Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County Ct. No. J1251773 of Santa Barbara James E. Herman, Judge
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Appellant E.G.
Lee Gulliver, under appointment by the Court of Appeal, for Appellant R.S.
Dennis A. Marshall, County Counsel, Toni Lorien, Deputy County Counsel, for Respondent.
PERREN, J.
E.G. (mother) and R.S. (father) appeal from an order of the juvenile court denying their petitions for modification (Welf. & Inst. Code, § 388), and terminating their parental rights as to daughter M.S. (§§ 388, 366.26.) They contend the juvenile court abused its discretion in denying their section 388 petitions. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
M.S. was born in February 2007 and taken into custody by Santa Barbara County Child Welfare Services (CWS) the day following her birth after mother abandoned her at the hospital. Both mother and M.S. tested positive for methamphetamine.
On February 15, 2007, CWS filed a section 300 dependency petition alleging mother's abandonment of M.S. without provision for support, that M.S. had suffered or was substantially at risk of suffering serious physical harm due to mother's failure to protect or care for her, and that mother's failure to reunify with a sibling had resulted in termination of parental rights as to the sibling. (§ 300, subds. (b), (g), (j).) The detention report stated that mother had a substantial criminal history, outstanding warrants for her arrest, and that the father of the child was unknown. The juvenile court detained M.S. and ordered CWS to arrange visitation.
Mother appeared at a March 12, 2007, hearing while in police custody. She informed the court that R.S. was the father of M.S., and that he also was incarcerated. R.S. appeared for the first time at a March 19, 2007, hearing while in police custody. DNA testing was ordered to confirm his parentage.
In its jurisdiction and disposition report for mother, CWS recommended M.S. be declared a dependent of the court, and reunification services be denied pursuant to section 361.5, subdivisions (b)(1), (10), (11), and (13). The report stated that CWS had lost contact with mother, and that mother continued to be subject to an outstanding arrest warrant, had not complied with drug treatment services, and was suffering from untreated post traumatic stress disorder. The report stated that mother's longstanding untreated drug problem continues to place M.S. at risk.
The jurisdiction and disposition report also provided additional information regarding mother's loss of parental rights as to M.S.'s sibling. The sibling M.J.S. was a boy born in January 2006, who also tested positive for methamphetamine at birth. Mother's parental rights as to M.J.S. were terminated in February 2007 just days before the birth of M.S.
On May 11, 2007, the juvenile court conducted mother's jurisdiction and disposition hearing. Mother testified that she had been ordered by the "Drug Court" to enter a drug treatment program as an alternative to incarceration and had entered such a program in April 2007. An intern at mother's drug treatment program testified that she was in compliance with program requirements. Mother also testified that she had attended two one-hour visits with M.S., and she has four children in addition to M.S. and M.J.S., none of whom was living with her.
The juvenile court found, by clear and convincing evidence, that reunification services should be denied pursuant to section 361.5, subdivisions (b)(10), (11), and (13). The court stated that reunification was not in the best interest of the child, and that any effort by mother to ameliorate the conditions that led to the detention of M.S. was insufficient. The court set a section 366.26 hearing.
At a May 21, 2007, hearing, the juvenile court ruled that R.S. was the father of M.S. and set a jurisdiction and disposition hearing for him. In its jurisdiction and disposition report, CWS recommended denial of reunification services pursuant to section 361.5, subdivisions (b)(10), (11), and (13) based on father's chronic drug abuse problem, criminal history, and the termination of parental rights as to M.J.S., also his child, after unsuccessful reunification efforts. Father expressly declined the court's offer to conduct a further hearing regarding reunification services as to M.S. As a result, services were bypassed, and the court set a section 366.26 hearing. The addendum to the CWS report provided for both mother and father to have two supervised hour-long visits with M.S. each month.
In September 2007, mother and father filed separate petitions for a changed circumstances hearing pursuant to section 388. Mother alleged that she had remained clean and sober in her residential drug treatment program, and had successful visits with M.S. Father alleged that he also was successfully participating in a drug treatment program, and had completed a parenting class.
In written opposition, CWS claimed the short time both parents had been in drug treatment programs was insufficient to establish a significant or long-lasting change in circumstances, and that neither parent had a stable residence. Mother resided in the facility of her drug treatment program, and father lived with a sister.
On October 3, 2007, the juvenile court conducted a hearing on both 388 petitions. The program manager at mother's drug treatment program testified that mother was in her sixth month of a 12- or 18-month program as ordered by the drug court. Mother had been "pretty much a wreck" when she started the program but had made excellent progress and is now a "senior resident" at the residential home. The program manager testified that mother was not taking medication for her post traumatic stress disorder, and acknowledged the possibility of relapse.
Mother testified she had been visiting M.S. for over four months, and continued to reside at her drug treatment facility. She testified that she had obtained a part time job approximately one month before the hearing.
A counselor at father's drug treatment program testified that father had been in the program for five months pursuant to court order, consistently tested negative for drugs, and had completed a parenting class. The counselor acknowledged that father had failed to complete a similar drug program during the dependency of sibling M.J.S.
Father testified that he had learned how to hold and talk to babies in his parenting class, had bonded with M.S., and had a job and would get a second job if he were reunified with M.S. Father also testified that he has four children other than M.S. and M.J.S., but only one lived with him in his sister's home. He admitted he provided no financial assistance for the support of any of his children.
Two visitation supervisors testified on behalf of CWS. One testified that mother and father properly cared for M.S. during visits. She testified that the child recognizes the parents, but was uncertain whether a parent-child relationship existed. A second witness visitation supervisor testified similarly.
A social worker testified that the foster parents had adopted sibling M.J.S. and were committed to adopting M.S. She testified that M.S. was happy in her foster home and "well-bonded" with the foster parents in a "parent/child relationship." Another CWS employee testified that M.S. was thriving in her foster home and interacted positively with sibling M.J.S. She testified that M.S. considers the foster parents to be her mother and father, and that adoption by those foster parents would be in her best interest. She acknowledged, however, that a child attached to one family could "reattach" to another family.
The juvenile court denied both parents' section 388 petitions. The court found that, although both parents had established a relationship with M.S., their bond was "superficial" and insufficient to overcome the stronger bond with the foster parents and the stable and secure environment provided by the foster parents. The court stated that the parents' efforts, "while admirable, . . . have been too late in the process, relative to the welfare of this child." The court concluded that the parents were in transition but they both have had "too short a history of sobriety, with too long a history of lack of sobriety and lack of parenting, to be able, at this late stage, to roll the clock back, particularly, where the child is in a secure environment with adoptive parents [of M.J.S.] who also want to adopt the other child . . . ."
DISCUSSION
Mother and father contend the juvenile court abused its discretion in denying their section 388 petitions. They argue that their circumstances have changed and it is in M.S.'s best interest to provide reunification services. We disagree.
Under section 388, a juvenile court is authorized to modify a prior order if a petitioning parent shows a change of circumstances and that a modification of the prior order would be in the best interest of the child. (§ 388, subd. (d); In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Eric E. (2006) 137 Cal.App.4th 252, 260.) "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests. [Citation.] 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 child's need for stability and permanence is paramount, not the parent's interest in reunification. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
The court has broad discretion in resolving a petition to modify a prior order. Its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re Casey D., supra, 70 Cal.App.4th at p. 47.) There was no abuse of discretion in this case. The evidence supports the juvenile court's findings that both mother and father had weak parental bonds with M.S., only a very recent record of addressing their drug addiction, and no history of successfully parenting either M.J.S. or any of their other several children. The juvenile court reasonably concluded that the circumstances of both mother and father had not substantially changed and that the parents failed to establish that the proposed change was in the best interest of M.S.
Relevant factors in ruling on a section 388 petition include the seriousness of the problem leading to the dependency, the strength of the bonds of the child to both parent and caretakers, and the degree to which the problem can be easily removed as well as the current success of the parents in correcting the problem. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) The record reflects that the juvenile court carefully considered these factors before reaching its decision.
M.S. became a dependent child because mother abandoned the child at the hospital, had a significant criminal history, untreated post traumatic stress disorder, and a chronic drug dependency passed on to the child. She also lacked employment or a stable living environment, and failed to reunify with her previous child M.J.S. in a dependency proceeding which ended just days before the birth of M.S. Once he was identified, it was determined that father also had a serious drug abuse problem, a criminal history, and failed to reunify with M.J.S. In addition, there is no evidence that father assisted mother during her pregnancy, or had stable employment or a residence independent of relatives.
As they argue at length, both mother and father had been successfully participating in treatment programs for several months, but neither had a stable living environment in which to raise a child, or a meaningful employment history. Both parents had entered their treatment programs under compulsion by the court, and had only a possibility of long-term rehabilitation. Also, mother was living in a highly-controlled environment, and father also had no independent residence. Moreover, evidence shows that mother and father had established some bond with M.S., but the child had been placed in a stable and secure home of prospective adoptive parents who had a stronger bond and had also adopted sibling M.J.S.
The orders are affirmed.
We concur:YEGAN, Acting P.J., COFFEE, J.