Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Nos. DP011667 & DP011668 John C. Gastelum, Judge.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen, Senior Deputy County Counsel, and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Nadine H. appeals from the termination of her parental rights to her daughters, Valerie and Jeanette. She contends the juvenile court erred in summarily denying her petition under Welfare and Institutions Code section 388 and in failing to find that her relationship with the girls is significant enough to outweigh the benefits of adoption. We find no error and affirm.
FACTS
Nadine H. married Salvador H. in approximately 1991. They had two girls, Andrea and Cynthia. In 1997, Salvador “took the girls away from the mother and gave them to the maternal grandmother because the mother was not taking care of [them]” Subsequently, Nadine and Salvador separated, and Nadine became involved with other men. Valerie was born in 1998 and Jeanette in 2001. Nadine identified Valerie’s father as Bladimir F. and Jeanette’s father as Eddie V. Nadine and Salvador reconciled around the time of Jeanette’s birth.
In April 2005, Salvador’s son, Joseph, who had been living with the family for several years, found a bag of methamphetamine in the kitchen when he was making a sandwich. He gave the baggie to school authorities, who contacted the police. Joseph told police Nadine and his father are drug users. He saw his father smoke methamphetamine several times, and he has been with his father and Nadine when they buy drugs. The police report stated that Joseph “went to his principal and told her because he is tired of living with narcotic users and feels his parents pose a threat to him and his younger sisters[’] safety.”
Valerie and Jeanette were detained by the Orange County Social Services Agency (SSA) and placed with Eddie V.’s mother. In July 2005, the juvenile court sustained a dependency petition on their behalf, removed them from parental custody, and offered reunification services to Nadine. The maternal grandmother told SSA Nadine started using drugs when she was 15 years old. Neither Nadine nor Salvador had made any effort to regain custody of the older girls, and Nadine had seen them only once in the last three years.
After paternity testing was completed, Eddie V. was excluded as Jeanette’s biological father, and shortly thereafter, Eddie V.’s family stated they could no longer care for the girls. In September 2005, the girls were placed in the foster home of Sonya C.
The six-month review hearing was held in November 2005. Nadine had made “little to no progress” on her service plan. Her visits with the girls were sporadic, but they were described as “smooth” when they occurred, and the girls enjoyed seeing their mother. The court ordered six more months of reunification services, amending the service plan to require Nadine to enter a residential treatment program. In May 2006, SSA reported Nadine had not entered a residential program and had lost contact with the social worker. She had not visited the girls since January 2006.
In March 2006, the girls were moved to the foster home of Sandra V., who was “dedicated to their well-being.” Sandra initiated monthly visits with the girls’ maternal grandmother; their half siblings, Cynthia and Andrea; and their maternal aunt, Erika. The girls also had weekly telephone contact with the maternal relatives. SSA reported in June that the girls were “adjusting exceptionally well and are very comfortable in this foster home.” They referred to the foster mother as “mommy Sandra” and told the social worker they did not want to leave her.
By the end of June 2006, SSA reported that Nadine had enrolled in a residential treatment program, and SSA arranged a visit there between her and the girls. The girls were glad to see Nadine, and the visit went well. Subsequently, the visits took place weekly at the Brea Mall. With a few exceptions, Nadine attended regularly, and the girls enjoyed seeing her. They continued to thrive in Sandra’s home.
The 12-month review hearing was continued several times; the court finally set a combined 12- and 18-month review hearing, which was heard in January 2007. SSA reported that Nadine had obtained employment, but she was not progressing on her case plan. She was erratic in her drug testing and had been discontinued from the parenting program and individual counseling for missed appointments. The social worker arranged for her reinstatement, but Nadine again missed appointments. In January 2007, the juvenile court terminated reunification services and set a permanent plan selection hearing.
In July 2007, Nadine filed a petition under Welfare and Institutions Code section 388, seeking to have the girls returned to her custody. Nadine declared she was living in a sober living home for women with children, and she had “faithfully complied with all of the house rules,” which included a curfew and compliance with court-ordered services. She had been employed at Target for ten months; she had tested clean since January 2007 and had completed “a number of my Court ordered services.” She attended Alcoholics Anonymous (AA) meetings every day and had received her chip for one year of sobriety. She graduated from the perinatal program in June 2007 and took an additional 16-hour parenting class on her own. She had also completed ten weeks of individual counseling. Nadine felt it would be in her daughters’ best interests to be returned to her care because “they have expressed to me on various occasions that they miss me and want to know when they are coming home with me.”
All statutory references are to the Welfare and Institutions Code.
The social worker reported the girls told her they wanted to stay with “Mama Sandra” and not return to Nadine. They were concerned that Nadine would be mad if she knew how they felt. Jeanette asked for shorter visits with Nadine, and both children “continue to be nervous before visits . . . .” Once again, Jeanette tearfully asked the social worker “never to make them leave Mommy Sandra.” Sandra was committed to adopting both girls.
The trial court considered Nadine’s petition on September 24, 2007. Nadine’s counsel explained that since the petition was filed, she had moved out of the sober living home and was sharing an apartment with her AA sponsor. Also, she had changed her employment from Target to Auto Trader, where she had “the opportunity to make commission.” After argument, the juvenile court denied the petition without granting a hearing. The court characterized the circumstances presented by the petition as “changing as opposed to changed.” Noting that some of the changes were recent, such as a new job and a new residence, the court expressed its concern that “adding the return of the children to that new mix takes a relatively unknown situation and creates an even more substantial unknown impact on the mother and her ability to manage her sobriety if the children were also returned to her care.” The court found even if there were changed circumstances, “there is no evidence before it even on a prima facie level that granting this request would be in the best interest of these children.”
The court proceeded to take evidence on the selection of the permanent plan. The social worker testified the girls had characteristics that made it likely they would be adopted. “They’re very attractive girls. They’re beautiful. They’re very smart. They have no medical problems. They’re funny. They’re witty. They’re cute.” They had been with Sandra for 18 months, and she had consistently expressed her desire to adopt them since they were placed in her home. The social worker visited the girls monthly in Sandra’s home and observed a definite bond between the girls and Sandra. The girls were “very comfortable” with Sandra and were proud of their home. They looked to Sandra “as a parental figure to resolve any problem between them.”
The social worker testified the girls had fun with their mother during the weekly visits. “They’re eager to share their accomplishments, how well they’re doing with their caregiver, how well they’re doing in school, their Hula dancing, swimming, cheerleading.” Although Nadine had asked several times for increased visits, the social worker did not increase them. Neither Valerie nor Jeanette had ever asked for more visits with Nadine, although they both had asked several times for more visits with the maternal relatives. The social worker felt it would not be good for the girls to increase visits with Nadine. “[T]he children were upset because they didn’t know whether they were going to stay with their current caregiver or go with the mother. . . . I didn’t want the children to think that by increasing that meant that they were going to go back with mom.” The social worker discussed increased visits with the girls’ therapist, and they decided it was best not to change the visitation schedule
It was the social worker’s opinion that the girls did not want to return to Nadine. After Nadine told the girls she was getting a new apartment, they expressed concern to the social worker. “[I]t made the children nervous because they – in their mind they’re thinking she’s getting an apartment because we’re going back home with mom, and it made the children nervous.” Likewise, when Nadine told the girls she was getting a new car, Jeanette asked the social worker if that meant Nadine would be coming to pick them up. “It made them nervous.” When asked if the children would be harmed if they didn’t see their mother anymore, the social worker said “Yes.” Her conclusion was based solely on the fact “[t]hat they’re used to the once-a-week contact.” The social worker later clarified that the only detriment she anticipated from the cessation of visits would be “[j]ust a break in routine, that’s it.” This detriment would “not outweigh the benefits of adoption.”
The girls testified separately in chambers. Valerie, who was nine years old at the time, described their visits with Nadine. She said she would like to see her mother more than once a week, and she would like the weekly visit to be longer, “but my sister gets really tired . . . .” Valerie could not say whether she wanted to live with Sandra or Nadine. “Well, I don’t really know the answer for that because I both – I want to live with both of them.” She would feel sad if she was unable to see Nadine anymore.
Six-year-old Jeanette testified her mom was Sandra, although Nadine was “another person that [she] call[ed] mom.” She enjoyed visiting with Nadine and at one point said she would like to see her “every day.” But she was not unhappy when she had to miss a Saturday visit with Nadine because she “did a lot of fun stuff with my mom Sandra.” Jeanette wanted to live with Sandra and continue to visit with Nadine “[t]he same that I do now.”
Nadine testified she visited weekly with the girls at the food court in the Brea Mall. They ate lunch, talked, and played games. Sometimes they shopped. Nadine and the girls were physically affectionate with hugs and kisses. On a couple of occasions, Valerie told Nadine that she wanted to see Nadine more often and she wanted to return home. Nadine testified she and her children have a bond, and they would miss her if they did not see her anymore. “They’re used to seeing me every Saturday. Even . . . if a visit has to be canceled and rescheduled they’re able to deal with it because they know they’re going to see me the following Saturday.”
The visitation monitor testified she had been monitoring Nadine’s visits for at least six months. Nadine had not missed any of those visits and consistently “interact[ed] appropriately.” She was affectionate with the girls. Valerie returned her affection, but “Jeanette, sometimes she . . . wants it, sometimes she doesn’t . . . .” When Valerie asked when she could come home, Nadine “told her you’re safe with your caretaker so don’t worry about when you’re going to come home.” Jeanette sometimes did not participate in the visits as much as Valerie. The monitor thought “maybe she needed something else to motivate her, like [if] mom would have brought board games or something for them to play for her to be able to interact with her and Valerie too.”
The juvenile court found that it was likely the girls would be adopted, if not by Sandra, then by others. It found that the benefits of adoption outweighed the benefit of preserving the girls’ relationship with Nadine. “I know they said they cared about the mother, but . . . the court believes and finds that where they want to live is with the caretaker. That’s the home they want to stay in forever. I think they’ve been placed in a difficult position because they don’t want to hurt the mother’s feelings . . . . [I]n examining their credibility it seems to me that what they’re really telling the court is that they want to stay where they are.” The court terminated parental rights.
DISCUSSION
Summary Denial of Section 388 Petition
Nadine argues the juvenile court erred in failing to grant a hearing on her section 388 petition. She claims she made the required showing that her circumstances had changed and that the girls’ best interests would be served by returning them to her custody. We find no error.
“Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition must allege why the requested change is ‘in the best interest of the dependent child.’ (§ 388, subd. (b).) Section 388 goes on to state: ‘If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held.’ (§ 388, subd. (c).) However, the court may summarily deny the motion if the petition fails to make a prima facie showing (1) of a change of circumstances or new evidence requiring a changed order, and (2) the requested change would promote the best interests of the child. [Citation.] In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]” (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) We review the trial court’s decision for an abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
Nadine did not begin working on her case plan seriously until her children had been in the dependency system for 21 months. By then, her reunification services had been terminated, and the girls were thriving in a prospective adoptive home. By the time the court considered her section 388 petition, she had been doing well for about nine months. Although moving to a sober living home, enrolling in a drug program and attending 12-step meetings were positive shifts in her behavior, her efforts were recent compared to the length of time she had been using drugs. Experience tells us that initial efforts to rid oneself of drug addiction often result in backsliding. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.) At most, the mother demonstrated changing, not changed, circumstances, which is an insufficient showing to require a hearing on a section 388 petition. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.)
Furthermore, Nadine failed to make a prima facie showing that returning the girls to her custody would be in their best interests. After 21 months as dependents of the juvenile court, the girls’ primary need is for permanence and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Sandra is meeting that need for them; whether Nadine could do so in the future is questionable. Her section 388 petition presented no evidence that removing the girls from Sandra’s home and returning them to Nadine at this point would serve their best interests.
Inapplicability of the Benefit Exception
Nadine next argues the juvenile court erred in failing to find that her relationship with the girls would benefit them more than the termination of her parental rights and their subsequent adoption. We disagree.
At the permanent plan selection hearing, the juvenile court will ordinarily terminate parental rights if it finds by clear and convincing evidence that the child is adoptable. The termination of parental rights to an adoptable child can be avoided, however, if the court finds “a compelling reason for determining that termination would be detrimental to the child” due to at least one of several statutorily-described circumstances. (§ 366.26, subds. (c)(1)(B)(i)-(iv).) The so-called benefit exception describes circumstances where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) Nadine bears the burden of proving that the benefit exception applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) We review the juvenile court’s decision for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
“To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination. [Citation.] The benefit to the child from continuing such a relationship must also be such that the relationship ‘“promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.”’ [Citation.] A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may benefit the child to some degree but does not meet the child’s need for a parent. [Citation.] Adoption, when possible, is the permanent plan preferred by the Legislature if it is likely the child will be adopted. [Citation.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450.)
Although the girls, especially Valerie, feel loyalty and affection towards Nadine, it is Sandra who parents them on a daily basis. Their relationship with Sandra has assumed a more important role in their lives than their weekly monitored visits with Nadine. While the girls miss their mother and may suffer some detriment if they can no longer see her, the long-term benefit they will gain from adoption is greater.
DISPOSITION
The judgment terminating parental rights is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.