Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge., Pursuant to Cal. Const., art. VI, § 21, Super.Ct.No. RIJ 109202
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Ellen L. Bacon, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut J.
1. Introduction
R.B. was born in January 2005. Her mother, Sally, was 19 years old at the time, and tested positive for methamphetamine which she admitted she had used when she was six months pregnant. In addition, mother refused to take three drug tests requested after the birth of R.B. Mother was not married but at the time of R.B.’s birth she lived with the father, S.B., who was 21 years old.
On September 29, 2005, the trial court terminated all reunification services, ordered a permanent plan for adoption, and set a post-permanency hearing under Welfare and Institutions Code section 366.26 for March 29, 2006. On March 22, 2006, mother filed a section 388 motion requesting that termination order be vacated and her reunification services be reinstated. The trial court heard the section 388 motion on October 30, 2006.
All further statutory references are to the Welfare and Institutions Code.
After hearing the witnesses on October 30, 2006, the court concluded that R.B. would not be returned to the parents’ custody within the next six months, that termination of the parental rights would not be detrimental to R.B., that adoption would be in the best interests of the child and therefore the parental rights of the parents were permanently severed.
Mother rejects the trial court’s conclusion, requests the case be remanded for a new hearing on the section 388 petition and a further section 366.26 hearing.
2. The Section 388 Petition Was Properly Denied
“A dependency court order may be changed or modified under [section 388] if a petitioning parent establishes one of the statutory grounds, changed circumstance or new evidence, for the modification, and also proves the proposed change would promote the best interests of the child.” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)
In In re Michael D., the court concluded that “[i]n construing the language of section 388, our Supreme Court has expressly stated ‘[a]t a hearing on a motion for change of placement, 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. . . .’ (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)” (In re Michael D. (1996) 51 Cal.App.4th 1074, 1083-1084.)
“‘The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.’ (In re Jasmon O. [1994] 8 Cal.4th [398,] 415.)” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) As the Daniel C. court observed, referring to In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, “‘“‘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.’”’”
“Under section 388, the petitioner must show by a preponderance of the evidence either changed circumstances or new evidence and that the proposed modification is in the best interests of the child.” (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
In this case there was substantial evidence to support the decision of the trial court rejecting mother’s request for a modification. Evidence of mother’s use of drugs during her pregnancy, her failure to begin programs to overcome her use of drugs, her sporadic and insufficient visits to see R.B., and her refusal to attend programs for parenting and drug counseling until long after the trial court’s termination of reunification services, all confirm the trial court’s decision.
Mother’s initial toxicology screening on the date of R.B.’s birth evidenced mother’s use of methamphetamine within a few days prior to the baby’s birth. Later mother herself admitted taking methamphetamine into her second trimester. Both mother and the child’s father failed to take drug tests requested by the Riverside County Department of Public Social Services (DPSS) in March 2005 and mother refused to take a hair follicle test ordered by the trial court on May 31, 2006.
Mother had no prenatal care and had only minimal provisions necessary for the care of a baby. She saw only one doctor, approximately one month before the birth of the baby. Nor did the parents make appropriate provisions for the birth of the child, as evidenced by lack of prenatal care and the lack of items available for the needs of a new child.
After the child was born, Sally attended the Medically Fragile Infant (MFI) program for a few sessions in January 2005 and then dropped out and was discharged. Later, in November 2005, she attended the MFI Recovery Center and participated in various group and educational classes, even though reunification services had been terminated four months earlier.
The parents’ efforts to visit R.B. were at best uneven and when they did visit, they made very little effort to spend time with the child. In April 2005, the addendum report from DPSS indicated that the parents had 11 opportunities to visit but only came four times and of the four, they arrived late and left early. In September 2005, DPSS observed that the mother and father’s visits were consistently “sporadic and limited, often destructive.” “As of August 17, 2005, the parents have missed and/or cancelled five weeks of visitation.” DPSS observed that “[i]nitially the mother, [Sally], did not demonstrate that she knew what to do with a baby. She has not appeared to be very interested or invested in bonding with [R.B.]. The father demonstrates slightly better age-appropriate behavior, but will often leave the visit within ten to fifteen minutes to go ‘smoke.’ The parents always leave before 45 minutes of the scheduled 1-hour visit.”
In May 2006, 18 months after R.B. was born, visitation remained a problem. The parents frequently either did not call to set up their visit or they called and then did not appear. Visits were reduced from weekly to once a month. When the parents did appear they frequently brought other family members. The social worker reported: “The mother, [Sally], continues to demonstrate that she does not know how to interact with [R.B.] and she does not appear to be interested or invested in bonding with her daughter. This is demonstrated when [mother] sits and just watches [R.B.] without interacting. Or, when [R.B.] becomes distressed [mother] would not attempt to soothe her, but rather wait for others to alleviate her stress. [Mother] would often talk on the telephone or to other family members during visits, or otherwise occupy her time taking pictures.”
The evidence relied upon by the trial court confirmed the likelihood that R.B. would be adopted despite efforts to aid the parents to overcome their problems. The actions of the parents required the removal of R.B. because there was no probability she would be returned to the parents within six months of her birth. The evidence confirmed that adoption was in the best interests of R.B. The trial court therefore properly severed the rights of [mother] and the presumed father, [S.B.].
In In re Kimberly F. (1997) 56 Cal.App.4th 519, 529, the court observed that “It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.” There is no evidence in this case that modification of the section 388 decision would benefit R.B. Neither her mother nor her father invested the time or the effort to provide a true home for R.B.
In In re Derek W. (1999) 73 Cal.App.4th 823, 827, the court stated that “[t]he court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.” The parent/child relationship in this case was only measured by the few visits from R.B.’s parents when they either arrived late, left early, or spent their time smoking and talking on the phone. There is no evidence that R.B.’s parents established an emotional attachment with R.B. or that R.B. found their visits pleasant.
3. Disposition
The judgment of the trial court is affirmed.
We concur: s/Richli, Acting P. J., King J.