Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. Nos. 14491, 14492
Margulies, J.
Rebecca O. and William B. (Mother and Father) appeal from orders terminating their parental rights as to minors S.B. and W.B. Mother contends that the juvenile court abused its discretion in denying her pre-termination Welfare and Institutions Code section 388 petition seeking an extension of reunification services. Father and Mother join in arguing that the adoption report of the Napa County Department of Health and Human Services (Department) failed to provide an adequate evidentiary foundation for the court’s finding of adoptability. Finding no basis for reversal on either ground, we affirm the orders terminating Mother’s and Father’s parental rights.
All further statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
On October 21, 2005, the Department filed identical petitions alleging that S.B. (born in April 2003) and W.B. (born in June 2004) were each described by subdivisions (b) and (g) of section 300. The petitions alleged under subdivision (b) that the minors had suffered, or were at substantial risk of suffering, serious physical harm or illness as a result of the failure or inability of their parents to supervise or protect them adequately, by the willful or negligent failure of their parents to provide them with adequate food, clothing, shelter, or medical treatment, and by the inability of their parents to provide them with regular care due to the parents’ mental illness, developmental disability, or substance abuse. The petitions alleged under subdivision (g) that the minors had been left without any provision for support in that Mother had been arrested and booked into the Napa County Detention Facility on October 19, 2005, and Father’s whereabouts were unknown.
The section 300 petitions alleged that on the night of October 18, 2005, Mother and Father engaged in a verbal altercation and Father left the minors in the care of Mother even though he was aware that she was intoxicated. The petitions further alleged that on October 19, 2005, Mother was arrested for physically assaulting her elderly landlord and the minors witnessed the assault; that on that date, Mother was unable to care for the minors due to her intoxicated state, the house was unkempt and dirty, and W.B. was dirty and smelled of feces. In addition, the petition alleged that there had been multiple child welfare referrals involving the family, and that S.B. had been a dependent of the court from nine days after her birth until January 31, 2005.
In its detention report, the Department stated that Father failed to show up for his appointment to be interviewed by the social worker. Mother was interviewed in jail. She reported that she had had a few drinks and denied being under the influence of drugs when arrested. She reported that she had been clean for the past three years. Mother did not remember hitting or threatening her landlord, and claimed he attempted to hit her with his cane. She said she did not remember what happened next or why there was blood in the house. Mother denied that her house was dirty and denied neglecting her children. At the detention hearing, the children were ordered detained and the matter was continued for a jurisdiction hearing.
At a contested jurisdiction hearing held on December 12, 2005, the juvenile court sustained all counts in the petitions. At the disposition hearing on January 5, 2006, the children were declared dependents and ordered placed in foster care. Reunification services were ordered for both parents.
Mother was sentenced and transported to the Valley State Prison for Women in Chowchilla on May 26, 2006 for the attack on her landlord in October 2005, and she remained there until her release in November 2006. At the July 6, 2006 six-month status review hearing, the court ordered six additional months of reunification services. Mother was unable to fully comply with the case plan at that time due to her incarceration, but she continued visitation with the minors once per month at the state prison.
An interim oral review was held on September 12, 2006, at which the court was informed of Mother’s tentative November release date. The Department reported that Father had completed day treatment at the adult recovery program and had begun after-care on April 14, 2006. However, Father stopped attending between May 18 and August 24. He tested positive for alcohol twice and methamphetamine once after May 19, and had missed 24 tests before resuming testing in August. All of his tests after August 23 were clean. Father was attending Alcoholic’s Anonymous (AA) meetings again, had resumed individual therapy, and was on the waiting list for a residential drug treatment program.
In its 12-month status review report, the Department recommended that services be terminated for both parents because neither parent had made substantial progress in their case plans or in alleviating the conditions that led to the dependency proceeding. The 12-month review hearing was ultimately continued until December 20 for a contested hearing. By the time of the hearing, Mother had been released from prison, ending 13 months of incarceration following the October 2005 incident. She testified that while in prison she had completed an employment readiness class and a communications course, had attended Narcotics Anonymous (NA) and AA classes on a weekly basis, had graduated from a parenting class, and had visited monthly with the minors. Following her release, she began participating in an outpatient program, the Women’s Recovery Program, which is a day treatment program lasting a minimum of six months. Mother admitted that she had previously relapsed after completing similar drug rehabilitation programs in 2003 and 2004. Mother was also attending NA and AA meetings, anger management classes, and counseling sessions.
Expressing its approval for the efforts the parents were making, the court rejected the Department’s recommendation, and ordered that both parents receive an additional six months of services. The court noted that the parents had made significant progress in resolving the issues that brought the case before the court.
Further progress was reported at the three-month interim review hearing in February 2007. Mother had been consistently visiting with the minors and behaving appropriately with them. She had been consistent in attending the Women’s Recovery Program and was making progress and testing clean. She had begun individual therapy and was participating in psychiatric care. The court ordered that visits for the parents be a minimum of three hours per week and it gave the Department the discretion to initiate unsupervised visits.
In connection with the 18-month status review hearing on April 10, 2007, the Department recommended that the minors be returned to their parents’ custody with family maintenance services. Mother was continuing to comply with her case plan and was reporting that she had been clean and sober for 17 months. She had been having unsupervised visits with the minors, including one weekend visit, during the last six weeks. The visits were reported to be going well, and the Department was pleased with the efforts and progress made by the parents. The Department reported that Mother was highly motivated and believed that this time was different and that she had the strength to stay clean. The court found that Mother had made substantial progress and ordered family maintenance as the permanent plan for the minors.
On May 29, 2007, Mother reported that both she and Father had relapsed by using alcohol. As a result of this incident, Father’s services were terminated. The Department reported to the court that Mother had relapsed at the same time as Father and a treatment plan was created for her. On June 28, 2007, the Department learned that Mother had been out of contact with Belinda Laird, her mental health worker. Laird went to Mother’s house and determined that Mother and children were out of town. Mother called the social worker on July 3 and stated that she had taken the minors to Lake County from June 23 to July 1 to celebrate W.B.’s birthday, and that she had used methamphetamine and stayed with a male friend who was a drug dealer in Lake County.
On July 6, 2007, the Department filed a section 387 petition alleging that the minors’ placement with Mother had not been effective in their protection due to Mother’s relapse. The minors were ordered detained and a jurisdiction/disposition hearing was scheduled. The Department’s August 6 addendum jurisdiction/disposition report stated that, after the children were detained on July 3, Mother had repeatedly missed visits with the minors, failed to appear on multiple occasions for drugs tests that she had agreed to, and tested positive for methamphetamine on two occasions.
At the August 20, 2007 contested hearing on the section 387 petition, Mother admitted that she had relapsed. She testified that she had entered another drug rehabilitation program, Project 90, shortly before the contested hearing. Mother insisted that her desire to be reunited with her children would motivate her to succeed in recovery despite her relapse, and that she was confident she would never relapse again. Notwithstanding this testimony, the juvenile court terminated Mother’s services and set the matter for a section 366.26 hearing on November 29, 2007.
On November 27, 2007, Mother filed a section 388 petition requesting that the court modify its order terminating services, citing the changed circumstance that she had graduated from Project 90’s rehabilitation program, and was attending daily NA/AA meetings, visiting regularly with the minors, seeing her therapist weekly, testing clean, seeing a psychiatrist to evaluate her medication, and anticipating starting employment. She argued that her request for services was in the minors’ best interests because her daughter was extremely bonded to her and the minors were bonded to each other.
A contested hearing on Mother’s petition began on December 19, 2007. Sarah Heid, Mother’s former drug and alcohol counselor, testified that she felt Mother would succeed this time because she was demonstrating the behavior of a person in recovery rather than just going through the motions. Heid had been Mother’s drug counselor two years earlier but was not currently her counselor. Heid admitted that she knew Mother had gotten clean on at least four previous occasions and had relapsed each time. Heid also admitted that she did not have any expertise in evaluating Mother’s parenting abilities.
The second witness was Mother’s older daughter, C.H., who is a 25-year-old adult. She testified that Mother seemed stronger and more invested in her own recovery than at other times when she had tried to stay clean and sober. She further testified that S.B. seemed very close to Mother and had a hard time leaving when it was time to end the visits. C.H. admitted that she knew her mother had drug problems for a long period of time, and acknowledged that she had been raised primarily by her father. C.H. was later recalled to the stand to testify about out-of-court statements she had allegedly made to two of Father’s cousins that she was in fact concerned about Mother’s ability to stay clean. She did not deny expressing that concern. According to one of the cousins, C.H. told them outside of the courtroom that she wanted the minors to go back to Mother because she wanted a relationship with S.B., not because she actually believed Mother could stay clean.
The social worker assigned to the case, Jennifer Marcelli, testified that Mother told her she had been using drugs for 30 years. Mother told Marcelli that the longest period she had been clean was 18 months, and that she had been incarcerated for most of that time. Marcelli opined that, based on Mother’s statements and her history through two dependency proceedings, Mother had not shown that she could sustain sobriety outside of a very structured, contained environment.
Mother testified that she had completed the Project 90 program one month earlier, and had turned her life around. She admitted that she had completed a residential treatment program during the first dependency proceeding and had S.B. returned to her, and that she relapsed within six months, leading to the present proceeding.
The mother’s therapist, Del Domezio, testified that he believed by completing the Project 90 program Mother had a “chance to become clean and sober,” but that she would need to work on “long-term and deep-[seated]” issues relating to the traumas she suffered as a child if she was going to be successful. Domezio agreed that there was a potential for her to relapse if she did not stay focused and committed to her treatment. Domezio admitted that he did not have expertise on the issues of drug and alcohol rehabilitation, and could not offer a well-founded opinion as to whether the minors would be safe if they lived with Mother.
The juvenile court denied Mother’s petition. The court acknowledged that Mother had made progress by completing Project 90, but noted that she had completed similar programs before. The court observed that Mother had previously been able to stay clean for long enough to get her children back, only to relapse. It expressed its concern that the minors’ best interests would not be served by extending services because, if services were extended, “we’d be back here in the same situation.” The court concluded: “I believe that the 18 months have run, that there has been sufficient time to basically get things together, and it just hasn’t happened and I have to really consider the children here and the back and forth that’s happened, and I think it’s time for that to stop.”
The matter came on for a contested section 366.26 hearing on January 14, 2008. Christina Grattan, who prepared the adoption assessment for the hearing on behalf of the California Department of Social Services, testified that S.B. and W.B. were adoptable and that prospective adoptive parents had been identified, who were relatives of Father. The parties thereafter had an opportunity to cross-examine Grattan about her opinion and report. Following a break taken by the court to complete other proceedings, the parents advised that they were withdrawing from the section 366.26 contest and submitting on the social worker’s report.
The court found by clear and convincing evidence that the minors were adoptable, ordered adoption as the permanent plan, and terminated the parental rights of both parents. These timely appeals followed.
II. DISCUSSION
Mother contends that the juvenile court abused its discretion in denying her section 388 petition. Father and Mother join in arguing that the Department’s adoption report failed to adequately assess the minors’ sibling contact with their six half-siblings and, therefore, could not as a matter of law provide an adequate evidentiary foundation for the court’s finding of adoptability.
A. Denial of Modification Petition
Mother maintains that it was an abuse of discretion for the juvenile court to terminate her services based upon her relapse during the summer of 2007. According to Mother, the court applied an unfair and unrealistic requirement that she suddenly be able to surmount the disease of addiction—a disease she had been struggling with for 30 years—within 18 months. Mother urges that a parent who has affirmatively acknowledged her addiction problem, and is fully engaged with the effort to control it, should not be barred from reunifying with her children on the theory that her risk of relapse—a risk inherent in the incurable affliction from which she suffers—automatically makes her an unfit parent. Under Mother’s approach, “changed circumstances” for a parent whose chronic disease led to the dependency should instead be judged by the parent’s diligence, sincerity, and progress in confronting the disease.
Mother’s position is untenable because it conflicts with the carefully balanced statutory scheme described in In re Marilyn H. (1993) 5 Cal.4th 295 (Marilyn H.). Once a child has been declared a dependent and reunification services have been terminated, the parent’s fundamental interest in the care and companionship of the child must give way by law to the child’s interest in stability and permanence. (Id. at pp. 306–307, 309.) Although the parent’s right to show changed circumstances after reunification services have been terminated is an essential procedural safeguard, it is still the parent’s burden to show that an extension of such services is in the child’s best interest. (Id. at pp. 308–310.) The child cannot be required to wait indefinitely for the parent to overcome the issues that led to the dependency. (Id. at p. 310.) Mother’s proposed standard would replace the balanced set of procedures and standards described in Marilyn H. with a regime specially adapted for the addicted parent. Instead of promoting stability and permanence for the child, Mother’s proposal would sacrifice the child’s interest in a stable home, and risk the child’s future adoptability, in order to accommodate a parent who, as in this case, may have had 12 or 18 months or more to demonstrate the ability to provide a safe and secure home. Furthermore, Mother’s approach would saddle the court with an impracticable standard. Rather than being able to rely on the most objective evidence of the parent’s ability to remain clean and sober—his or her performance during the dependency proceedings and past history—the court would be required to divine the depth and sincerity of the parent’s motivation to stay clean. We find nothing in the dependency statutes or case law to warrant such a drastic departure for drug-related dependency proceedings from the rules and standards that apply to all other dependency cases.
We note that Mother had been through one previous dependency proceeding with S.B. According to the Department, Mother had received a total of 40 months of services by the time of her section 388 petition.
Thus, the case law is clear that a parent with a history of drug abuse must show more than a promising beginning of recovery. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610 [initiation of drug rehabilitation is not a changed circumstance sufficient to warrant a section 388 hearing]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 [addiction requires much more than 120 days of sobriety to show real reform]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [father’s seven months of sobriety insufficient to show changed circumstances in light of his substance abuse history].)
Whether an order should be modified rests within the juvenile court’s sound discretion, and its decision will not be disturbed on appeal unless it clearly exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.) In this case, the evidence showed that Mother had a 30-year history of substance abuse and an established pattern of abstaining for some period of time and then relapsing within a relatively short time after leaving the structure of an intensive treatment program. She had relapsed four times after graduating from treatment programs similar to the program she completed one month before the hearing on her modification petition. The longest period she had been able to stay sober was 18 months, during which period she had been incarcerated for 12 of the 18 months. She had relapsed again in the summer before the hearing on her modification petition, and had only been clean and sober for a few months before the hearing. Despite having received extended services in two dependency proceedings, Mother was unable to demonstrate convincingly that she could abstain from drug or alcohol abuse while living outside of a highly structured environment.
While we do not minimize the effort Mother has made, we cannot say based upon this record that the juvenile court abused its discretion in denying her petition.
B. Adequacy of Adoption Assessment
Mother and Father argue that the adoption assessment report was inadequate and for that reason the juvenile court did not have substantial evidence from which to make a finding of adoptability. In particular, the parents maintain that there was insufficient evidence to show whether or not the beneficial sibling relationship exception applied and created a legal impediment to adoption. The record does not disclose that the parents lodged any objection to the assessment report along these lines in the juvenile court. Notwithstanding the general rule that points not argued in the trial court may not be raised on appeal, the parents assert that their claim comes within the exception to that rule for challenges based on the sufficiency of the evidence. They rely principally on In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.).
Mother and Father rely on section 366.26, subdivision (c)(1)(B)(v), which provides that the court may reject adoption if it finds that adoption would substantially interfere “with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest . . . as compared to the benefit of legal permanence through adoption.”
Valerie W. held that deficiencies in an adoption assessment report, if sufficiently egregious, may undermine the basis of a court’s decision to terminate parental rights. (Valerie W., supra, 162 Cal.App.4th at p. 14; see also In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) In Valerie W., the report failed to include an assessment of the eligibility and commitment of both applicants seeking to jointly adopt the minors, the social history for each applicant, a description of the relationship between the children and each applicant, and the motivations of each applicant for seeking adoption. (Id. at pp. 13–14.) In fact, the report did not expressly state that there were to be two adoptive parents. (Id. at p. 10.) The report also failed to include any assessment of the minor brother’s serious medical condition, which was necessary in order to determine whether the prospective adoptive parents were capable of meeting his needs. (Id. at p. 14.) On these facts, the Court of Appeal in Valerie W. reversed the finding of adoptability for lack of substantial evidence and remanded the matter for a determination of that issue based on a complete assessment report. (Id. at p. 16.)
The facts here are quite different than in Valerie W. As framed by Mother and Father, the issue before us is not whether there is a factual basis for the court’s finding that the minors were likely to be adopted under section 366.26, subdivision (c)(1), but whether there is a basis for the court’s implied finding that the exception to the termination of parental rights, based on interference with a sibling relationship under subdivision (c)(1)(B)(v), does not apply. But unlike the issue of adoptability in Valerie W., it is the parents who bear the burden of proving that one of the subdivision (c)(1)(B) exceptions in fact applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
The only facts in the record relevant to the sibling exception—those contained in the assessment report—offer little or no support for its application. The assessment report points out the considerable age difference between the minors and their half-siblings: “On the maternal side [the minors] have three half siblings. The half siblings are not dependents and are considerably older. [C.H.] is approximately 25 years old and has expressed an interest in keeping a life long connection with [the minors]. There are also two half brothers, [R.], approximately 19 years old and [N.], approximately 11 years old. The relationship between [the minors] and their older half siblings is not completely known. [¶] On the paternal side, [the minors] have three half siblings . . . . The half siblings are not dependents and are considerably older. This worker has met with two of the older half siblings. . . . [They are] approximately 26 years old[,] . . . 17 years old[,] . . . [and] 19 years old.”
Given these age differences, it seems at first blush improbable that the minors spent any significant length of time in the same home with any of their half-siblings or could have shared significant common experiences with them. But if Mother and Father believed the assessment report created a false impression about or omitted material information bearing on the sibling exception, they had ample opportunity to correct the record. They could have cross-examined the author of the report about the missing information. They could have called their own witnesses to establish that the sibling exception might apply. Mother and Father were in the best position to know about the minors’ relationships with their half-siblings and to bring that information to the court’s attention. The court has no sua sponte duty to make findings regarding the sibling exception in the absence of any claim that it might be relevant. Contrary to the parents’ contention, the sibling exception does not constitute a type of “legal impediment” to adoption that the courts must consider under certain circumstances. (See Valerie W., supra, 162 Cal.App.4th at p. 13 [court must consider legal impediments to adoption by a particular prospective adoptive parent when the minor is deemed likely to be adopted based solely on that prospective parent’s willingness to adopt].) In the absence of any evidence in the record that the sibling exception might apply, we decline to hold that the failure of the assessment report to delve more thoroughly into the subject is such an egregious shortcoming that it casts doubt on the court’s adoptability determination.
In our view, Mother and Father forfeited their present objection to the assessment report by failing to raise it in the juvenile court. The exception recognized in the case law for challenges to the sufficiency of the evidence has no application to an issue on which the parents had the burden of proof and the court had no duty to make findings. In any event, based on the record before us, we cannot say that the deficiency to which Mother and Father now object undermines the basis for the court’s decision to terminate their parental rights.
III. DISPOSITION
The orders appealed from are affirmed.
We concur: Marchiano, P.J., Flinn, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.