Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.Nos. JD16779 & JD16780
Duffy, J.
Karen H. appeals from the juvenile court’s order ending her parental rights under Welfare and Institutions Code section 366.26 and denying modification under section 388. She claims that the court abused its discretion in denying her modification motion to reinstate reunification services and that there is no substantial evidence to support the court’s determination that her parental rights must be ended.
All further statutory references are to the Welfare and Institutions Code.
We will affirm the order.
FACTS
Karen H. is the mother of Michael K., Jr., born October 2002, and Kayla K., born March 2004. The children’s father is Michael K., Sr. (hereafter Michael K.).
The children were born into a problematic household and did not remain long in it. A social worker’s report dated December 4, 2006, summarized that “[i]n their short lives, Michael and Kayla have spent very little time with their parents. Kayla was one month old and Michael was one and a half years old when they went to live with their paternal grandmother in April 2004. They lived with the paternal grandmother and their cousins for one year. When they returned to San Jose with their parents in April 2005, it was only a short time before [Child Protective Services] was involved . . . and . . . the children were placed in protective custody in January 2006. Since then, they have been in four placements.”
A jurisdiction/disposition report dated February 28, 2006, recited as follows:
1. Karen H. has suffered from a number of mental illnesses, including bipolar disorder, schizophrenia and a personality disorder. She has been prescribed medications to control them but has not taken them consistently. Michael K. (who the record shows is currently 26 years old) began to amass a lengthy criminal record shortly after reaching adulthood, mainly for drug and domestic violence offenses.
2. In January of 2004, Michael K. pushed, grabbed, or kicked Karen H., who was then about seven months’ pregnant with Kayla, and the Milpitas Police Department responded. At the time Michael K. was on probation and was enrolled in programs to quell his domestic violence. Karen H. was referred to a parenting class.
3. In 2005, according to the Milpitas Police Department, Karen H. bit Michael K.’s finger during an argument. Michael K. responded by hitting Karen H. and pushing a lit cigarette into Karen H.’s nostril. The family received services pursuant to a voluntary family maintenance plan.
4. Toward the end of 2005 a social worker visited the house on two occasions and found it and the children to be disheveled and dirty. The family continued to be referred to voluntary family services. The father did not comply with the agreed-to family services requirements and Karen H. tested positive twice for methamphetamines in December 2005.
5. On January 31, 2006, the children were placed in protective custody pursuant to a warrant petition that alleged that the parents’ substance abuse problems and Karen H.’s mental illness prevented them from adequately caring for the children. The children continued to be dirty and Michael K. refused services and remained an alcoholic, while Karen H. admitted consuming methamphetamines and had been removed to a residential drug rehabilitation program that would not accommodate children.
The juvenile court sustained petitions on behalf of the children on March 30, 2006. The petitions were based on failure to protect the children (§ 300, subd. (b)). In addition to the difficulties described above, the petitions alleged that Michael K. had been arrested for lewd conduct in front of the children and that the parents had allowed the children’s paternal grandfather, a registered sex offender, to live in their home (although the petition did not allege that the parents knew of the paternal grandfather’s status). The court ordered reunification services directed toward curing the parents’ substance abuse, domestic violence, and child-rearing problems. It directed that the children live either in foster care or with a relative or extended family member.
On June 28, 2006, the social worker responsible for this case prepared an interim review report. Karen H. had been living in a transitional housing unit that could have accommodated her and the children if she was given reunification services. Karen H. became unhappy with the facility, however in part because the other clients were too serious about recovering from substance abuse problems, the atmosphere was too regimented, and Karen H. did not feel that drugs were a problem for her. Karen H. quit the program. The facility’s coordinator, entering Karen H.’s room after her departure, discovered a large quantity of legally prescribed lithium tablets and other medications in the room, a violation of facility rules.
In an addendum report also prepared on June 28, 2006, the social worker reported that Karen H. did not arrive to visit the children on June 27 and missed a counseling session on June 26. In addition, she had three “no show” drug tests and one “dilute” test. Karen H.’s sponsor reported that she had not spoken with her since May 30.
The social worker reported that Michael K.’s compliance with the provisions of his reunification plan was (as we interpret the record) difficult to determine but possibly marginal or completely unsatisfactory.
A six-month review hearing was held on September 6, 2006. In a status review report prepared for that hearing the social worker recommended that reunification services for both parents be ended and that the matter be set for a selection and implementation hearing under section 366.26. The children were residing in a confidential emergency shelter home. Karen H. had failed to comply with almost every element of her case plan. She had been inconsistent in attending counseling sessions and taking her medications. She had dropped out of a domestic violence support group. She was discharged from a parenting class for poor attendance. Karen admitted she had not been attending 12-Step meetings and had not been in contact with her sponsor. She had not submitted to drug testing since June 14, 2006. And Michael K.’s compliance with the requirements of his reunification plan was dismal—he had complied minimally or not at all with each element of his plan. He had been arrested on July 3 and 9, 2006, for public drunkenness. The juvenile court ended reunification services for both parents.
On September 12, 2006, respondent herein placed the children with their maternal grandmother in Michigan. The placement proved to be dangerous and Michigan child welfare authorities urged that the children return to San Jose, which the juvenile court ordered on October 16, 2006. The children were placed in an emergency foster care home on October 18, 2006.
On December 1, 2006, Karen H. submitted a section 388 request asking that family reunification services be resumed with regard to her at least until the 12-month review date of February 28, 2007. She stated that she was now regularly seeing her therapist, was not taking her prescribed medications because she was pregnant and her health-care provider did not permit it, had been attending Narcotics Anonymous meetings, was meeting with her sponsor, had been “clean and sober” since August 1, 2006, was consistently visiting with the children, was working and had rented a room, and was willing to undertake a reunification plan.
On December 28, 2006, Michael K. was told by a superior court judge that he was required to register as a sex offender for a prior offense. The judge directed him to lodge himself at a local inn pending a future court appearance. Michael K. complied with neither instruction. On January 6, 2007, he was again arrested for public drunkenness.
On February 5, 2007, the social worker prepared an addendum report opposing the section 388 request and recommending that the parents’ parental rights be ended. In a reprise of events between Karen H. and Michael K. a few years before, Karen H. was now suffering domestic violence at the hands of her “most recent boyfriend” despite being pregnant. Although Karen H. was currently seeing her therapist, both the therapist and Karen H. recognized she tended to become inconsistent in ensuring she received therapy. Karen H. had not drug-tested since September, so there was no verification of her sobriety claim; moreover, Karen H. had told someone else she used marijuana or hashish in October of 2006. The children’s attachment to Karen H. was “weak and indecisive” and they would “regress to difficult behaviors . . . after the visits.”
On February 15, 2007, the social worker prepared an addendum report that stated a concurrent home for the children had been found. The children had had three visits with the foster parents and one with both the foster parents and their two children. “The visits have gone very well and the family is looking forward to . . . transitioning the children into their home.”
The sections 366.26 and 388 hearing took place on February 15, 2007. At the outset, Michael K.’s counsel stated that he had been unable to contact his client and that he had received information that Michael K. did “not wish to participate in this process.” After counsel stated that he had nothing to contribute under the circumstances, the juvenile court excused counsel from the rest of the proceedings.
The juvenile court then proceeded to hear evidence on the section 388 matter. Karen H. testified that her children had been removed from her care about January 7, 2006. Because Karen H.’s therapist was not useful and had not been since 2004, she had discontinued therapy a few months ago and was searching for another therapist. She had last used illegal drugs in September of 2006 and stopped when she learned she was pregnant. She was attempting to get back into drug treatment and had an intake appointment the next day. She was attending Narcotics Anonymous–Alcoholics Anonymous meetings at least twice a week. She had separated from her former sponsor, with whom she had been living, because the sponsor had come home drunk and had allowed a drug-abusing family member to move into the house. Karen H. was looking for another sponsor. She had not missed a single visit with her children since their return to San Jose from Michigan. The visits had been going well and her son had volunteered that he and his sister wanted to be with her. She did not have her own residence and was staying with her parents in Gilroy, who provided a safe and stable home environment, but she wished to move to a shelter or low-income housing. She was working full-time with her father.
A social worker, Gayle Peitso, testified first on behalf of Karen H. that Kayla missed her mother and that Michael K., Jr., was attached to his mother. Testifying for respondent herein as an expert in the placement of abused and neglected children, Peitso stated that an adoptive home had been located that would be available for both Michael K., Jr., and Kayla and that would meet their familial needs. The adoptive parents “are very committed to the adoption.” It would be detrimental to the children to delay placing them in stable and permanent homes while Karen H. was given additional reunification services.
Regarding adoptability, the juvenile court had also received, and later considered, the social worker’s December 4, 2006, and February 5 and 15, 2007, reports. The gist of the reports is that both children were highly adoptable. Both were under age 12 and not located in a residential treatment facility. As of December 4, 2006, the social worker could report that “Kayla is a pretty, bright eyed and shy 2 1/2 year old. . . . [S]he appears to be developmentally on target for her age level . . . . Kayla likes to play with dolls and loves animals. She enjoys having books read to her and spending one on one time with adults. She also enjoys going to the park, the library and traveling to local attractions.” In the same report, the social worker opined that Michael K., Jr., “is a very handsome and friendly 4-year-old. . . . [H]e appears to be developmentally on target for his age level . . . . Michael does well with a lot of structure and activities to keep him busy. He is very energetic and likes to have room to run and play. He enjoys being with other children, but especially likes older children that he can run, wrestle and explore with. He also enjoys being with adults and going to the park, the library and traveling to local attractions.” The children had reached their developmental targets even though, as noted, they had spent little time with their parents during their entire lives.
After argument, the juvenile court denied Karen H.’s section 388 request. The court stated that Karen H. had not made consistent progress with her case plan and even a year after the children’s removal from her home she was only beginning the process of recovering from her difficulties. “I . . . have to look to the best interest of these children, to their need for stability, to their need for consistency and . . . not to wait any longer for you to get clean and sober and stay clean and sober.” On the same evidence, the court ruled that the parents’ parental rights must be ended and freed the children for adoption. The court found that the children “are adoptable and likely to be adopted.” The court, responding to the argument of Karen H.’s counsel that the children would benefit from a continuing relationship with Karen H. within the meaning of section 366.26, subdivision (c)(1)(A) and it would be harmful to sever the relationship, also ruled that no exception under section 366.26, subdivision (c)(1)(A) existed that might provide a counterweight to its negative conclusions about Karen H’s situation.
DISCUSSION
I. Denying Section 388 Motion
Karen H. claims that the juvenile court abused its discretion in denying her section 388 motion to continue reunification services because (1) she had sufficiently recovered from her substance abuse, (2) the children’s recent change of placement amounted to a changed circumstance, (3) she had shown generally that the children’s best interests would be served by resumption of reunification services, and (4) she had shown a substantial probability that the children would be returned to her care in another six months at a 12-month review hearing if reunification services resumed.
“[T]he juvenile court’s task was to determine whether the [mother, as the moving party] had demonstrated by a preponderance of the evidence that there was new evidence or a change of circumstances demonstrating that it was in [the children’s] best interests that the . . . order . . . be changed, modified or set aside.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Whether or not the order should be modified pursuant to section 388 rests within the sound discretion of the juvenile court “and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.)
The problems that led to the dependency proceedings were Karen H.’s and Michael K.’s abuse of drugs, their inability to provide a safe and healthy environment for the children, and domestic violence between the parents. Another major problem was Karen H.’s mental illnesses and her inconsistency in following a treatment program.
With regard to Karen H., the juvenile court could reasonably find that there was no new evidence or changed circumstances that would warrant granting the section 388 motion. Karen H. had admitted, either in court or in an out-of-court statement, to using drugs in September and October of 2006. She had stopped her therapy sessions, ostensibly because she found the therapist unsatisfactory. Because of her pregnancy, she was not taking her psychotropic medication. External factors beyond the control of Karen H. may have influenced her decision to abandon therapies, but the court was entitled to consider the objective circumstances of Karen H.’s situation without going behind them to find justifications. As noted, it is the children’s best interests that the court must consider in addressing a section 388 motion. Finally, not only did Karen H. provide no meaningful evidence that she could offer her children stability and safety, but she provided evidence that she was even prepared to deprive herself of those benefits. She testified without elaboration that she planned to leave her parents’ home—“[t]hat’s not permanent”—and was “looking into” relocating either to a shelter, which would not necessarily provide the children with an adequate home environment, or low-income housing, which could in theory provide such an environment. But her testimony regarding low-income housing reflected an unrealistic goal, as there was no showing of the means by which she might achieve it. Her testimony amounted to offhand references not backed by any particular plan.
“ ‘ “[U]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.” [Citation.] “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” ’ ” (In re Mary G. (2007) 151 Cal.App.4th 184, 204.) As respondent herein argues in substance, the juvenile court could reasonably conclude that to grant Karen H.’s request would serve only to delay stability in the children’s lives by engaging in another round of fruitless reunification efforts. Under these circumstances, we cannot say that the juvenile court abused its discretion in denying her motion.
II. Finding Children Adoptable
Karen H. claims that there was insufficient evidence before the juvenile court to support its determination that the children were adoptable.
The juvenile court was required to find by clear and convincing evidence that the children were likely to be adopted in order to terminate parental rights. (§ 366.26, subd. (c)(1).) Our role is to decide whether the record contains substantial evidence from which the lower court could find clear and convincing evidence requiring the termination of parental rights. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153-1154.)
“ ‘Thus, on appeal from a judgment required to be based upon clear and convincing evidence, “the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” [Citation.]’ ” (In re J. I. (2003) 108 Cal.App.4th 903, 911.)
A determination of adoptability is the result of the juvenile court’s focus on Michael K., Jr., and Kayla, including whether their “age, physical condition, and emotional state may make it difficult to find an adoptive family.” (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) The identification of a prospective adoptive family is not determinative of a child’s adoptability, though it is a factor to be considered. “ ‘[I]t is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” ’ ” (In re David H. (1995) 33 Cal.App.4th 368, 378.)
Karen H. emphasizes that the children had not yet been placed with the family that the social worker described as a prospective adoptive family. But as noted, that circumstance is not legally determinative of adoptability. (In re David H., supra, 33 Cal.App.4th at p. 378.) The children had visited with that family on four occasions. Those visits had gone well and the family was looking forward to transitioning the children into their home. The social worker testified as an expert that the family was committed to adopting the children and that the children were adoptable. This testimony constituted substantial evidence. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1426-1427 [social worker’s testimony on sibling separation issue provided substantial evidence to support juvenile court’s determination].) Moreover, the evidence before the juvenile court was that the children were basically well adjusted and appealing youngsters. They were happy, lively, outgoing, and developmentally normal. They were very young. Karen H. points to evidence that Michael K., Jr., showed signs of distress at times and argues that it could not be known how well the children would do in an adoptive placement, but we reiterate that the existence of contrary evidence is not the test; rather, the test is whether substantial evidence supports the juvenile court’s determination that clear and convincing evidence existed that the children were likely to be adopted. In light of the positive evidence of the children’s development and personalities before the juvenile court, we conclude that substantial evidence in support of its determination exists.
CONCLUSION
The juvenile court’s orders denying Karen H.’s motion under Welfare and Institutions Code section 388 and ending her parental rights under Welfare and Institutions Code section 366.26 are affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.