Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 05CEJ300076, Jane A. Cardoza, Judge.
David M. Thompson, under appointment by the Court of Appeal, for Defendants and Appellants.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., Kane, J.
INTRODUCTION
Sage B., appeals from an order of the juvenile court denying her request under Welfare and Institutions Code section 388 to modify a previous order terminating reunification services based on alleged change of circumstances. At the same hearing, the juvenile court terminated appellant’s parental rights pursuant to section 366.26. We will affirm the judgment of the juvenile court.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Summary of Prior Proceedings
M. was born in April 2005 in appellant’s jail cell. The infant was underweight, appellant had failed to obtain prenatal care, and both appellant and her daughter tested positive for cocaine. Appellant tested positive for methamphetamine and had a history of substance abuse, using marijuana, crack, methamphetamine, heroin, and alcohol. Appellant suffers from cerebral palsy and had been receiving services from the Central Valley Rehabilitation Center (CVRC). Several months before M.’s birth, appellant discontinued these services. Upon M.’s discharge from the hospital, she was placed with caregivers trained to care for medically fragile babies. The Fresno County Department of Children and Family Services (department) filed a dependency petition pursuant to section 300, subdivision (b).
Appellant filed a motion requesting that we take judicial notice of our opinion in case No. F051203, an opinion filed on November 30, 2006. On July 9, 2007, we notified respondent that we would consider granting appellant’s motion unless respondent filed an objection. There being no response from respondent, we hereby grant appellant’s request for judicial notice.
The juvenile court adjudged M. a dependent based on appellant’s failure to protect (§ 300, subd. (b)) at the conclusion of a June 2005 dispositional hearing. The assessor of appellant’s mental health noted she had chronic substance abuse and dependence but was in denial about it. Appellant was hesitant to begin treatment, but did so in late July 2005. Appellant began parenting classes, but was terminated from the program twice in 2005 for noncompliance. Appellant was terminated from residential treatment in October 2005 for noncompliance. When appellant showed up for treatment at the Westcare program, she arrived at the treatment facility intoxicated. She was later terminated from the treatment program for noncompliance and had a history of not submitting urine samples.
At the conclusion of the six-month review hearing on February 21, 2006, the court continued appellant’s services another three months because appellant did not receive a follow-up mental health assessment. The court ordered appellant to undergo a psychological evaluation. Psychological evaluations were conducted in April and June 2006. Both psychologists found appellant suffered from a mood disorder, polysubstance abuse, and borderline intellectual functioning.
One psychologist stated that while appellant’s cognitive functioning was in the low average range, she had no intention of recovering from her drug dependence problems and appellant’s mental impairment was due to drug abuse. At the time of the psychologist’s report, appellant had failed three different drug programs. The other psychologist noted appellant’s problems, including her drug abuse, made her incapable of adequately caring for a child. Given appellant’s failed attempts at treatment, the psychologist did not find her capable of utilizing reunification services. In June 2006, a psychiatrist prescribed appellant an anti-depressant for her mood disorder.
By June 2006, appellant’s CVRC case manager noted appellant had been supported in different living situations, referred to mental health counseling, provided medication, and given training and services for behavior, education, and vocational training. Appellant, however, was no longer willing to use these services. The case worker believed that appellant’s instability and immaturity, rather than any disability, determined her ability to parent. The CVRC case manager noted in a letter prepared in September 2006, that appellant was observed on multiple occasions smelling of alcohol and appearing to be under the influence. She was still suffering from polysubstance abuse.
A 12-month review hearing and section 388 petition, filed by the minor’s counsel to deny reunification services to appellant, were heard on September 7, 2006. Appellant argued, inter alia, that CVRC failed to develop an Individual Program Plan consistent with reunification of mother and daughter and that the department abdicated its responsibility to provide reunification services. One psychologist, who evaluated appellant, testified that appellant suffered from a mental disability that rendered her unable to care for her child. The other psychologist observed that appellant failed to benefit from services and was not in compliance with those services offered to her. The psychologists would not change their opinion about appellant’s ability to benefit from services.
A CVRC case worker testified that appellant would not return her calls and was uncooperative. The plan for appellant was driven by her desires. Appellant did not express an interest in reunifying with her daughter. Another CVRC case worker testified that even if appellant did not want to reunify with her child, the baby was still entitled to early start services. There may have still been counseling services that could have been provided to appellant even though she had given up.
At the conclusion of the hearing, the court granted the section 388 petition and denied appellant services pursuant to section 361.5, subdivision (b)(2). The court found that participation by the appellant in services offered by CRVC was voluntary. The court found that neither psychologist could identify any service which would change their opinion as to appellant’s ability to care for M. or to successfully participate in reunification services. The court held the department had offered reasonable services, and complied with the case plan, and that appellant had made no progress toward alleviating or mitigating the minor’s dependency. The court held return of the minor to her parents would create a substantial risk of detriment to the minor and it would be in her best interests to proceed to permanency planning. The court terminated reunification services.
Appellant filed a petition in this court challenging the juvenile court’s termination of her services. On November 30, 2006, we filed an opinion finding that services offered by the CRVC were an adjunct to the reunification plan offered by the department and appellant failed to challenge the reasonableness of her plan in a timely manner. We further found there was no evidence of unreasonable efforts to help appellant comply with her case plan. The department arranged for appellant’s admission to three drug and alcohol treatment programs and offered her parenting programs. CRVC offered additional services. In the end, appellant’s noncompliance with her case plan was directly attributable to her unwillingness to submit to treatment rather than unaccounted for limitations caused by her disability or lack of effort by the department.
We concluded the opinions of the psychologists that appellant could not benefit from services meant that she could not be expected to complete the objectives of her case plan. Because two board certified psychologists concluded appellant could not utilize reunification services because of her mental disability, the juvenile court was warranted in denying her further reunification services pursuant to section 361.5, subdivision (b)(2).
Recent Proceedings
On April 17, 2007, appellant filed a petition for modification requesting reinstatement of reunification services because she had recently completed Fresno New Connections Dual-Diagnosis Abuse Treatment program. Appellant had perfect attendance and good participation after transferring into an aftercare program. Appellant was participating in a positive parenting class funded by CVRC. Appellant met M. outside of class with an intern and a care worker.
Appellant filed a document listing the reasons she should not lose her parental rights. She asserted she was better supported by CVRC, was seeing a therapist and a psychiatrist, was taking the positive parenting class, was going to rehabilitation classes to help her deal with anxiety and anger in a positive way, and the previous inpatient programs failed to accommodate her because they were improperly equipped. Appellant attached a visitation log to the petition indicating when she visited M.
The section 366.26 report was prepared by the department prior to the hearing. During a visit between appellant and M. on February 12, 2007, appellant did not engage with M. for five minutes after entering the room. When appellant tried to play with M. using a ball, M. took the ball and went back to playing with other toys. When appellant called out M.’s name, the child would not respond. Appellant repeatedly asked M. to pick up toys, but M. would not respond to appellant’s requests. Appellant was not concerned when M. started grabbing items from an office assistant’s desk. Appellant became frustrated. Appellant did not hug or kiss M. at any time during the visit.
During a visit to a bookstore on March 1, 2007, the case worker noted appellant’s hair needed washing. The maternal grandmother brought M. to appellant, who made no move toward her daughter. M. would not sit on appellant’s lap when appellant attempted to read her stories. M. would wander toward bookshelves. Although M. did not sit on appellant’s lap, she did sit on her grandmother’s lap. When appellant called out M.’s name, M. did not respond. M. appeared uninterested when appellant attempted to show M. pictures in a book. When M. became hyperactive, it was her grandmother who retrieved her or picked up after her. When M. was observed with her caregiver on March 2, 2007, M. was relaxed, happy, and comfortable and showed no hyperactive behavior.
The social worker concluded that M. was physically and emotionally healthy and generally adoptable. The caregiver was committed to ongoing supervision, therapy, and training services being provided to M. The social worker found a nonexistent relationship between M. and appellant. The recommendation was for termination of parental rights and a permanent plan of adoption.
The section 366.26 hearing and section 388 petition were heard on April 17, 2007. A family friend testified that he had observed appellant with M. about a dozen times and that the visits went well. Appellant loves M. and the situation was comfortable and positive.
Appellant’s mother testified about the difficulties appellant suffered having cerebral palsy. Appellant’s mother believed appellant needed help to be a better parent. Appellant was finally receiving proper instruction with the new parenting classes she was taking. Appellant was interacting better with M. Appellant’s mother stated that appellant was making better choices and decisions than before and that she really cared about M.
Appellant testified that she consistently visited with M., wanted M. returned to her care, recently completed a program with Fresno New Connections, and had not used illegal drugs since M. was born. Appellant was now “clean” from illegal drugs and more relaxed in the new program. Appellant had assistance with transportation. Appellant admitted using alcohol after M. was born, but only a little. Appellant denied current consumption of alcohol. Appellant described her earlier drinking as having a drink at dinner. She denied having a drinking problem.
A drug abuse specialist at Fresno New Connections testified that appellant had been in a dual-diagnosis substance abuse group the previous eight months and had recently been transferred to an aftercare program. Methamphetamine had been appellant’s primary drug. The specialist noted appellant had maintained sobriety. Appellant is positive and open in group process sessions. Appellant was expected to complete the program.
The juvenile court found appellant had demonstrated changing, rather than changed, circumstances. The court found appellant had failed to demonstrate a change of circumstances and that her petition did not show it would be in M.’s best interests to modify the court’s earlier order. The court noted that its findings were not attributable to appellant’s physical limitations, but to her unwillingness to submit to treatment and to comply with the goals of reunification. The court terminated the parental rights of both parents and ordered a permanent plan of adoption.
The father was incarcerated throughout most of these proceedings and has not appealed from the court’s orders.
DISCUSSION
Appellant contends the juvenile court erred in denying her section 388 petition and in terminating her parental rights. Appellant had the burden to prove there was new evidence or there were changed circumstances that made a change of M.’s placement in her best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M).) Appellant failed to accomplish either task.
Appellant asserts that her circumstances had changed. As respondent points out at page 10 of the department’s opening brief, appellant presented no evidence to overcome the findings of the two psychologists in the earlier proceedings that she no longer suffered from the mental disability that limited the efficacy of reunification services. More importantly, appellant had only completed a substance abuse program just prior to the section 366.26 hearing. She was still receiving services to overcome her drug and alcohol dependency long after the initial dependency action began. The evidence supported the juvenile court’s finding that appellant had only demonstrated changing circumstances, not changed circumstances. Such a showing is insufficient to even warrant a hearing on a petition for modification of prior court orders. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1072; In re Casey D. (1999) 70 Cal.App.4th 38, 49.)
We find appellant’s argument on page 16 of her opening brief, that there was no indication she was continuing to drink alcohol or had reverted to using other drugs to be, unpersuasive. Appellant not only had a long history of alcohol and drug abuse which caused the instant dependency action, she had failed multiple treatment programs during the proceedings. Appellant also demonstrated a serious alcohol problem throughout the dependency proceedings. Case managers and social workers detected alcohol on her breath when they met with her.
Appellant constantly failed to complete early treatment programs and failed on many occasions to have herself tested. Appellant’s poor past record in submitting to testing does not inspire confidence that she ceased using drugs during the dependency proceedings. Appellant’s testimony at the termination hearing indicated she was still in denial concerning the extent of her problem with alcohol. Even at the final stages of the dependency proceedings, appellant’s insight into her drug and alcohol problems is questionable.
The court resolved the factual conflict between appellant’s witnesses and those of the psychologists and social workers who managed appellant’s case against the appellant. When sufficiency of the evidence to support a finding or order by the juvenile court is challenged on appeal, reviewing courts determine if there is any substantial evidence to support the conclusion of the trier of fact. All conflicts are to be resolved in favor of the prevailing party. Issues of credibility are questions for the trier of fact. In dependency proceedings, a trial court’s determination will not be disturbed unless it exceeds the bounds of reason. (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.)
We further note that appellant failed to make an adequate showing that maintaining the parental relationship would be in the best interests of the minor. To understand the element of best interests of the minor in the context of a section 388 motion brought, as in this case, shortly before the section 366.26 hearing, we look to the Supreme Court’s decision in Stephanie M. At this stage of the proceedings, a parent’s interest in the care, custody, and companionship of his or her children is no longer paramount. Rather, the focus shifts once reunification efforts end to the children’s needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing 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. (Ibid.)
Appellant showed little interest at the earlier stages of the dependency proceedings in utilizing services or in reunifying with M. Appellant’s meetings with M. in February and March of 2007, toward the end of the dependency proceedings, demonstrated little bond between mother and daughter. Appellant had little successful interaction with M. Appellant’s attendance in parenting classes happened at the very end of the dependency process. Appellant contends at page 18 of her opening brief that she demonstrated an ability to change contrary to the opinions of the psychologists and was amenable to treatment. Although she was trying, appellant’s actual ability to control, care for, and love M. was seriously called into question by the observations of the department social worker who supervised appellant’s later visits.
Provided a dependent child is likely to be adopted, the statutory presumption at the permanency planning stage is that termination is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344 (Lorenzo C.)) In other words, the decision to terminate parental rights at a section 366.26 hearing is virtually automatic if the child is going to be adopted. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.). It is up to a parent or other party to prove that termination would be detrimental. (Lorenzo C., supra, 54 Cal.App.4th at p. 1343.)
Notably, both here and in the juvenile court, appellant ignored her child’s need for permanence and stability in advocating her position. The juvenile court here found that it would not be in M.’s best interests to remain with appellant. The court’s deliberations and findings were thorough, well considered, and supported by substantial evidence in the record.
DISPOSITION
The order denying appellant’s section 388 petition is affirmed. There being no separate challenge to the court’s selection of permanent plans for the child, the court’s section 366.26 findings and orders are affirmed as well.