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In re R.S.

Court of Appeal of California
Sep 8, 2008
No. F054985 (Cal. Ct. App. Sep. 8, 2008)

Opinion

F054985

9-8-2008

In re R.S. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. C.S., Defendant and Appellant.

Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Plaintiff and Respondent.

Not to be Published


OPINION

THE COURT

Before Vartabedian, A.P.J., Levy, J., and Kane, J.

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

C.S. is the mother of four children who have been dependents of the juvenile court since early 2006 and with whom she failed to reunify. At a permanency planning hearing (Welf. & Inst. Code, § 366.26) earlier this year, the court denied the mothers petition (§ 388) to regain custody of her children.1 The court also found termination of parental rights would not be detrimental to the children but calendared a further section 366.26 hearing because although they had a probability for adoption, there was as yet no identified or available adoptive home for them. (§ 366.26, subd. (c)(3).) On appeal, the mother challenges the courts denial of her modification petition and no-detriment finding. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In February 2006, the Kern County Superior Court adjudged the mothers four children, who ranged in age from less than a year to six years old, juvenile dependents and removed them from parental custody. The court previously determined the children came within its jurisdiction under section 300, subdivision (b) because the mothers drug abuse caused her to seriously neglect them. Having used methamphetamine since 1993 when she was 12 years old, the mother tested positive for methamphetamine when she gave birth to her oldest child and her third child. In November 2005, as the mother continued to use methamphetamine, the children had minimal food to eat and were dirty. They also lived in a residence that smelled of urine and feces, and had soiled diapers, dirty clothes and blankets on the floor. Additionally, the mother kept her six-year-old son home from school to care for his younger siblings.

At the February 2006 dispositional hearing, the court ordered reunification services for the mother. Its case plan required the mother to successfully complete parenting classes, child neglect counseling and substance abuse counseling as well as to abstain from drug use, submit to random drug tests, and visit weekly on a supervised basis with the children. Despite 18 months of reasonable services, she failed to successfully comply with the case plan and reunify with any of her children.

During the first six months, the mother completed parenting classes and child neglect counseling. However, she had 10 presumptively positive tests for failing to test and 3 confirmed positive drug tests. It was only toward the end of this period that she started a 45-day residential drug treatment program. She also missed some visits with the children. The visits she did attend were lacking in quality. In addition, the mother was consistently late for those visits and, at least twice, she appeared to be under the influence of drugs.

In the second six months, the mother completed the 45-day residential drug treatment program. However, she was discharged from the subsequent outpatient drug counseling program for nonattendance and did not reenroll. Although she had numerous negative drug tests during this timeframe, the mother also had three presumptively positive tests and one suspicious test. Her visits with the children did improve in quality, leading to an increase in the length of each visit as well as an opportunity to visit without supervision. Supervised visits resumed after the mother cancelled some visits.

During the last reunification period, the mother once again enrolled in outpatient drug counseling only to be discharged in March 2007 for lack of attendance. At approximately the same time, she stopped submitting to random drug tests. After four negative tests, she had 14 presumptively positive tests. Although visitation was to occur weekly for two hours, the mother visited only "semi-regularly." The visits were "of moderate quality" and continued to be supervised.

In mid July 2007, the court terminated reunification services, reduced visitation to one hour a week, and set a hearing to select and implement a permanent plan for each child (§ 366.26). Days before the hearing, the mother attended an appointment to reenter substance abuse treatment and was placed on a waiting list.

Although the court set the section 366.26 hearing for a November 2007 date, it did not conduct the hearing until February 2008. In the interim, the mothers attorney petitioned to vacate the setting order, place the two younger children in the mothers care and reopen reunification services for her as to her older two children.

According to the petitions allegations and attachments, the mother completed another 45 days of residential drug treatment in September 2007, then enrolled for the third time in outpatient drug counseling, and was residing in a sober-living environment as part of a two-year residential recovery program. Starting in late July 2007, the mother again began testing negative for drugs. She was also regularly attending Narcotics Anonymous meetings.

The petition further alleged vacating the setting order, along with issuing the other requested orders, would be in the childrens best interest. It cited the mothers newfound sobriety and the fact the children, each of whom experienced multiple foster placements, were not as yet in preadoptive homes.

Meanwhile, respondent Kern County Department of Human Services (department) reported termination of parental rights would not be detrimental to the children. The two older children had a relationship with their mother whom they knew and loved. The same could not be said about the two younger children. At most, all four children had a substantial visiting relationship with the mother but it was not significant enough that they would suffer severe emotional trauma if the court terminated parental rights. The department included summaries of some visits which showed the mother either made no effort to deal with the childrens misbehavior or had little, if any, success in controlling them. Also, the department assessed the children as having a probability for adoption and yet being difficult to place. The children lived in foster homes which were neither willing nor able to adopt and, as of early November 2007, there were no prospective adoptive homes available. The department hoped to locate one adoptive home for all of the children within another six months time. Consequently, the department asked the court to find termination would not be detrimental and that the children had a probability for adoption (§ 366.26, subd. (c)(3)), in order to extend permanency planning for 180 days.

Section 366.26, subdivision (c)(3) provides:
"If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) [the statutory grounds for finding detriment] and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days. During this 180-day period, the public agency responsible for seeking adoptive parents for each child shall, to the extent possible, ask each child who is 10 years of age or older, to identify any individuals, other than the childs siblings, who are important to the child, in order to identify potential adoptive parents. The public agency may ask any other child to provide that information, as appropriate. During the 180-day period, the public agency shall, to the extent possible, contact other private and public adoption agencies regarding the availability of the child for adoption. During the 180-day period, the public agency shall conduct the search for adoptive parents in the same manner as prescribed for children in Sections 8708 and 8709 of the Family Code. At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1) or (4) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more."

As for the mothers modification petition, the department recommended against it in a written report. Although the department confirmed the mothers recent efforts to deal with her drug abuse, it noted she would not complete her outpatient drug counseling program until July 2008. The department again reported on the mothers difficulty in disciplining her children and controlling their behavior during visits.

In January and February 2008 supplemental reports, the department advised a new foster home was found for all four children and in December 2007 they were placed in the home which was located in Southern California. There were no reported problems with the placement. The foster parents indicated their interest in adopting the children once they had been in the home for an extended period of time. The department believed it located an appropriate prospective adoptive home. During a recent visit, the mother told her children they would be coming to live with her soon. The children apparently did not react to the mothers statement. After their visit ended uneventfully, the oldest child told his social worker that he liked his placement. The department continued to recommend that the court find termination would not be detrimental to the children and extend the time for permanency planning.

At the combined permanency planning and section 388 hearing in February 2008, it was undisputed the mother completed a second parenting class in January 2008. She also testified on her own behalf. At the recovery home where she continued to live, the mother stated she could have all four children placed with her. She planned on staying at the recovery home as long as she could until she found her "own place." She continued in her substance abuse classes and would graduate in July 2008.

She further admitted she had had problems in past visits with her older son. However, she believed medication he was currently receiving for his ADHD had helped. In her words, their visits were "very loving and going easy." She also thought she had learned from the extra parenting course she took and that it improved the quality of her visits with the children. She testified she regularly visited with the children who were happy to see her and wanted to play with her.

After hearing argument on the mothers modification petition, the court denied it. Although the court found there were changed circumstances in terms of the mothers housing and the direction of her drug treatment program, it did not find it was in the childrens best interests to grant the mothers request. The court noted the mothers good work was too late.

On the issue of permanency planning, the mothers counsel objected to the recommended finding that termination would not be detrimental to the children. The attorney relied on the evidence supporting the mothers modification petition. Following additional argument, the court followed the departments recommendations and found termination would not be detrimental to the children who had a probability of adoption but were difficult to place. Having also selected adoption as the permanent plan, the court set the matter for a further hearing in May 2008.

DISCUSSION

I. MOTHERS SECTION 388 PETITION

The mother contends the juvenile court abused its discretion by denying her modification request. According to appellant, she established changed circumstances by her efforts to become drug-free after her previous failure at reunification. Applying factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519, appellant further claims that reunification remained in the childrens best interests.

Any party may petition the court to modify or set aside a prior order on grounds of changed circumstance or new evidence. (§ 388, subd. (a).) The petitioning party must also show the proposed change is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Even after a court terminates reunification services, section 388 provides a means for the court to address a legitimate change of circumstances while protecting a childs need for prompt resolution of his or her custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Whether the juvenile court should modify a previously-made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In Stephanie M., supra, 7 Cal.4th at p. 318.)

Having reviewed the record as summarized above, we conclude the court did not abuse its discretion by denying appellants section 388 request. (Ibid.) We agree with the court that although appellant established her circumstances had changed, she did not show it would be in the childrens best interests to be returned to her custody. Thus, we restrict our discussion in this regard to appellants best interests argument.

To understand the element of best interests in the context of a section 388 request brought, as in this case, by a parent after reunification efforts have failed, we look to the supreme courts decision in In re Stephanie M., supra, 7 Cal.4th at page 317:

"[A] primary consideration in determining the childs best interests is the goal of assuring stability and continuity. ( Burchard v. Garay (1986) 42 Cal.3d 531, 538, and fn. 6 . . . .) `When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. ( Ibid., fn. omitted; see also In re Marriage of McGinniss (1992) 7 Cal.App.4th 473, 478 . . . .)

"[¶] . . .[¶]

"After the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point `the focus shifts to the needs of the child for permanency and stability (In re Marilyn H., supra, 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id., at p. 302.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Neither in the juvenile court nor on appeal has the mother addressed the childrens needs for permanency and stability and how those interests would be advanced by orders returning their custody to her. Indeed, she overlooks the fact that the changes she had made were relatively recent when compared to her decade-plus history of methamphetamine abuse and certainly untested in the world outside of her sober living environment. Notably, the mother offered no evidence from the programs director or staff about the extent of her progress and commitment to sobriety or regarding what she had learned that would help her cope with the stresses of life and raising children outside of her current environment and without resorting to drug abuse.

Instead, the mother urges this court to apply factors advanced by the appellate court in In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532 (Kimberly F.), to evaluate the childrens best interests. As discussed above, we do not adhere to the Kimberly F. approach in evaluating whether a court abused its discretion in this regard.

The parent in Kimberly F. lost custody of two of her children because her home was dirty and unsanitary in the "extreme." (Kimberly F., supra, 56 Cal.App.4th at pp. 521-522, 524.) By the time of an 18-month review, she made insufficient progress so the court terminated services. Thereafter, she managed to show she could keep her home in a sanitary condition and it was clean and safe. Close emotional ties between her and her pre-adolescent children also remained intact. However, the court denied a section 388 petition she brought and terminated her parental rights. (Id. at pp. 522, 526.)

On appeal, the Fourth District, Division Three reversed, concluding the juvenile court abused its discretion by denying the section 388 petition. In the process, it first rejected the use of a "`simple best interest test," that is to compare the household and upbringing offered by the natural parent or parents with that of the caretakers, in analyzing a section 388 petition. (Kimberly F., supra, 56 Cal.App.4th 526-530.) It then determined a list of factors, not meant to be exhaustive, should be considered: the seriousness of the problem leading to dependency and the reason that problem was not overcome by the final review; the strength of relative bonds between the dependent children to both parent and caretakers and the length of time a child has been in the dependency system in relationship to the parental bond; and, the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Id. at pp. 530-532.)

It is understandable that the mother here interprets the Kimberly F. factors as those applicable to determining a childs best interest on a section 388 request given the format and some of the language in the Kimberly F. opinion. However, even the Kimberly F. court described the factors it identified as a "basis on which to evaluate a section 388 motion," that is both elements: changed circumstances and best interests. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) Also, subsequent appellate opinions citing Kimberly F. have so interpreted its factors. (See In re B.D. et al. (2008) 159 Cal.App.4th 1218, 1229; In re Jacob P. (2007) 157 Cal.App.4th 819, 826; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)

We agree with Kimberly F. that the nature of a change, the ease by which a change could be brought about, and the reason a change was not made earlier bear on the element of changed circumstances. (Kimberly F., supra, 56 Cal.App.4th at p. 531.) We also have no qualms with Kimberly F. to the extent it rejects a "simple best interests" analysis and references the strength and comparable length of a childs existing bonds as factors to be considered in assessing whether a return of custody or a resumption of reunification services would be in a childs best interests. (See Stephanie M., supra, 7 Cal.4th at p. 325.)

However, Kimberly F. failed to take into account the supreme courts analysis in Stephanie M. of best interests once reunification efforts have failed. From that point forward, the focus shifts from family reunification to the childs needs for permanency and stability and a court must recognize this shift of focus in determining the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) At most, the Kimberly F. court reviewed the facts in Stephanie M. and compared them with the underlying facts in their case. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 533-534.) We choose instead to follow the direction of our states supreme court. Consequently, when a parent petitions, after reunification services have failed, for either an order returning custody or reopening reunification efforts, that parent must show how such a change will advance the childs need for permanency and stability in order for a court to find modification would be in the childs best interests.

Given that the changes in the mothers life were relatively recent and untested outside of her temporary sober living environment and the children were currently placed together in what could become an adoptive home, we conclude the mothers showing did not warrant a finding that reunification at that point was in the childrens best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

II. TERMINATION WOULD NOT BE DETRIMENTAL

The mother also contends the court was wrong to find that termination would not be detrimental to the children. First, she challenges the logic of section 366.26, subdivision (c)(3); in her view, a finding that termination would not be detrimental is nonsensical and contrary to the other finding required under the statutory provision, namely that the child has a probability for adoption but is difficult to place for adoption and no adoptive home has been identified. According to her, a no detriment finding is entirely speculative without a prospect of adoption.

The mothers approach is misguided. It looks at the issue backwards. If, at the time of the original permanency planning hearing, there was compelling evidence that termination would be detrimental to a dependent child based on one of the statutory exceptions (§ 366.26, subd. (c)(1)(B)), no purpose is served by postponing permanency planning for another 180 days and directing the public agency to contact other private and public adoption agencies regarding the childs availability for adoption and to conduct the search for adoptive parents. Thus, it is not only reasonable but important, in the case of a dependent child who has a probability for adoption but is difficult to place, for the court to first assess whether termination would be detrimental to the child.

To the extent the mother reserves the right to raise the issue anew at the further permanency planning hearing, we note that the juvenile court is not required to revisit the issue of whether termination would be detrimental unless circumstances had changed or new evidence on the issue has merged. (In re A.G. et al. (2008) 161 Cal.App.4th 664, 671.)

Additionally, the mother claims there was no substantial evidence to support the courts finding that termination would not be detrimental. Instead, in her view, the evidence established she maintained regular visitation with her children and they would benefit from continuing that relationship (§ 366.26, subd. (c)(1)(B)(i), formerly § 366.26, subd. (c)(1)(A)). Again, we disagree.

First, it is the parents burden to establish termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) When a juvenile court rejects a parents detriment claim, the issue on appeal is whether the juvenile court abused its discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

Second, there was conflicting evidence regarding whether the mother maintained regular visitation with the children. Most notably, the evidence introduced at each of the previous status review hearings during the reunification period revealed the mother did not always maintain regular visitation and contact with her child. Initially, she missed some visits and was consistently late for those visits she did attend. At least twice, she appeared to be under the influence of drugs. The visits were also lacking in quality. Although the quality of the visits improved during the second six months, leading to a greater opportunity to visit and without supervision, the mother also cancelled some visits. Once supervised visits resumed, her visits were only semi-regular. Meanwhile over the course of visitation, the mother displayed difficulty in managing her children.

In any event, the mother failed to establish that the relationship between her and each of the four children was so strong that they would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) At most, there was evidence that the older two children knew and loved their mother as well as enjoyed visits with her. However, given that the loss of a childs frequent and loving contact with a parent is insufficient to show detriment (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), we will not reverse the juvenile courts no detriment finding on this record.

The statutory exception in section 366.26, subd. (c)(1)(B)(i):

"requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: `balance[] 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (Id. at p. 575.)" (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, appellant introduced no evidence of a substantial, positive emotional attachment such that any of her children would be greatly harmed in order to compel a finding of detriment. Accordingly, the court did not abuse its discretion by rejecting appellants argument otherwise.

DISPOSITION

The findings and orders appealed from are affirmed.


Summaries of

In re R.S.

Court of Appeal of California
Sep 8, 2008
No. F054985 (Cal. Ct. App. Sep. 8, 2008)
Case details for

In re R.S.

Case Details

Full title:In re R.S. et al., Persons Coming Under the Juvenile Court Law. KERN…

Court:Court of Appeal of California

Date published: Sep 8, 2008

Citations

No. F054985 (Cal. Ct. App. Sep. 8, 2008)