Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. CK58177, Sherri S. Sobel, Referee.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Kirstin J. Andreasen, Associate County Counsel, for Plaintiff and Respondent.
EPSTEIN, P. J.
Mother Liliana R. appeals from the juvenile court’s orders denying her Welfare and Institutions Code section 388 petition to have her son Michael returned to her custody, and terminating her parental rights. We find no abuse of discretion and affirm the orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
Mother has a long history of drug addiction. Following her arrest for drug possession, she was ordered to complete drug treatment by the criminal court. She enrolled in a program in March 2003, and completed inpatient treatment in September 2003. Michael was born in December 2003. He and his two older half siblings lived with mother in a sober living facility until February 2005, when mother relapsed on methamphetamine and crack cocaine, and left the children with their maternal grandmother.
Michael’s father, Anthony R. (father), notified the Department of Children and Family Services (the Department). Custody of the older children was given to their father through the family law court. About a week later, Michael’s father brought him to a laundromat to see mother. When mother attempted to leave with the child, father laid flat behind the car to prevent her from leaving. Police were called, and they were all taken to the police station.
Anthony R. is not a party to this appeal, and we limit our statement of facts accordingly.
After interviewing the parents, the Department filed a section 300 petition, alleging Michael was at risk based on mother’s history of drug abuse, her current use of drugs despite participation in three rehabilitation programs, and father’s history of drug use and his current use of marijuana. Michael was detained on February 25, 2005, and the parents were ordered to have monitored visits and provide random drug tests.
Mother had two positive drug tests before the jurisdictional hearing on March 18, 2005. The court sustained the petition, removed Michael from his parents’ custody, and ordered the parents to participate in drug counseling, random drug testing, and individual counseling. Visitation was to be monitored.
By the June 17, 2005 review hearing, mother had completed a drug treatment program and was participating in a parenting program. The court ordered the individual counseling portion of the parents’ reunification plan replaced with conjoint counseling, and changed visitation to unmonitored.
At the September 2005 review hearing, the court found the parents were in “100 percent compliance with the case plan” but were engaging in threatening behavior with each other, which precluded sending Michael home.
Mother tested positive for drugs in late October 2005, and promptly enrolled in an outpatient drug treatment program. She completed the three-month program and parenting classes. Mother and father continued their conjoint counseling, and completed a “Parents Beyond Conflict” course. They visited consistently with Michael. At the March 17, 2006 hearing, the court ordered the parents to begin weekend visits. After four successful visits, Michael was returned to his parents’ custody in April 2006.
In late July 2006, mother disclosed to the social worker that she had relapsed, and she tested positive for cocaine. The Department instructed her to enroll in outpatient drug counseling and resume attendance at AA/NA meetings. By September 2006, the social worker reported that the family was in crisis. Mother had been asked to leave the home because of an unconfirmed positive drug test, but it was later determined the positive test did not belong to mother. Still, father would not allow mother to enter the home, and denied her access to Michael. Father called the Department repeatedly with allegations that mother was using drugs, although she continued to test clean. The parents no longer wanted to live in the same home, and mother remained at her mother’s home.
On October 17, 2006, the Department filed a section 387 petition to remove Michael from father’s custody. The petition alleged father had not provided a sanitary or stable home. The court ordered custody to mother alone, and set the matter for a contest. Over the next two months, father continued to make allegations that mother was using drugs. He also claimed she had a boyfriend, the boyfriend had hit Michael, and mother had allowed unmonitored visitation between father and Michael, in violation of the court’s order. Father was reported to have parked outside her residence on several occasions and to have taken photographs of her and a male companion.
After a trial on December 11 and 12, 2006, the court sustained the section 387 petition, and removed Michael from father’s custody and placed him with mother. Father’s reunification services were terminated. He was given unmonitored visitation, conditioned on his voluntarily remaining away from mother.
At 7:36 a.m. on January 25, 2007, a gas company employee went to mother’s apartment for a service call. The outer security door and the inner door were both unlocked. The employee entered and found three-year-old Michael alone in the apartment. The child was sitting near a floor heater, which was on, with blankets near his legs. He was attempting to open a “Cup-O-Noodles” container which was still sealed in its plastic wrapper. The employee asked Michael where his mother was, and he said she had gone to work. After waiting with the child for 30 minutes, he called the police.
The Department detained Michael, and filed a section 387 petition alleging mother had left Michael alone without a plan for his care and supervision. The petition was sustained, and Michael was removed from mother’s custody and placed in foster care. The court set a section 366.26 permanency planning hearing.
Mother was incarcerated for child endangerment and child abandonment, based on the January incident.
On July 18, 2007, mother filed a section 388 petition seeking to have Michael returned to her care. She attached documentation of her participation in individual counseling and programs for anger management, domestic violence, and substance abuse.
In its report for the section 366.26 hearing, the Department described Michael as healthy and developmentally normal. A prospective adoptive home had been located for him. Michael had three visits with the prospective adoptive mother, who was a friend of mother’s, and had known Michael since he was a baby. The Department asked the court to continue the case to await completion of the adoption homestudy. The section 388 and section 366.26 hearings were continued to August 7, 2007.
At the combined section 388 and section 366.26 hearings, mother testified about the programs she attended, and what she had learned. The court denied the section 388 motion, finding mother had not met her burden to show changed circumstances or that it would be in Michael’s best interest to be returned home.
The court then found by clear and convincing evidence that Michael was adoptable, and that there were no exceptions to the adoption preference. The court terminated parental rights, and mother filed this timely appeal.
DISCUSSION
I
Mother claims the court abused its discretion in denying her section 388 petition seeking to have Michael returned to her custody with family maintenance and family preservation services.
Under section 388, the parent of a dependent child “may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.” The parent must establish by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
In support of her petition, mother asserted circumstances had changed in that she had “continued and completed various programs since Michael’s redetention in January 2007. Visitation has been consistent and beneficial to minor.” She claimed the change would be in Michael’s best interest because he “has been raised by mother for most of his life. Mother has stabilized and resolved issues which caused her to fail. Visits have been positive and beneficial to minor. Michael is not in an adoptive home and is to be moved soon. Mother is available and now enjoys a healthy lifestyle which would be of further benefit to Michael.”
The court acknowledged that mother had maintained regular and consistent contact with Michael. What it could not find was that mother had made significant progress in resolving the problems that led to Michael’s removal from her care. At the time of the section 388 petition, mother was participating in additional classes for anger management, domestic violence, substance abuse and parenting, but she had taken many classes before the January 2007 removal, and still relapsed. The fact that mother had been clean and sober for 60 days, since her release from jail, was not sufficient to convince the court that mother now had the stability to provide for Michael’s safety and well-being. Mother had a long history of drug abuse and relapses before Michael was born. She participated in three drug programs in the three years this case had been open, tested clean for months at a time, and then relapsed. In a case that had been ongoing for 30 months with repeated relapses, mother’s 60 recent days of sobriety and additional counseling following a jail sentence did not demonstrate a change of circumstances warranting the requested modification. As mother’s attorney acknowledged, mother did not have evidence of changed circumstance; “what she has is substantial evidence of a changing circumstance leading to a changed circumstance.” “A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The court did not abuse its discretion in finding mother had not shown changed circumstances to support the requested change of order.
The court also was within its discretion in concluding it was not in Michael’s best interest to return him to mother’s custody. In his first year, Michael and his half siblings lived with mother in a sober living facility. But from the time he was 14 months old, Michael had virtually no stability. Mother left him with his maternal grandmother when she moved out of the sober living facility. He was then removed from his parents’ custody and placed in foster care. A year later he was returned to his parents. Three months later, mother had to leave the home because of a suspected dirty drug test and Michael remained with father. The following month, Michael was removed from father’s custody, and custody was given only to mother. Three months later, mother left three-year-old Michael alone in the apartment and the Department removed him from her custody and placed him in foster care. As of the time of the hearing on mother’s section 388 petition, Michael had begun visiting with a prospective adoptive family. Throughout this period, mother had participated in reunification services to address her drug and relationship problems and parenting issues.
Thus, between February 2005 and August 2007, Michael’s custody had changed six times. Mother visited him consistently during this period, but she had not been able to provide stability for him, nor was she yet in a position to assume his custody. More importantly, because of mother’s history of relapse, even if she were ready to regain custody, the court could not have confidence that Michael’s placement with her would be stable. On this record, we find no abuse of discretion in the court’s determination that it was not in Michael’s best interest to return him to mother’s custody with family maintenance and family preservation services.
II
At a section 366.26 hearing to select a permanent plan, if the court finds a child adoptable and finds that adoption is in the best interests of the child, it must terminate parental rights unless one of four specified circumstances is established. The Department had identified an adoptive family for Michael. According to the adoption worker’s July 25, 2007 report, the prospective adoptive mother is a friend of the birth family, and has known Michael since he was a baby. Michael had three positive visits with the prospective adoptive family. “He has bonded well with the boys of the prospective adoptive mother, and is very comfortable with his prospective adoptive mother.” This supports the conclusion that Michael was adoptable.
Mother claims the evidence established the applicability of section 366.26, subdivision (c)(1)(A) exception (now (c)(1)(B)(i)) to the adoption preference, where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” To satisfy this beneficial relationship exception, “the parent has the burden of showing either that (1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental relationship would be detrimental to the child.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (Ibid., italics omitted.) The court must find that the natural 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.)
The Department acknowledges that mother maintained regular visitation with Michael during the course of the dependency, except for the five months of her incarceration. Mother also occupied a parental role with Michael during the first 14 months of his life, before he was declared a dependent child, and for another nine months when he was returned to her care.
The issue is whether there was substantial evidence to support the finding that Michael would benefit more from adoption than from maintaining a relationship with mother. Mother testified that she has two monitored visits with Michael twice each week, and speaks to him on the telephone almost every day. According to mother, during her telephone calls to Michael, she would sing songs with him, do the A-B-C’s, and talk about what he ate. He would ask mother about his grandmother and his sister, and tell her what he would like her to bring to their next visit. Mother testified that her visits with Michael were good, and that her mother went with her for the visits. Michael refers to mother as “Mommy Lillie.” Asked if he seemed concerned at the end of the visits that mother was leaving, she replied, “Sometimes he wants to go with me but he can’t.”
The evidence established that Michael and mother had a relationship, but it did not show that the benefits from maintaining the relationship outweighed the benefits of providing Michael with a stable permanent adoptive home. There was no evidence that Michael suffered detriment during the five months when he had no visits with mother because she was incarcerated. Nor was there evidence that he had difficulty separating from mother at the end of his visits. The court did not err in finding that the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) did not apply.
DISPOSITION
The orders are affirmed.
We concur: WILLHITE, J. MANELLA, J.