Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J65996 Ventura County Tari L. Cody, Judge
Lee Gulliver for Defendant and Appellant.
Noel A. Klebaum, County Counsel, Joseph J. Randazzo, Assistant County Counsel for Plaintiff and Respondent.
GILBERT, P.J.
Leah B. appeals an order of the juvenile court declaring that her son is adoptable and terminating her parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) She also appeals an order denying her modification petition filed pursuant to section 388. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
On October 21, 2005, the Ventura County Human Services Agency (HSA) filed a dependency petition on behalf of infant Nathan R. He was born three days earlier and medical testing revealed the presence of methamphetamine in his body. Medical testing of Leah B. prior to Nathan's birth also revealed the presence of methamphetamine and marijuana on three occasions. In the dependency petition, HSA alleged that Leah B. failed to protect her son by reason of her use of illegal drugs. (§ 300, subd. (b).)
In the detention report, HSA reported that Leah B. resided in a "Drug House" that police officers raided because the residents trafficked in illegal drugs. Leah B. denied that she had consumed methamphetamine and stated that her roommates had poisoned her.
On October 24, 2005, the juvenile court ordered Nathan detained. HSA placed him in a foster home initially and thereafter with Mrs. W., a cousin to Leah B. Following a contested hearing, the juvenile court sustained the allegations of an amended dependency petition. It continued Nathan as a dependent child, and ordered HSA to provide family reunification services to Leah B.
The family reunification services plan required Leah B. to obtain psychological evaluation and comply with recommended treatment, complete a parent education program, obtain drug and alcohol evaluation and comply with recommended treatment, submit to random drug testing, and attend Narcotics Anonymous or Alcoholic Anonymous meetings three times weekly. During the next nine months, Leah B. complied in part with the reunification services plan. She obtained psychiatric treatment and medication, completed a parent education program, submitted to random drug testing, and attended frequent Narcotics Anonymous and Alcoholic Anonymous meetings. Leah B. did not complete an outpatient drug treatment program during the first eight months of reunification services, however. She was also hospitalized for an overdose of sleeping pills and alcohol in April 2006.
On August 1, 2006, the juvenile court held a contested six-month review hearing. Leah B. testified that the medication and alcohol overdose was "a mistake in judgment." She also testified that during her pregnancy, someone "tampered" with her medication by infusing it with methamphetamine. Leah B. denied that she had a drug abuse problem.
The juvenile court found that Leah B. had not sufficiently progressed with family reunification services. It terminated reunification services and set the matter for a section 366.26 permanent plan hearing. In ruling, the trial court stated that Leah B. had not completed the "key service[]" of drug treatment.
Leah B. sought review of the juvenile court's order terminating family reunification services and setting a permanent plan hearing. In an unpublished opinion, we denied the petition for extraordinary writ. (Leah B. v. Superior Court (Nov. 9, 2006, B193016).)
Prior to the permanent plan hearing, Leah B. filed a modification petition pursuant to section 388. She requested placement of Nathan with her and family maintenance services or family reunification services. She stated that she had completed six months' outpatient drug treatment, was attending aftercare treatment and Narcotics Anonymous meetings, was employed and had housing, was participating in random drug testing with negative test results, and was visiting Nathan frequently and consistently.
HSA filed a section 366.26 report prior to the permanent plan hearing, recommending termination of Leah B.'s parental rights and the adoption of Nathan by Mr. and Mrs. W. By then, Nathan had lived with the W. family for thirteen months and the family was "eager to have him as part of their family." The HSA social worker stated that Nathan became distressed when separated from the W. family, and appeared indifferent to Leah B.'s two children (his half-siblings).
At the March 15, 2006, permanent plan hearing, the juvenile court received evidence of HSA reports, the modification petition, and testimony from Leah B. She testified that she consistently visited with Nathan and that he loved her as his mother and loved his half-siblings. She stated that she has not "had a chance to be his mother." Leah B. also admitted that she had used drugs during her pregnancy.
The juvenile court declined to hold an evidentiary hearing regarding the section 388 modification petition. It ruled that Leah B. had not established a prima facie showing of changed circumstances, or that additional reunification or maintenance services would be in Nathan's best interests. It also concluded by clear and convincing evidence that Nathan is likely to be adopted. It then terminated Leah B.'s parental rights.
Leah B. appeals and contends that 1) the juvenile court abused its discretion by summarily denying the modification petition, and 2) the juvenile court erred by terminating her parental rights.
DISCUSSION
I.
Leah B. argues that the juvenile court abused its discretion by not holding an evidentiary hearing concerning the modification petition because she stated a prima facie case of changed circumstances. (§ 388, subd. (c) ["If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."]; In re Jasmon O. (1994) 8 Cal.4th 398, 415 [court must hold section 388 hearing if petition presents any evidence that hearing would promote best interests of child].) She relies upon In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414, concluding that due process of law requires that if a modification petition presents "any evidence" that a hearing would promote the best interests of the child, the juvenile court must hold a hearing. Leah B. asserts that she presented prima facie evidence of substantial and permanent changed circumstances regarding her parent skills and drug-free life.
The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances or new evidence, and that the modification would promote the best interests of the child. (§ 388; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446.) In determining the best interests of the child, the juvenile court shall consider the reason for the dependency, the reason the problem was not overcome, the strength of the parent-child and child-caretaker bonds, the length of time the child has been a dependent, the nature of the change of circumstance, the ease by which the change could be achieved, and the reason it was not made sooner. (Id., at pp. 446-447.) We test the juvenile court's decision for an abuse of discretion. (Id., at p. 447.)
The juvenile court did not abuse its discretion because Leah B. did not make a prima facie showing that modification of prior court orders may be in Nathan's best interests. Leah B. provided evidence that she completed an outpatient drug treatment program on February 8, 2007, one month prior to the permanent plan hearing. Only at the permanent plan hearing did she concede that she had a drug problem during her pregnancy. "[S]imple completion of . . . classes taken by [a parent] does not, in and of itself, show prima facie that either the requested modification or a hearing would be in the minor's best interests." (In re Angel B. (2002) 97 Cal.App.4th 454, 463 [discussing examples of prima facie showing of changed circumstances].)
"[C]hildhood does not wait for the parent to become adequate." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "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." (Ibid.)
Moreover, Nathan has never lived with Leah B. He was removed from her care and custody at birth because he was exposed to methamphetamine in utero. For nearly all of his life, he has lived with the W. family. Leah B. has not shown that Nathan's best interests would be served by modifying the juvenile court's order. "[I]t is difficult to imagine how she could have done so, given the fact that [she] never actually parented [Nathan] before [his] removal, and [he] was immediately placed with an adoptive family." (In re Angel B., supra, 97 Cal.App.4th 454, 465.) Although Leah B.'s visits with Nathan were happy and positive experiences, they amount to a small fraction of the time that he has lived with the W. family. The juvenile court reasonably decided that his current placement with relatives who wish to adopt him is in his best interests.
II.
Leah B. contends that sufficient evidence does not support the juvenile court's implied finding that the beneficial relationship exception to termination of parental rights does not apply. (§ 366.26, subd. (c)(1)(A); In re Dakota H. (2005) 132 Cal.App.4th 212, 228 [substantial evidence standard of review applies to § 366.26, subd. (c)(1)(A) exception].) She points out that she visited Nathan consistently and frequently throughout the dependency. Leah B. relies upon her modification petition and hearing testimony that Nathan viewed her as his mother and was excited to visit with her.
Section 366.26, subdivision (c)(1), requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless "the court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated statutory exception. The beneficial parental relationship exception of section 366.26, subdivision (c)(1)(A), requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." (In re Angel B., supra, 97 Cal.App.4th 454, 466.) The parent bears the burden of proving the exception. (Ibid.) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H., supra, 132 Cal.App.4th 212, 229.) Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The exception requires proof of "a parental relationship," not merely a relationship that is "beneficial to some degree but does not meet the child's need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.) The existence of a beneficial relationship is determined by the age of the child, the portion of the child's life spent in parental custody, the quality of interaction between parent and child, and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689 [beneficial relationship exists where children in mother's care the majority of their lives].) A biological parent who has not reunited with a child may not derail an adoption by showing that the child derives some benefit from continuing the relationship. (In re Angel B., supra, 97 Cal.App.4th 454, 466.)
Leah B. did not meet her burden of establishing the "extraordinary case" of the beneficial relationship exception. (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.) Although she and Nathan had a loving relationship and he enjoyed visits with her and his half-siblings, Leah B. did not establish that she occupied a parental role in Nathan's life. Since birth, Nathan resided with foster parents or the W. family, who satisfied Nathan's needs for protection, guidance, food, and shelter.
The orders are affirmed.
We concur: YEGAN, J., COFFEE, J.