Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County No. CK64897. Emily Stevens, Judge.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant S.D.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant A.L.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
CHAVEZ, J.
Appellant S.D. (mother) appeals from an order of the juvenile court denying her Welfare and Institutions Code section 388 petition. She also challenges the court’s order terminating her parental rights over her daughter, P.L.
All further statutory references are to the Welfare & Institutions Code.
Appellant A.L. (father) joins mother in her appeal of the juvenile court’s denial of mother’s section 388 petition. Father also appeals from the juvenile court’s order terminating his parental rights over P.L.
We affirm the orders.
CONTENTIONS
Mother contends that the trial court erred in denying her section 388 petition, in which she requested a period of additional reunification services. In addition, mother contends that if the order denying her section 388 petition is reversed, the order terminating her parental rights must also be reversed.
Father joins in mother’s arguments in their entirety. Father also argues that the trial court should not have terminated his parental rights in light of his completion of his case plan and his efforts to maintain a familial relationship with P.L.
FACTUAL AND PROCEDURAL BACKGROUND
1. Initial detention
P.L. was born in August 2006, at Long Beach Memorial Hospital. Both mother and P.L. tested positive for amphetamines at the time of P.L.’s birth. P.L. showed withdrawal symptoms, including tremors. Long Beach Memorial Hospital informed the Department of Children and Family Services (DCFS), which filed a petition pursuant to section 300 on P.L.’s behalf on September 5, 2006.
The petition alleged that mother was a current abuser of amphetamine. Mother was 20 years old at the time of P.L.’s birth, and had been using amphetamines since she was 15 years old. P.L.’s father had a criminal history of convictions for possession of a controlled substance and a violent felony. DCFS alleged that due to these circumstances, P.L.’s physical safety and well-being were endangered.
On August 25, 2006, as part of a voluntary maintenance plan, P.L. was placed in the home of a nonrelated extended family member, and mother agreed to enroll in an inpatient drug rehabilitation program. However, the nonrelative extended family member contacted DCFS on August 28, 2006, stating that she had concerns about mother’s behavior. Mother was insisting that the caretaker take the baby to the Los Angeles County Jail to visit father, who was in custody there. When the caretaker refused to do so, mother came to her house, stood in the front yard, and yelled in a confrontational manner. The caretaker believed that mother was under the influence of drugs. Mother refused to provide the caretaker with any Medi-Cal or medical insurance information, and refused to leave her front yard. Thus, the caretaker could not take P.L. to the doctor. She requested that P.L. be removed from her home.
Mother informed DCFS that she was enrolling in inpatient treatment at a program called Substance Abuse Foundation on August 29, 2006. P.L. was placed into licensed foster care.
On September 5, 2006, P.L. was detained from her parents. Mother and father were both present at the hearing, and each parent was appointed counsel. Father was found to be the presumed father of P.L. Both parents executed “Parental Notification of Indian Status” forms. An adjudication hearing was set for September 28, 2006.
2. The jurisdiction/disposition report and hearing
DCFS filed a jurisdiction/disposition report on September 28, 2006. DCFS reported that the Indian Child Welfare Act (ICWA) did not apply. DCFS also provided some background information about the parents. Mother grew up in Long Beach and was a former dependent of the juvenile court, along with all of her siblings. Her parents had been drug users. Once she was placed in foster care, she ran away starting at age 12, and continued to run away each time she was found. Mother reported that she grew up on the streets of Long Beach, she was a member of a gang at one time, and she had no idea what happened to her sisters and brother.
Father also grew up in Long Beach. He had an extensive criminal history. He stated that he had made bad choices and several mistakes, but he had finally gotten it “together” just prior to his recent arrest. He had been working and volunteering at juvenile hall to help keep kids off drugs. Although he had been arrested on drug possession charges, he reported the drugs were not his but were in the apartment where mother was staying, which he periodically visited. Father denied that he used drugs.
P.L. was exhibiting symptoms of drug withdrawal, including leg spasms and high-pitched screaming. Otherwise, she was doing well in her foster home. Mother had visited P.L. twice. During the visits, she had held P.L., changed her and spoke to her in a motherly voice. Mother was appropriate, appeared concerned about P.L., and cried when the second visit ended.
The adjudication and disposition hearing was conducted on September 28, 2006. Both parents were present (father in custody). Both parents signed waiver of rights forms and submitted the matter to the court based on an amended petition. The petition was sustained with amendments, and P.L. was declared a dependent of the court. Both parents were ordered reunification services. Mother was ordered to participate in a drug rehabilitation program with random drug testing, parent education, and individual counseling to address anger management, drug rehabilitation and dependence. Father was ordered to attend a drug rehabilitation program with random drug testing, parent education, and individual counseling to address anger management. Both parents were ordered to have monitored visitation, with DCFS discretion to liberalize mother’s visitation. The juvenile court stayed all of the orders until October 25, 2006, for receipt of notice regarding compliance with ICWA.
3. The reunification period
On October 25, 2006, DCFS submitted a report indicating that mother had left the Substance Abuse Foundation on October 10, 2006. Her current whereabouts were unknown. P.L.’s foster mother reported that mother had not visited P.L. for three weeks. P.L.’s caretakers also reported that P.L. was showing signs of muscular difficulties and developmental delay. The court lifted its stay of orders, finding that ICWA did not apply, and set a progress hearing for December 11, 2006.
On December 11, 2006, DCFS reported that mother was formally discharged from the Substance Abuse Foundation on October 9, 2006, after swearing at a counselor. Mother contacted DCFS and was offered referrals and bus tokens. However, mother stated that she did not need them because she was staying with friends and would find a program on her own. Mother called the social worker again on November 21 and requested assistance because she was having difficulty getting into a program. The social worker scheduled mother for an intake appointment with Behavioral Health Services. Mother attended the appointment and was placed on a waiting list. Mother visited P.L. on December 2, 2006, for one and a half hours, which was her first visit since October 8, 2006. Mother had telephoned the foster parents “randomly” to check on P.L.’s well-being.
Father remained incarcerated and had not made contact with DCFS. P.L. had been referred to an optometrist because of concerns regarding her inability to visually track items when stimuli were placed in front of her. P.L. had been assigned a counselor at the Harbor Regional Center, to be seen monthly.
On March 29, 2007, DCFS submitted a report recommending termination of the parents’ reunification services. P.L. was residing in a prospective adoptive home. P.L. was found to be eligible for California Early Start services as a high risk client due to prenatal drug exposure and persistent tonal issues. She was receiving in-home therapy visits, and was being assisted by her caretakers with daily developmental exercises.
Mother had been admitted to the Flossie Lewis Center Inpatient Program on December 14, 2006. However, she abandoned the program on January 8, 2007. In addition, mother had not visited P.L. since January 11, 2007, though she continued to have sporadic telephone contact with P.L.’s caregivers.
Father had been relocated to California Substance Abuse Treatment Facility and State Prison in Corcoran, California. He was on a wait list for substance abuse treatment. Father’s expected release date was April 3, 2009. DCFS submitted to the court a letter from father, which indicated that father wanted his sister to take custody of P.L.
The juvenile court ordered termination of both parents’ family reunification services. However, the court stayed its orders until May 2, 2007, and continued the hearing so that father could be present.
Father submitted a second letter to the social worker and the court indicating that he had tried to call the social worker’s office many times and could not get through. He expressed concern about DCFS’s recommendation that family reunification services be terminated, and stated that he did not want his daughter to be adopted. He was in the prison drug rehabilitation program and was complying with all court orders. He requested visits with his daughter while in prison.
On May 2, 2007, mother appeared in court. She was homeless but she asked the court to provide her with additional reunification services. Mother advised the court that she had been calling the social worker over the past six weeks. Mother’s attorney described mother as “pretty distraught” about her circumstances, and indicated she was helping her to find referrals for an inpatient program. P.L.’s attorney reported that the foster parents were “more than open to facilitating a relationship with the parents and the child.” They had received some phone calls from father and one from mother.
The court found that mother was not making any progress, was not participating, and was not in compliance with the case plan. However, the court found that father was in compliance with his case plan. The court stated: “this is not a situation where the father knew the child or had a relationship with the [child], but it is a situation where he is making every effort, notwithstanding his place of incarceration, to follow the case plan.” The court vacated its March 29, 2007 orders, ordered continued family reunification services for father, but terminated mother’s services. The court set a hearing pursuant to section 366.21, subdivision (f), for September 27, 2007.
4. Father’s section 388 petition
On June 25, 2007, father filed a section 388 petition, in which he requested that P.L. be placed with his sister (paternal aunt). A hearing on father’s petition was set for July 26, 2007. In a report DCFS submitted for the hearing, DCFS chronicled several contacts with paternal aunt wherein she had indicated that she did not wish to take custody of P.L. However, in her last two contacts with DCFS, she indicated she would be willing to “watch” P.L. until father was released from prison. On April 3, 2007, mother stated that she did not want paternal aunt to take custody of P.L. because father would control the aunt and never allow mother to see P.L. The report also found that P.L. was bonded to her caretakers, with whom she had been living since she was five days old. The court denied father’s petition.
5. Twelve-month review
A September 27, 2007 report filed by DCFS indicated that father continued to be incarcerated and mother was having “sporadic” monitored visits with P.L. She had recently attended P.L.’s first birthday party along with other maternal family members. P.L.’s caretakers had been very supportive of maintaining P.L.’s ties with her biological family. The September 27, 2007 hearing (§ 366.26, subd. (f)) was continued to October 18, 2007, so that father could be transported to court.
On October 18, 2007, DCFS filed a report indicating that P.L.’s foster parents’ home study had been approved on October 11, 2007. DCFS further informed the court that after an unmonitored visit with her paternal aunt and uncle on October 9, 2007, P.L. had become anxious and did not sleep through the night. When paternal aunt and uncle had taken the child, she screamed and cried and placed her hands on the window glass and scratched as if she wanted to get out. Since the visit, P.L. had to have one of her caretakers sit in the back seat with her when she rode in an automobile, or she would become extremely agitated. DCFS decided that future visits with the relatives would be monitored in order to prevent P.L. from regressing further.
On October 18, 2007, father appeared in court (in custody). He explained to the court that he was following all court orders regarding reunification services. Father was writing his attorney weekly to stay informed regarding the court proceedings involving his daughter. The contested section 366.21, subdivision (f) hearing was again continued to November 29, 2007.
On November 29, 2007, the court terminated father’s family reunification services. The court made a finding that father was in compliance with the court’s orders but was unable to take care of P.L. due to his incarceration. The court noted that father had never met P.L., as he had been incarcerated before her birth. A selection and implementation hearing was set for March 4, 2008. The recommended permanent plan for P.L. was adoption.
6. Mother’s section 388 petition
On January 30, 2008, mother filed a section 388 petition requesting that her reunification services be reinstated. In the petition, mother stated that she had given birth to a baby boy, I.M., on October 8, 2007, and had subsequently entered the La Casita Residential Treatment Program. Mother alleged that she could provide loving and appropriate care for her children, and that P.L. would benefit from growing up with her brother. Attached to the petition were progress reports from La Casita confirming that mother had attended group therapy five times a day since enrollment, that she had been working on her recovery, and was participating in all aspects of the program. Mother’s program included parenting, individual counseling, group counseling, 12-step meetings, anger management counseling, grief and loss counseling, life skills, and women’s issues classes. Mother’s four drug tests had been negative. Mother’s individual counselor reported that mother was “open and willing to work on issues related to her children, sobriety, and past issues. She has actively participated in her sessions working on issues related to her family of origin, parenting, and recovery.” The court granted a hearing on mother’s petition, which was set for March 4, 2008. The court directed DCFS to prepare a report addressing the petition.
DCFS filed a report on March 4, 2008, recommending that the court deny mother’s petition. DCFS acknowledged that mother’s counselor reported that mother had “grown” and was taking suggestions. Mother’s program was six months long, but she had requested to stay in the program for a year, which was approved. Mother was “doing well” and had tested negative for drugs 12 times. DCFS informed the court that mother was having an average of two visits per month, lasting about two to three hours each. However, the foster parents always transported P.L. to mother, and mother made no effort to see P.L. unless P.L. was brought to her. DCFS reported that there was no parental bond between mother and P.L.
Mother had been given day passes from La Casita, which she had used to visit friends in Long Beach, and to visit her “boy friend [A.H.], who has an extensive criminal history.” Mother had called in to her program late when she was on a day pass, and she had returned late from a day pass on one occasion.
Attached to the DCFS report was a letter from P.L.’s caregivers, who indicated that every time P.L. visited with mother she was “out of sorts for at least [two] days.” They wanted to adopt P.L. They stated that P.L. will “always have access to her birth mother” and “she will have contact with her birth family” including her great-grandmother and great-great grandmother.
Referee Joan Carney conducted the hearing on mother’s section 388 petition on March 4, 2008, along with an adjudication and disposition hearing on mother’s new baby, I.M. Mother was present. DCFS agreed that I.M. could be released to mother on a home of parent order. He was placed in mother’s care. The court denied mother’s section 388 petition, stating “there is no bonding here. The child is a special needs child and needs a specialized placement as opposed to being in a treatment program. And it is not in the best interests of the child to [be removed] from the current placement.” The section 366.26 hearing was continued to April 2, 2008, for father to be transported to court.
7. The section 366.26 hearing
DCFS had submitted its section 366.26 report on March 4, 2008, recommending termination of parental rights and adoption for P.L. by her caretakers, who had a strong desire to adopt her. P.L. was thriving in her placement and she was “very much attached to her prospective adoptive parents as they are to her.” P.L. suffered from “a low level of gross motor delay” and “persistent tonal problems.” She had one foot that turned out when she walked, which made it difficult for her to walk without falling. She also suffered from a visual impairment.
Both parents were present in court on April 2, 2008, for the hearing. The court received into evidence the DCFS report, and also indicated that it had read a letter from mother in which mother stated that she “wants a second chance and she indicates that she’s not done everything she’s supposed to do up to this point but she now understands.” Mother also presented the court with a letter from her treatment program.
Mother requested that a plan short of adoption be selected. Her attorney argued that mother had “made a 180 degree turn around in her life.” Mother’s attorney argued that P.L. does have a bond with mother. P.L.’s attorney agreed that mother had completely turned her life around, but argued that there was no “mother/child bond” and P.L. considered her foster parents to be her “mom and dad.”
In accordance with the recommendation of DCFS, the juvenile court terminated both mother’s and father’s parental rights. The court noted that the only times father had visited P.L. were the few times P.L. was present in court. Father had never had outside visits with P.L. The court expressly stated that none of the exceptions to parental rights applied, the child would not benefit from any continuing relationship with mother, and father did not have a relationship with the child. The court found it would be detrimental for P.L. to be returned to the parents and, by clear and convincing evidence, it was likely the child would be adopted.
On April 7, 2008, father filed his notice of appeal. On April 9, 2008, mother filed her notice of appeal.
DISCUSSION
I. Mother’s section 388 petition
A. Applicable law
Section 388 provides that a parent 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 of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate jurisdiction of the court.” At a hearing on a section 388 motion, “the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interest of the child. [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Thus, even if a parent meets her burden of showing changed circumstances, she must also show that the requested modification of the juvenile court’s order is in the best interests of the child.
A juvenile court’s decision on a section 388 petition is reviewed for abuse of discretion. Under that standard, “‘[t]he appropriate test . . . is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
B. The juvenile court did not abuse its discretion by denying mother’s section 388 petition
1. Changed circumstances
Mother acknowledges that she was unable to overcome her drug dependency in the first eight months of P.L.’s dependency case. However, she argues that she began to address her drug problem “in earnest” in October 2007, when she entered the La Casita residential program. Mother states that the evidence attached to her petition showed that she had “been enrolled and actively participating in all facets of La Casita residential drug program for almost [six] months.” She had given birth to I.M., who had been placed with her in the program, and mother’s counselor reported that mother’s interaction with I.M. was loving and caring. Because mother was caring for I.M. successfully, and had completed six months of comprehensive inpatient substance abuse rehabilitation, mother claims that she met her burden of establishing that she had undergone a legitimate change of circumstances.
DCFS argues that at best, mother’s circumstances were changing, not changed. She was in a rehabilitation program, but mother had previously enrolled in two different rehabilitation programs and failed to complete either program. DCFS argues that given mother’s history, successful completion of a program would be more indicative of changed circumstances.
We agree that mother failed to meet her burden of showing changed circumstances. Under section 388, “the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.” (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) Proof that a parent is beginning to rehabilitate is insufficient to show changed circumstances, because “‘[c]hildhood does not wait for the parent to become adequate.’” (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Thus, mother’s showing of changing circumstances was insufficient. (Ibid.)
The court made no explicit finding on the issue of changed circumstances. However, we find no abuse of discretion as to the court’s implicit finding that mother failed to meet her burden of showing changed circumstances.
2. Best interests of the child
Even if mother had met her burden of proving changed circumstances, mother must show that a modification of the court’s order would be in P.L.’s best interests. As set forth below, we find that mother has also failed to make this showing.
In support of her position that P.L.’s best interests would be served by her requested modification, mother emphasizes that she is not asking that P.L. be placed with her immediately. Instead, mother is simply requesting additional reunification services. Mother cites In re Kimberly F. (1997) 56 Cal.App.4th 519, 529-530 (Kimberly F.), for the proposition that a court should not just engage in a “simplistic comparison between the natural parent’s and the caretaker’s households” in deciding whether the best interests of a child will be promoted. Mother argues that, as pointed out in the Kimberly F. matter, the importance of sibling and familial relationships should be emphasized.
The Kimberly F. court set forth three factors to be considered in analyzing the best interests of the child under section 300. Those factors are: (1) the seriousness of the problem which led to the dependency and the reason for any continuation of the problem; (2) the strength of the child’s bond to the parent and to the present caretakers, and the length of time that the child has been in the dependency system; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Kimberly F., supra, 56 Cal.App.4th at pp. 530-532.)
Application of these factors supports the juvenile court’s determination that P.L.’s best interests would not be served by mother’s proposed modification. The problem that led to the dependency was very serious. Mother had been a user of illicit drugs for five years, and her drug use adversely affected P.L. Mother’s initial attempts at overcoming this serious problem had failed, and mother had not successfully shown that the problem was resolved. The evidence also indicated that P.L. had a strong bond with her caretakers, with whom she had been placed when she was five days old. Further, the court expressly found that there was no bond between mother and P.L. Mother’s visitation with P.L. was irregular, and P.L. had never resided with mother.
While mother recognizes that she did not visit P.L. as regularly as she could have, she argues that she did undergo a significant change of circumstances and her request that reunification services be reinstated would have enabled her to further develop her relationship with her child. Mother cites In re Monica C. (1994) 31 Cal.App.4th 296, 308-310 for the proposition that the reunification process is designed to help parents build and maintain a relationship with their child. However, mother’s interest in building a relationship with her child is not a factor that is appropriately considered under section 388.
The court had ample evidence supporting its determination that P.L.’s best interests would not be served by granting mother’s section 388 petition. We find that no abuse of discretion occurred.
II. Termination of parental rights
A. Applicable law
Section 366.26 governs hearings terminating parental rights. Under section 366.26, subdivision (c)(1), if the juvenile court finds by clear and convincing evidence that a child is adoptable, the court “shall” terminate parental rights unless it finds that termination would be detrimental because of one of six enumerated exceptions. (§366.26, subds. (c)(1)(B)(i)-(vi).)
The juvenile court found by clear and convincing evidence that P.L. was adoptable. Thus, section 366.26 mandated termination of parental rights unless one of the stated exceptions was shown. The party claiming an exception to termination of parental rights under section 366.26 has the burden of proof to establish, by a preponderance of the evidence, that the exception applies. A juvenile court’s decision as to whether to apply the exception is reviewed for abuse of discretion. (In re Aaliyah R. (2006)136 Cal.App.4th 437, 449; Jasmine D., supra, at pp. 1350-1351.)
In reviewing the statutory exceptions to termination of parental rights, courts have used both the abuse of discretion test and the substantial evidence test. However, “[t]he practical differences between the two standards of review are not significant. . . . The reviewing court should interfere only “‘“‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’. . .”’ [Citation.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
B. The court did not err in terminating mother’s parental rights
Mother concedes that she is not attempting to show that any of the exceptions to termination of parental rights applies. She argues that if the order denying her section 388 petition is reversed, it is “self-evident” that the subsequent order terminating her parental rights should also be vacated. Because we affirm the court’s order denying her section 388 petition, we also affirm the court’s order terminating her parental rights.
C. The court did not err in terminating father’s parental rights
Father also fails to argue that any specific exception to termination of parental rights should be found to apply. Instead, he argues that he lost his child because he was in prison. He claims that he followed all court orders while in prison and stated his intentions to do whatever was required in order to reunify with his daughter.
Under the applicable statutory scheme, father’s arguments are insufficient. In order to reverse the juvenile court’s order terminating his parental rights, he must show one of the enumerated exceptions set forth in section 366.26, subdivisions (c)(1)(B)(i)–(vi). As stated in In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1165 “we discern no legislative intent to create a broader exception not included in those expressly circumscribed.” Thus, father’s arguments regarding his efforts to follow the court’s orders cannot trump the juvenile court’s obligation to terminate parental rights once the court has found by clear and convincing evidence that the child is adoptable. (§ 366.26, subd. (c)(1).)
After the termination of reunification services, a parent’s interest in the care, custody and companionship of a child are no longer paramount. Rather, at this point, the focus shifts to the needs of the child for permanence and stability. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) P.L. has lived with her current foster parents since she was five days old. “[C]hildren have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]” (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) P.L.’s right to the stability and permanence of adoption must prevail.
DISPOSITION
The orders are affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.