Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment and order of the Superior Court of San Diego County No. J516140, Cynthia A. Bashant, Judge.
McCONNELL, P. J.
T.M. appeals from a judgment terminating parental rights to her son, M.M., under Welfare and Institutions Code section 366.26. She also appeals from an order denying her petition for modification under section 388. We affirm the judgment and order.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
M.M., born October 2005, is the son of T.M. In January 2006, after a physical altercation with a boyfriend, T.M. was arrested on charges of domestic violence, child endangerment and resisting arrest. Law enforcement took M.M. into protective custody. The San Diego County Health and Human Services Agency (Agency) initiated dependency proceedings. (§ 300, subd. (b).)
Paternity was not established.
T.M. had a history of domestic violence, substance abuse and prior involvement with child protective services. At the time of her arrest, she was involved in an often violent relationship with a habitual methamphetamine user. The Agency had reports from a previous dependency proceeding that indicated T.M. was diagnosed with bipolar disorder. T.M. tested positive for methamphetamine in June 2005, while pregnant with M.M.
In February 2006, the Agency placed 14-week-old M.M. in the foster care home of his current caregivers.
In March 2006, the court sustained the section 300 petition, removed M.M. from parental custody and ordered a plan of reunification services. The court ordered T.M. to enroll in the Substance Abuse Recovery Management System (SARMS) program, undergo a psychological evaluation after a period of sobriety and comply with her case plan. The Agency referred T.M. to individual counseling, a domestic violence support group and a parenting education program. The case plan also required T.M. to meet with a public health nurse (PHN) to learn principles of proper infant nutrition and development. Initially, the Agency scheduled twice weekly visits between T.M. and M.M. but reduced visits to one a week when T.M. did not attend scheduled visits.
From March to September 2006, T.M. visited M.M. four times. She inappropriately fed and dressed M.M. on several visits. T.M. met with a PHN once. The PHN terminated the service when T.M. ignored her instructions on how to feed M.M. appropriately. T.M. was terminated from SARMS after she missed six scheduled intake appointments. She ignored an August court order directing her to re-enroll in SARMS.
On October 8, 2006, T.M. married Donald A. Donald A. had a criminal record that included an arrest in 2000 on eight counts of distributing matter depicting minors in sexual conduct (child pornography) and one count of possession of a controlled substance for sale (sale of methamphetamine). He pled guilty to reduced charges. Donald A. was arrested in 2002 on charges of sale of methamphetamine, distribution of obscene matter of a minor to a minor and possession of child pornography. He pled guilty to distribution of obscene matter and felony possession of a controlled substance.
At the six-month review hearing in October 2006, the court found that T.M. made no progress in mitigating the causes for M.M.'s dependency. The court terminated reunification services and set a section 366.26 hearing.
On March 26, 2007, T.M. filed a petition for modification under section 388 (petition). T.M. asked the court to modify its October 2006 order by granting her an additional six-month reunification period or by returning M.M. to her care. She alleged the modification was in M.M.'s best interest because she completed services, maintained her sobriety, and had consistent, appropriate weekly visitation with her son since November 2006.
On May 14, 2007, T.M. tested positive for methamphetamine.
The section 388 and section 366.26 hearings were held on June 22 and 27, 2007. T.M. testified that after the court terminated reunification services she contacted Parentcare Family Recovery Center. She was now in the fourth phase of the program, relapse prevention, and had completed the initial 26 weeks of parenting, domestic violence and anger management classes. T.M. had been diagnosed with posttraumatic stress disorder and major anxiety disorder, and was on medication.
T.M. acknowledged she recently tested positive for drugs. She claimed that a friend put drugs in her juice.
T.M.'s chemical dependency counselor testified that of T.M.'s 14 drug tests, one test was positive for methamphetamine. T.M. understood her addiction and she was taking the necessary steps to deal with the disease. T.M.'s two therapists opined that T.M. made progress addressing anger management, domestic violence and symptoms of posttraumatic stress disorder.
Eileen Powell, a family visitation monitor, testified that she believed there was a bond between T.M. and M.M. M.M. reached for T.M. every time he saw her and cried when she left the visitation room. In June 2007 M.M. called T.M. "Mommy" for the first time.
Social worker Brooke Guild testified that she observed at least 12 visits between M.M. and T.M. She believed T.M.'s relationship to M.M. was more like an extended family member than a parent. M.M. was very bonded to his caregivers and to his foster sibling. Guild opined that it was not in M.M.'s best interest to be placed with T.M. T.M. recently tested positive for methamphetamine and would not accept responsibility for her relapse. In addition, T.M. was dependent on Donald A. for her needs. Their relationship was volatile. Donald A.'s convictions for drug use and child pornography raised serious concerns.
The court found that T.M. had significantly improved her mental health and anger management. However, she did not demonstrate changed circumstances in her drug use or in her dependence on partners whose behavior presented a risk to M.M. Further, the court could not conclude that it would be in M.M.'s best interest to disrupt his stable placement in a prospective adoptive home. The court denied T.M.'s petition. The court found that M.M. was adoptable and that his need for stability outweighed continuing his relationship with T.M. The court terminated parental rights.
DISCUSSION
A
The Court Did Not Abuse Its Discretion When It Denied the Section 388 Petition
T.M. contends the juvenile court erred when it denied her request to return M.M. to her care or to grant an additional period of reunification services. T.M. argues that by addressing her previous shortcomings she demonstrated a change of circumstances sufficient to permit the court to modify its prior order setting a section 366.26 hearing. T.M. asserts she passed 92.9 percent of her drug tests, obtained appropriate medical and therapeutic treatment for a mental health condition, completed a parenting class and learned new skills to control her anger. T.M. asserts that a modification of the prior order is in M.M.'s best interest.
The Agency contends T.M. did not demonstrate changed circumstances. The Agency asserts the requested modification would not serve M.M.'s best interest. Minor's counsel joins with the Agency's arguments.
Under section 388, a parent may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The parent has the burden to show a change of circumstances or new evidence and that the child's welfare requires the modification sought. (Cal. Rules of Court, rule 5.570(h)(1).) The parent must show the proposed modification is in the child's best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
We review the grant or denial of a petition for modification under section 388 for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . . ' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion. [Citation.]" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
In evaluating whether the petitioner has met his or her burden to show changed circumstances and that the proposed modification is in the child's best interests, the trial court should consider: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532 ["While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion"].)
The court did not abuse its discretion when it determined T.M.'s circumstances were not sufficiently changed to allow the court to safely return M.M. to parental custody or to provide an additional period of reunification services. The problems that led to M.M.'s dependency included T.M.'s substance abuse, poor mental health, chronic domestic violence and dependence on men whose drug dependence and criminal acts presented a serious risk of harm to those around them. T.M. demonstrated a lack of awareness of appropriate child care during her initial visits with M.M. She resisted treatment and would not participate in court-ordered services, and her problems persisted throughout the reunification period.
Although T.M. began an intensive outpatient treatment program in November 2006, she tested positive for methamphetamine five weeks before the section 388 hearing. Her response to her positive drug test was to blame another person for putting drugs in her juice. The court could reasonably conclude that T.M. did not show changed circumstances. T.M. did not demonstrate a substantial period of sobriety during the dependency proceedings. She did not take responsibility for her relapse despite six months of intensive substance abuse treatment and therapy.
The record also permits the reasonable inference that T.M. did not mitigate the risk to M.M. from domestic violence, drug use and criminal activity in her household. The case began when T.M. had a physical altercation with a boyfriend who had a criminal and substance abuse history. In October 2006 T.M. married a man who had been involved in the sale and use of methamphetamine and the procurement and distribution of child pornography. In late January 2007 T.M. and Donald A. had a "loud and visible conflict" outside Agency offices. The social worker and a security guard found it necessary to intervene. T.M.'s therapist opined that the incident raised "red flags" of domestic violence. Thus, the record supports the court's finding that T.M. did not show changed circumstances with respect to her history of problematic relationships and domestic violence.
The court could reasonably determine that M.M.'s bonds with his caregivers, with whom he had lived for 17 of his 20 months, were stronger than his bonds with T.M. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 531-532.) The record shows that at the time of the hearing T.M. had not cared for 20-month-old M.M. since he was 12 weeks old. She did not visit him regularly until after his first birthday. The social worker opined that T.M. did not have a parental role in M.M.'s life. M.M. was deeply bonded and attached to his caregivers, and the caregivers were committed to him.
The court credited T.M. for seeking treatment, improving her mental health condition and managing her anger. The court also found that T.M. had not resolved her substance abuse problems and her pattern of forming problematic relationships. In view of the instability in T.M.'s home, the court determined that it was not in M.M.'s best interests to remove him from a stable prospective adoptive home. The court reasonably determined that T.M. did not show a legitimate change of circumstances and that M.M.'s welfare did not require the modification sought. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 531-532; Cal. Rules of Court, rule 5.570(h)(1).) The court's findings are fully supported by the record.
B
Substantial Evidence Supports the Court's Finding that the Beneficial Parent-Child Exception Does Not Apply
T.M. asserts the court erred when it determined that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) does not apply to preclude termination of parental rights. She contends the court's findings are not supported by substantial evidence.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
At a permanency plan hearing, the court may order one of three alternatives—adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In order to overcome the statutory preference for adoption, the parent must prove that he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
We recognize that interaction between parent and child will almost always confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) However, in the context of section 366.26, subdivision (c)(1)(A), "benefit" means that the 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." (Autumn H., at p. 575.) "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." (Ibid.)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party, and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
M.M. was removed from T.M.'s custody when he was approximately 12 weeks old. The record indicates she did not adequately parent him during this time. A concerned person told the Agency that she heard M.M. crying and went into the home. T.M. was asleep and could not be awakened. The Agency received reports that T.M. put vodka in M.M.'s orange juice and blew marijuana smoke in his face. T.M.'s visits were reduced to one hour weekly because she did not appropriately parent M.M. and was not amenable to instruction. Despite the opportunity to exercise regular visitation during the reunification period, T.M. visited her son only four times in six months.
From November 2006 to June 2007, T.M. had supervised visits with M.M. one hour each week. The social worker opined that T.M.'s relationship with M.M. was like that of an extended family member rather than a parent. T.M. did not demonstrate any parental responsibilities. She did not attend M.M.'s medical appointments or telephone the caregiver to ask about his development and well-being. Thus, the record supports the conclusion that T.M. did not occupy a parental role in M.M.'s life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Elizabeth M., supra, 52 Cal.App.4th at p. 324.)
To the extent T.M.'s relationship with M.M. was parental in nature, the record supports the court's determination that the benefit of continuing the parental relationship did not outweigh the well-being M.M. would gain in a permanent home with new, adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The record shows that T.M.'s circumstances were not stable and presented a substantial risk of detriment to M.M.'s well-being. Substantial evidence supports the court's finding that termination of parental rights would not be detrimental to M.M., and that he would greatly benefit from the security of a stable, permanent home with a committed, capable adoptive parent. (§ 366.26, subd. (c)(1)(A); Autumn H., at p. 575.)
DISPOSITION
The judgment and order are affirmed.
WE CONCUR: BENKE, J., AARON, J.