Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Tari L. Cody, Judge Superior Court County of Ventura, Ct. No. J066367
Anne E. Fragasso, under appointment by the Court of Appeal, for Petitioner.
Noel A. Klebaum, County Counsel, Alison L. Harris, Assistant County Counsel, for Respondent.
COFFEE, J.
C.L. (mother) appeals from orders of the juvenile court order denying a modification petition, terminating parental rights to her daughter, R.L., and establishing adoption as a permanent plan. (Welf. & Inst. Code, §§ 388, 366.26.) The minor's alleged father, O.A., is not a party to this appeal. Mother contends that the juvenile court erred in terminating reunification services and in finding that the parental exception to adoption did not apply. She also claims that the Ventura County Human Services Agency (HSA) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTS
R.L. is the minor who is the subject of this appeal. Her parents are C.L. (mother) and O.A., her alleged father. His whereabouts are unknown. At the time of the removal, mother lived with her boyfriend, D.W. Mother and D.W. have an infant son, B.R., who is the minor's half-sibling.
On October 3, 2006, HSA filed a juvenile dependency petition on behalf of both children. The petition alleged mother's failure to protect due to her substance abuse and D.W.'s abuse of a half-sibling. (§ 300, subd. (b) & (j).)
The petition indicated that, on September 29, 2006, B.R. was hospitalized with broken ribs, bleeding and hemorrhaging of the brain and one eye that was not responding to visual stimulus. The brain injury was caused by being shaken or knocked severely, and the other injuries appeared to have occurred over time. It was alleged that there was a substantial risk that the minor would be similarly abused. At the time of the detention, B.R. was three months of age and the minor was one and a half years old. B.R. was hospitalized and the minor was placed in confidential foster care.
Mother was alleged to have an extensive history of substance abuse, which included the frequent use of marijuana and methamphetamines. She has an arrest history for being under the influence of controlled substances and possessing drug paraphernalia. She also suffers from Attention Deficit Hyperactivity Disorder (ADHD). In the detention report, D.W. and mother were reported as denying they harmed B.R. They expressed confusion as to how his injuries could have occurred.
The juvenile court ordered the minor detained and set a jurisdiction and disposition hearing for October 26, 2006. However, it was continued multiple times due to issues related to D.W.'s incarceration and the publication of notice to the minor's alleged father. The hearing was ultimately conducted on March 15, 2007.
The jurisdiction/disposition report indicated that the minor exhibits difficulty with fine motor skills and delays in language development. She is able only to say mom and dad. She squeals, points and throws tantrums for communication. The foster mother reported that the minor pulls her hair, is constantly nervous, spanks her doll, slaps her foster mother and is afraid of the water when taking baths. She wakes up screaming in the night. The foster mother requested that minor be placed in a different home.
The HSA reported that mother seemed unaware of the severity of B.R.'s injuries. She noticed his head getting "larger" for a week, yet failed to take him to a doctor. He came to the attention of medical professionals only when mother took him to an emergency room for excessive vomiting. His condition was so severe he had to be transported to Children's Hospital by air. B.R.'s injuries were life-threatening, yet the parents did not appear overly-concerned. Mother was even observed smiling and talkative at his bedside.
Following the filing of the initial petition, D.W. admitted to causing the injuries to B.R. Mother cooperated with police and helped secure his confession. In light of the fact that the injuries were not caused by mother, the HSA recommended that she be offered family reunification services not to exceed six months. A revised case plan required mother to obtain a suitable residence, participate in individual counseling services, attend parenting classes, attend meetings of alcoholics anonymous (AA) and narcotics anonymous (NA) and to submit to random drug testing. The HSA suggested that mother be given weekly supervised visitation with the minor. The juvenile court sustained an amended petition and ordered reunification services.
Contested Six-Month Review
A contested six-month review hearing was held on May 15, 2007. The HSA submitted a status review report recommending that reunification services be terminated as to mother, and the matter be set for a 366.26 hearing to establish a permanent plan of adoption.
The report indicated that mother has failed to provide proof of participation in AA/NA meetings and has missed seven of her fifteen scheduled tests, which are therefore considered "dirty." Mother did not have her initial assessment with the Simi Valley Alcohol and Drug until March 23, 2007, because there was a three-month waiting list. After the minor was taken into custody, mother lived with a new boyfriend, then moved into the home of an elderly woman. Because she is not paying rent, it is uncertain how long that will continue. Mother desires to have her children back in her custody, but has made minimal progress in her case plan.
Mother visits the minor for two hours each week. The community worker reported that mother interacts positively with the minor, but struggles with disciplining and following through. Mother does not appear to be applying the skills that she learned in parenting during her visitation.
The minor, now age two, has been placed with non-related extended family member (NREFM) caregivers and is receiving early intervention and speech therapy. The NREFM caregivers reported that the minor arrived at their home hitting, slapping, scratching, biting, pulling hair, screaming and throwing 45-minute tantrums. She was afraid of being in her crib and coiled her feet when put down to walk. The minor gorged her food and was unable to use utensils. She had no language or fine motor skills.
On the days of visitation with mother, the minor would scream and cry when put in her car seat. She did not know how to interact with other children and would often hit, scream, bite them and pull their hair. She would slap her doll and say, "bad, bad, bad."
After six months in the home of the NREFM caregivers, the minor's language skills increased and she began using 1-3 word phrases. She learned to identify objects and people. The minor began hugging, kissing and smiling. Her tantrums have been reduced to 2-3 minutes. She is able to sleep in a bed, sit at a table and use utensils.
The juvenile court found that mother has not completed substance abuse treatment and missed multiple random drug tests during the review period. She has been unable to demonstrate parenting skills she said she gained in parenting class, and has not provided HSA with proof of AA/NA attendance. The minor has displayed developmental delays and mother does not have a stable living environment for her. The court terminated reunification services to mother and set the matter for a section 366.26 hearing.
In June 2007, the NREFM caregivers informed the social worker that they could not make a long-term commitment to the minor. However, they wished to keep her until parental rights were terminated and a foster adoptive family was found, to avoid her being moved to other homes. HSA identified a foster/adopt home, and the transition to the new home began in July. On September 10, the minor was placed with the prospective adoptive parents.
Mother's Petition for Modification of Court Order
On November 8, 2007, mother filed a request that the juvenile court change its order terminating family reunification services. Mother asked that the minor be placed with her, and that family maintenance services be offered. In the alternative, she requested family reunification services and unsupervised visitation. Mother attached a declaration listing her participation in drug and alcohol treatment as well as individual counseling and parenting classes. She has had a full-time job at Taco Bell since May. She stated that, through counseling, she has gained insight into her earlier actions. Mother also indicated that, since D.W. is no longer a part of her life and with her new-found parenting skills, she is capable of raising the minor. Mother's request was set for a section 388 hearing and counsel stipulated that the matter could be heard concurrently with the other contested issues.
Combined Jurisdiction/Disposition, Sections 388 and 366.26 Hearing
In its section 366.26 report, the HSA requested termination of parental rights so the minor could be adopted by her current caregivers. The report indicated that the minor has been in her new placement for six weeks. During the transition phase to her foster/adopt home, she had reverted to her excessive crying, throwing tantrums and hitting. Since her placement, she has returned to being calm and her eating and sleeping patterns are normal. Her tantrums and hitting have subsided. The minor has been introduced to a preschool program and has demonstrated that she thrives in a very structured environment.
Mother has two-hour visits each week that are supervised by a community worker from the HSA. The report of the community worker indicates that mother has been consistent in her visitation and interacts positively with the minor. However, she struggles with disciplining and redirecting her. Mother spends 75 percent of her time visiting from the floor or couch and not getting involved with the visit. If the minor falls or needs redirection, mother will not interact or get off the couch or floor. The community worker must prompt mother to stand up and interact. The minor easily separates from the visits. Mother's attention towards minor is "apathetic [and] not very engaging or nurturing."
Although mother is regular in her visitation and her desire to regain custody, the minor is connecting strongly with her daily caregivers. The community worker noted that, during the last visitation with mother, the minor was easily engaged to be transported to the visit by the foster/adopt mother and was calmed by the foster/adopt mother's assurances of the purpose and duration of the visit and the minor's return home. The minor was talkative and sang during the transport and visit.
The social worker assessed the prospective adoptive parents as having a stable and loving home. They have become attached to the minor and are strongly committed to maintaining and meeting her special needs now and in the future. The minor appears to be settled and attached to her prospective adoptive family.
The hearing began on November 21, 2007, and concluded on December 5, 2007. The court heard the testimony of mother, mother's former foster mother, the HSA community worker, social worker and mother's case manager at Simi Valley Behavioral Health. Mother testified that she had completed the six-month alcohol and drug treatment program at Simi Valley Center and has been sober for one year. In the Simi Valley program she was also involved in individual and group counseling. Mother testified that counseling has helped her recognize and avoid abusive relationships. She attends three AA meetings per week and has a sponsor. She is seeing a psychiatrist who is prescribing Ritalin for her ADHD.
Mother testified that she has completed an eight-week parenting program and is halfway through another. She has sober friends and is working full time at Taco Bell. She is a team trainer and will soon start management training. Mother is renting a room from a couple who own a home and they have agreed to allow the minor to move in with her.
Mother now gets onto the floor with her daughter to play. They draw and play games together. She has learned how to calm her daughter when she has tantrums. Mother takes her to the bathroom, away from distractions, washes her face, and gets her to smile and calm down.
The juvenile court first considered the section 388 petition. It acknowledged mother's progress and recognized that there were changed circumstances. The court indicated that it was a "close case," but concluded that mother had not met her burden to show that five to six months more of services would be in the best interests of the minor. The court indicated that there is a rebuttable presumption that the best interests of the child is to remain in foster care. When the minor came into care she had significant behavioral problems and developmental delays. She displayed a lack of attachment to mother which did not become stronger during the time she was in care. The minor had lived with mother for one and a half years before removal. Although mother has had visitation for over a year, she is only beginning to display any kind of a nurturing and adequate parenting relationship.
The court stated, "[t]he focus today . . . is on permanency, and the question in my mind was whether the case should shift focus to one of reunification if I were to grant the 388. In other words, should the focus over the next five months be on reunifying [the minor] with her mother versus allowing [the minor] to strengthen the bond with her currently foster family. And I think the focus should be on the permanency aspect given that fact that the bond right now, as I see it with mom, is not very strong."
On December 5, 2007, the juvenile court concluded that the minor would not benefit with another five months of visits with the mother and denied the section 388 petition. Based on the reasoning outlined above, the court found that the minor is adoptable and no exceptions apply. It terminated the parental rights of mother and the minor's alleged father and set the matter for a post-permanency planning hearing on May 5, 2008.
DISCUSSION
Section 388 Petition
Under section 388, a juvenile court is authorized to modify a prior order if a petitioning parent shows a change of circumstances or new evidence and establishes that modification is in the best interests of the child. (§ 388, subd. (c); In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Eric E. (2006) 137 Cal.App.4th 252, 260.) 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.,at p. 318.) "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." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
Mother claims the juvenile court abused its discretion in denying her section 388 petition. She contends her circumstances have changed and it is in the minor's best interest to reinstate services. Mother argues that she resolved her drug problem and will no longer enter into abusive relationships with men. She also asserts that it was premature for the HSA to advocate for adoption when the minor had only been in her current placement for six weeks.
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. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.)
The record reflects that the juvenile court carefully considered these factors before reaching its decision. It found that there is not a significant parent-child bond that would outweigh the benefit conferred upon the minor through adoption. The court considered the strength of the existing bond between mother and the minor compared to the strength of the minor's bond with the present caretakers. It also considered the length of time the minor has been in the dependency system. Mother has not shown that modification would be in the minor's best interests.
Mother next contends the juvenile court erred because it should have considered both reunification and permanency when ruling on her petition. She claims this would have allowed the HSA to provide permanency planning and monitor the current placement, while mother received services. Mother's argument is without merit. The court applied the correct standard in ruling on the section 388 petition. After it was denied, the court properly moved on to rule on the section 366.26 motion. There was no abuse of discretion.
Parental Relationship Exception to Adoption
Mother contends that the juvenile court lacked substantial evidence to supports its finding that the parental relationship exception does not apply. She also claims that, while the allegations in the petition with respect to D.W. were serious, it was not alleged that she had participated in the same abuse.
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. However, a court may choose not to terminate rights if it finds, under an enumerated exception, "a compelling reason for determining that termination would be detrimental to the child." (Id., subd. (c)(1)(B).) One such exception applies when there exists a beneficial parent relationship. This exception requires a showing of "regular visitation and contact with the child and [that] the child would benefit from continuing the relationship." (Id., subd. (c)(1)(B)(i); In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
"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. (2005) 132 Cal.App.4th 212, 229.) There must be 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. (2000) 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.)
Courts are divided as to the standard of review to be applied to a finding on the parental relationship exception. Most have applied a substantial evidence standard, which asks whether there is any substantial evidence, contradicted or otherwise, supporting the juvenile court's ruling. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Others have applied the abuse of discretion standard, which asks whether the court exceeded the bounds of legal discretion by making an arbitrary, capricious or patently absurd ruling. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Under either standard, the juvenile court's finding is proper because the minor was very young when she entered foster care and had spent only one and a half years in mother's care. The minor's visits with mother appear to have been a pleasant diversion. However, mother's role in the minor's life was not as parent, but that of a visitor. Substantial evidence supports the juvenile court's finding that the parental relationship exception did not apply.
Compliance with Indian Child Welfare Act
Mother claims that juvenile court and HSA failed to comply with the Indian Child Welfare Act (ICWA) notice requirements. She asserts that the notices sent to the Bureau of Indian Affairs (BIA) and three Cherokee tribes was insufficient.
Following the filing of mother's opening brief, we granted HSA's motion to augment the record. It indicated that it had cured the defects in compliance with ICWA. The HSA sent a revised form containing all the information mother could provide to the BIA, the Cherokee Nation, United Keetowah Band of Cherokee Indians and Eastern Band of Cherokee Indians. The form, along with the child's birth certificate and dependency petition, were sent to the BIA and three tribes by certified mail, with a return receipt requested. All tribes sent a letter confirming the child is not eligible for membership. HSA submitted this evidence to the juvenile court which found that HSA provided proper inquiry and notice as required by ICWA, and that it does not apply.
The orders denying the modification petition and terminating parental rights are affirmed.
We concur: GILBERT, P.J., PERREN, J.