
Mother contends the juvenile court erred by denying her request to regain custody or reopen reunification services. In her view, there were changed circumstances since the court terminated services. She argues she had rehabilitated herself to the point that the agency permitted her to raise her newborn without interference. She was also drug testing and attending 12-step meetings. Mother further claims she was an important and necessary person in the twins’ lives so that it was in their best interests that the court issue a different order.
A parent may regain custody after services have been terminated only by showing that changed circumstances demonstrate a return to parental custody is in the child’s best interests. (§ 388, subds. (a) & (d); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Similarly, a parent could seek to reopen services provided changed circumstances demonstrate reopening services is in the child’s best interests Whether the juvenile court should modify a previously-made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
In this case, there was no abuse of discretion. Mother failed to show both that circumstances had sufficiently changed and that a different order would serve the twins’ best interests.
While mother argues circumstances had changed because she was back on the road to recovery, she exaggerates the meager evidence she produced while ignoring the evidence contained in the agency’s addendum reports and the CASA’s information. At most, mother showed she attended approximately 20 NA/AA meetings between mid-May and the end of June 2010, and she later started attending a parenting course. There was no evidence that she had attended an NA/AA meeting since June 30. Meanwhile, according to the agency’s evidence, mother continued her pattern of being a no-show for drug testing, except for a one-month period prior to or around the time she gave birth to another child. In addition, she still had a criminal charge pending against her. Also, according to the CASA, mother was well aware of her pregnancy and that if she tested positive, the baby would be detained. The CASA had had conversations with mother about the importance of letting people know she was not “dirty” while pregnant.
Mother also misstates the record in arguing the agency permitted her to raise her newborn without interference. There was no such evidence. At most, there was an acknowledgement by the agency that mother had a newborn. To interpret that as proof the agency permitted her to raise her newborn without interference would require us to engage in speculation, which we decline to do.
In addition, mother introduced no evidence that an order returning custody or reopening reunification services would promote the twins’ best interests. On appeal, she appears to rely on her testimony four months earlier about the strength of her relationship with the twins. However, she never asked the court to consider that earlier evidence in evaluating her request. In any event, it did not amount to compelling proof that returning custody or reopening reunification services would promote the twins’ best interests.
Mother also loses sight of the increasingly important role that a child’s need for continuity and stability assumes when dependency proceedings reach the permanency planning phase. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) A parent’s interest in the care, custody and companionship of the child is no longer paramount. Rather, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id. at p. 302.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Here, mother made no showing that an order returning custody or reopening reunification services would promote the twins’ needs for permanency and stability. Indeed, the agency’s information in its addendum reports established quite the contrary.
II. No Showing of a Beneficial Parent/Child Relationship
Mother also contends the juvenile court erred in terminating her rights because there was uncontested evidence of a beneficial parent/child relationship between the twins and her (§ 366.26, subd. (c)(1)(B)(i)). Again, we disagree.
Once a dependency case reaches the permanency planning stage, the statutory presumption is that termination is in an adoptable child’s best interests and, therefore, not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) It is the parent’s burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i) involves a two-part test; did the parent maintain regular visitation and contact with the child, and would the child benefit from continuing the relationship.
For the beneficial relationship exception to apply,
“the parent-child relationship [must] promote the well-being of the child to such a degree that it outweighs 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.) A juvenile court must therefore: ‘balance... 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.’ (Id. at p. 575.)” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) For this to occur, the proof offered must be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Based on our review of the record, we conclude the juvenile court properly exercised its discretion in rejecting mother’s argument.
Although mother maintained regular visitation with the twins, there was no evidence that severing the relationship would deprive either twin of a substantial, positive emotional attachment such that either of them would be greatly harmed. At most, there was evidence of visits that went well. Even so, when the visits came to an end, the twins were satisfied to stay in the care of the maternal grandparents and did not have any separation anxiety.
To the extent mother relies on the maternal grandparents’ willingness to permit her to be a part of the twins’ lives in the future, mother ignores the grandparents’ proviso. She first had to prove some long-term stability for that to occur. While mother also claims the CASA identified her as an important person in the twins’ lives, she overstates the evidence again. The CASA merely stated the twins were unable to articulate who the important people were in their lives. She assumed those were the grandmother, grandfather, mother, father, and extended family, as well as each other. The CASA’s assumption was hardly proof that termination would be detrimental to the twins.
On review, we conclude mother failed to affirmatively establish that termination would be detrimental to the twins. (In re Zachary G., supra, 77 Cal.App.4th at p.809.) The juvenile court did not abuse its discretion by rejecting what was nothing more than argument on mother’s part. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
DISPOSITION
The orders terminating parental rights are affirmed.