Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court No. BK01219 of Los Angeles County. Jan Levine, Judge.
Michael A. Salazar, under appointment by the Court of Appeal, Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Owen L. Gallagher, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, Acting P. J.
Mother Darla M. appeals from termination of her parental rights in M. We affirm.
FACTS AND PROCEEDINGS
M. was born in 1999. At birth, she tested positive for methamphetamine. The dependency court sustained a petition filed by respondent Department of Children and Family Services (the department) making M. a dependent of the court under section 300 of the Welfare and Institutions Code. In 2002, the case was closed and the court terminated its jurisdiction, with M. remaining at home with mother. That petition was not, however, the first or last involving mother. Respondent had filed another petition years earlier to make mother’s now-adult son, Ricky, a ward after he fell through an open window when he was two years old and became a paraplegic from the fall. Mother never reunified with Ricky and he remained in foster care for the rest of his childhood.
Subsequent statutory references are to the Welfare and Institutions Code.
In December 2005, when M. was six years old, deputy sheriffs arrested mother when they found methamphetamine and drug paraphernalia accessible to M. in mother’s home. Consequently, the department filed a new section 300 petition, alleging mother could not care for M. because of her more than 30-year history of drug abuse. The department placed M. with an adult brother (not Ricky) and recommended no family reunification services for mother because she had not reunified with Ricky. (§ 361.5, subd. (b)(10) [court need not order reunification services if parent previously failed to reunify with another child].)
Mother entered a drug and alcohol treatment facility in January 2006. She also pleaded no contest to the petition’s allegations, which the court sustained. At the disposition hearing in February 2006, the court ordered monitored visitation for mother and M., but no reunification services. The court also scheduled a permanent plan hearing for later in the year.
Three months later in May 2006, M.’s brother asked the department to remove her from his home. She was suffering auditory hallucinations, and he could not control her. She acted out sexually and had tried to suffocate her three-year-old nephew. In response, the department placed M. with foster parents, who have since become her prospective adoptive parents.
In the meantime, mother had been making progress since moving into her residential treatment center. She had, among other things, been sober for four months, submitted to random drug tests with negative results, and attended parenting and anger management classes. Accordingly, she filed a petition in June 2006 under section 388 alleging that a change of circumstances justified the court’s modifying its dispositional order. While accepting the unlikelihood of the court’s placing M. with her, mother’s petition asked for liberalized visitation and family reunification services.
The court granted mother a hearing on her petition, but denied the petition after the hearing. The court praised mother’s progress toward sobriety. It nevertheless found her by-then half-year of sobriety was too recent, when coupled with M.’s psychiatric and behavioral problems, to make reunification services in the child’s best interests. The court did, however, liberalize visitation to three hours a week at mother’s treatment facility. Mother appealed from the court’s order, which we affirmed in an unpublished decision in May 2007.
In the meantime while her first appeal was pending in February 2007, mother filed a second section 388 petition. She again requested reunification services and asked for further liberalization of visitation. In support of her petition, she noted she had completed her residential substance abuse program since her first section 388 petition and graduated to a sober living program. Also, she had passed more than 59 random drug tests without a dirty result or missed test. Finally, she was participating in a 12-step program and enrolled in parenting courses. After granting a hearing on the petition, the court denied the petition because mother’s sobriety remained a recent phenomenon set within more than three decades of drug abuse, making reunification services and expanded liberalization of visitation not in M.’s best interests.
After denying mother’s second section 388 petition, the court proceeded to a contested hearing on termination of parental rights. (§ 366.26.) During the hearing, M. testified she wanted to be adopted by her foster parents, whom she called “mom and dad” and the “most important” people in her life. She acknowledged adoption might mean she would never see mother again. The prospect of not seeing mother made her “feel sad but I still want to live with [my foster parents]” and, because she enjoyed visiting mother, “see my mom too.” She expressed her love for her mother. Given her druthers, she wanted to live with all three.
The court found mother had availed herself of the visitation order to see M. regularly. It concluded, however, that the benefits to M. of adoption outweighed the price she would pay from termination of mother’s parental rights. Accordingly, the court terminated those rights. This appeal followed.
DISCUSSION
1. Denial of Second Section 388 Petition
Mother contends the court erred in denying her second section 388 petition. We review for abuse of discretion a dependency court’s denial of a section 388 petition. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A parent who seeks modification of a dependency order based on changed circumstances bears the burden of showing the proposed modification is in the minor’s best interests. (In re Stephanie M., at p. 317; In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Mother’s efforts at turning her life around are truly praiseworthy. When the department declined to provide reunification services, mother implemented her own homegrown reunification plan. She enrolled herself in a residential treatment program, where program staff thought so highly of her they promoted her to house monitor. She joined a 12-step program. She participated in drug and psychological counseling. And by the time of her second section 388 petition, she had passed scores of random drug tests during 13 months of sobriety. She understands that recovery is a lifelong enterprise.
Mother did not, however, persuade the dependency court that reunification services and expanded visitation were in M.’s best interests. Mother equivocated whether she would guarantee that M. would continue to receive the psychiatric treatment and medication she needed. Mother seemed oblivious, or in denial, of evidence suggesting her former boyfriend had molested M. And although mother had been sober for 13 months, she had spent almost that entire time in a live-in treatment facility. The dependency court reasonably was concerned that mother had yet to maintain sobriety in a less structured environment outside a residential facility, where life’s challenges might make the temptation of illegal drugs more alluring. (See In re Mary G. (2007) 151 Cal.App.4th 184, 206 [almost 4-month sobriety not compelling given 23-year history of abuse]; In re Amber M. (2002) 103 Cal.App.4th 681, 686 [17-year abuse; 372-day sobriety]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [7-month sobriety].) Once reunification services end (or are never offered), a dependent minor’s interest in permanency and stability prevails over a parent’s interest in resuming the parent/child relationship. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Given mother’s lengthy history of drug abuse and questions about her ability to care for M., the court did not abuse its discretion in concluding that the cost to M. from delaying her progress toward adoption by ordering reunification services and expanded visitation was too high.
2. Termination of Parental Rights
Adoption is the preferred permanent plan for a dependent child who cannot be reunited with her parent. (In re Celine R. (2003) 31 Cal.4th 45, 49, 52-53; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The Legislature has created an exception for adoption, however, when termination of parental rights would harm a child who has an ongoing parental/child relationship with a noncustodial parent. (§ 366.26, subd. (c)(1)(A); In re Angel B. (2002) 97 Cal.App.4th 454, 467.) The exception applies when the benefits to the child from permitting the relationship to continue outweigh the price the child will pay from losing an adoptive family’s permanency and stability. (In re Jamie R. (2001) 90 Cal.App.4th 766, 773; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Mother bears the burden of proving the exception’s application. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The exception first requires regular contact between parent and child. The trial court found mother satisfied that requirement. The exception also requires the parent to play a parental role in the child’s life. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) A parental role means more than the loving attachment that commonly arises between children and the adults who take care of them. (In re Andrea R., at pp. 1108-1109.) It is instead the type of relationship that grows from nearly daily contact when the parent shoulders the quotidian tasks of child-rearing involving “day-to-day interaction, companionship and shared experiences.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
Here, the court found mother had not regularly taken care of M. in the preceding year, and had not taken care of her at all the first few years after she was born. Mother counters that she and M. had been close before M.’s removal from her custody in December 2005, and that since her removal she and M. have enjoyed their weekly visits. M. testified her wish was to live simultaneously with mother, her adoptive parents, and “a unicorn.” Such a poignant desire speaks of the strength of M.’s love, but the dependency court’s task was to identify the safest, most secure, and healthiest place for M. to live. As the court noted:
“I have to say that whenever children testify I am . . . frequently in awe of the strength and resilience they display in a situation that would be so intimidating for anyone of any age . . . sitting there and having questions asked of them by an array of adults they don’t know . . . . [¶] They ask very difficult questions and [M.] did not disappoint. She was so brave and so clear and so strong . . . and I think . . . [t]hat some of that goes to [mother]. That she got a foundation of love and she has a very strong little character, . . . [but] her experiences with [mother] have not been positive. Living with a mom who is using and sexual abuse, etcetera, just are not what we would wish for our children. [¶] . . . I think it was abundantly clear that she, as much as she loves [mother] and torn as she does feel, she feels strongly that she wants to be adopted by the [foster parents]. She feels loved by them. She feels safe with them, she feels secure with them and she said all of this on the record knowing that [mother was] hearing it and that must have been very hard for her.”
Here, the choice lay between M.’s prospective adoptive parents and mother. The court did not abuse its discretion in concluding M.’s home should be with her adoptive family.
DISPOSITION
The order denying mother’s section 388 petition dated April 6, 2007, and the order terminating parental rights are affirmed.
WE CONCUR: FLIER, J., EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.