Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK 58403, Jan Levine, Judge.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.
Robert E. Kalunian, Acting County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, J.
Lucille C., mother of Victoria J., filed notices of appeal from a denial of her petition under Welfare and Institutions Code section 388 and from an order under section 366.26 that terminated Lucille’s parental rights and directed Victoria to be placed for adoption. These two appeals have been consolidated for all purposes. We affirm both orders.
All further statutory references are to the Welfare and Institutions Code.
FACTS
1. The General Background
Victoria was born in January 2008. Victoria is Lucille’s fifth child. Her three oldest children are now adults; she lost custody of these three children, one of whom she had abused. The abused child was placed with the father, the other two went to grandparents who obtained legal custody of them. Lucille’s fourth child, Evelia, tested positive for cocaine at birth in 2005. Lucille’s parental rights over Evelia were terminated and eventually this order was affirmed on appeal.
A first appeal resulted in a reversal because we held that Lucille did not have notice of the hearing terminating parental rights. After a valid notice had been issued and a new hearing was held, in the second appeal we affirmed the order terminating parental rights over Evelia.
Lucille has a long history of substance abuse and criminal activity. In June 2006 she was convicted of grand theft auto and was placed on probation. After Victoria was born, Lucille violated parole, was arrested and was placed in a drug-treatment program. She was discharged in March 2008 from the program because of a violation of the rules. Although she initially agreed that Victoria should be placed in a foster home, she changed her mind, which caused the Los Angeles County Department of Children and Family Services (DCFS) to file a section 300 petition. That petition having been granted, Victoria was placed with the same caregiver who was taking care of Victoria’s sister, Evelia.
When the court took up the matter for mediation on May 5, 2008, all the signs were good. DCFS reported positively about Lucille, who was now in a substance abuse rehabilitation program where she was doing very well in all respects, including adhering to all rules and regulations and participating in parenting classes and psychotherapy. The court offered Lucille reunification services.
Unfortunately, six months later, when the court again took up the case, Lucille’s life had fallen apart again. Her whereabouts were reported as unknown by DCFS but it was known that she was again abusing drugs and was four months pregnant.
Victoria was now (November 2008) nine months old and had been with her caregiver since April, where she was doing very well. At this point, DCFS recommended against returning Victoria to Lucille, and also recommended terminating reunification services, as Lucille was believed to be homeless, pregnant and noncompliant with her treatment program. Lucille was not visiting Victoria regularly and when she did visit, she ignored Victoria and spent her time and attention on Evelia.
Lucille, who was present at this hearing, told the court that she had been living at the same address for four weeks. She requested a continuance in light of DCFS’s recommendation on the matter of reunification services. The court set the matter for a contested hearing to be held on December 17, 2008, and ordered DCFS to facilitate Lucille’s visits with Victoria.
Lucille’s performance during the summer and fall of 2008 was mixed. Although Lucille visited Victoria fairly frequently during this period, on several visits she appeared to be under the influence of some unknown narcotic. DCFS reported that Lucille had been a “no show” for 14 drug tests between May and December 2008. She did attend, however, most of the scheduled individual counseling sessions, the alcohol education group sessions and all of the 12-step meetings. She did test free of drugs on two occasions. Although she was making progress, it was recommended that she should continue with the various programs.
The court held the contested review hearing on December 17, 2008. Lucille was not present but her counsel was, who informed the court that the matter could proceed to legal argument. DCFS and the minors’ counsel argued that reunification services should be terminated. The argument was that Lucille had not completed all of the programs, that she had not been consistently in touch with DCFS and that her drug testing was only partial. Lucille’s counsel stressed that Lucille had been making progress, albeit her record was imperfect, and that she had frequently visited Victoria; counsel requested a continuation of reunification services to the 12-month review.
The court disagreed, finding that there was no substantial probability that Victoria could be returned to Lucille by the 12-month date; the court terminated reunification services. The court set the section 366.26 hearing for April 20, 2009.
During this hearing, Victoria’s caregiver informed the court that she was interested in adopting Victoria and the court set a review of a permanent plan for June 10, 2009. The court also ordered that future visits with Victoria would take place in the DCFS office because the caregiver no longer wanted Lucille to come to her home.
DCFS’s report of April 2009 was negative when it came to Lucille but positive about Victoria, who had been with her current caregiver for about a year and was doing very well. According to DCFS, Lucille had failed to visit Victoria between October 2008 and April 2009. (Lucille claimed that she visited Victoria four times during this time period.)
2. The Section 388 Petition
Lucille’s section 388 petition, filed on April 6, 2009, requested a reinstatement of reunification services. In substance, the petition contended that Lucille had completed and attended almost all of the various counseling and therapy sessions and that she had been free of drugs since September 2008.
The response by DCFS contained the negatives about Lucille that we have already set forth and added the observation that Lucille had fraudulently insured herself and Victoria, which prevented the caregiver from utilizing Medi-Cal for Victoria. DCFS also noted that it was unable to contact Lucille as telephone calls were not returned.
Lucille’s testimony at the hearing on her section 388 petition was not persuasive. She attempted to shift the blame for her failure to visit Victoria to allegedly conflicting directions from the social worker and to DCFS’s alleged failure to return her telephone calls.
Predictably, the court denied the section 388 petition. The court noted that Lucille did not have the kind of relationship with Victoria that she should have and that Victoria’s caregiver was the only mother that Victoria has known. The facts of record strongly endorse both of these observations.
3. The Section 366.26 Hearing
On June 10, 2009, the court received a status report from DCFS. The report noted that a “P26” hearing was scheduled for July 20, 2009, and the report recommended that the permanent plan should be adoption of Victoria by her caregiver, who was also adopting her sister Evelia. As far as visits were concerned, the report stated that Lucille resumed visiting Victoria in May 2009 but the visits were still sporadic; the caregiver reported that Lucille “continues to provide little attention to Victoria and seems more focused on sibling, [Evelia].” As far as the caregiver was concerned, the report states that “Victoria and her caregiver appear to share a special bond, as Victoria looks to caregiver for physical and emotional support. She runs to her for comfort, cries for her and seeks caregiver’s attention.” The court’s minute order of June 10, 2009, states, among other things, that adoption appeared to be the appropriate plan and the minute order directs DCFS to submit a report for the July 20, 2009 hearing.
Lucille, represented by counsel, was present during the hearing held on July 20, 2009. At the outset of the hearing, Lucille’s counsel stated that “we’d ask this matter be set for a contest.” The court replied that “today was set as a contest.” After a short inconclusive exchange the court stated it thought this hearing was “a contest, but we can continue it.” The minor’s counsel asked for an offer of proof. Without waiting for the court to indicate that an offer of proof was required, Lucille’s counsel replied: “We would rely on the (c)(1)(B)(1) exception, Your Honor, in that there’s been consistent visitation and to sever that bond would be a detriment.”
Subdivision (c)(1) of section 366.26 provides that if the court finds that the child will be adopted, the court shall terminate parental rights unless one of two scenarios applies. The one referred to by counsel is that if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship,” the court is empowered to find that termination of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i).)
The minor’s counsel responded that during the hearing on the section 388 petition, Lucille testified that she visited only four times between October 2008 and May 2009 and she closed by saying that “mother’s offer of proof fails to state any offer of visitation.”
The court stated that “[b]ased on the information that we received at the hearing on the 388, I don’t see how I can find mother had consistent and regular visitation which is one of the prerequisites for... [subdivision (c)(1)(B)(i) of section 366.26] [¶]... [¶]... that the parents have had consistent, regular contact with the child. I can’t make that finding, so I’m going to have to go forward with the hearing.”
Lucille’s counsel replied that, according to Lucille, since March (this was July) “visitation has greatly increased” to visits twice a week and that Lucille intended to file another section 388 petition.
“THE COURT: Well, the report of June 10th [2009] states mother resumed her visits during the second week of May, in between, and still shows inconsistency on her part, continues to provide little attention to Victoria, and seems more focused on Evelia.
“MS. JOHNSON [Lucille’s counsel]: Mother is indicating that’s not true. She has pictures she would present.
“MS. GRIGLIO [DCFS’s counsel]: Your Honor, I think even if the court were to take mother’s offer of proof as true, it still would not meet the exception.
“THE COURT: I’m going to make that finding, myself.... [¶] See, I have that I set a contested hearing on April 20th for May 26th because notice wasn’t good for April 20th. And then we had to set a new.26 date that day because the notice wasn’t any good and that it was still contested.
“MS. JOHNSON: Due to the confusion, Your Honor, I would ask it be put over.
“THE COURT: I understand, Ms. Johnson, and I would put it over if I felt that mother could meet the minimal requirements for the (c)(1)(B)(1) [sic] exception, but I don’t think she can. I’m sorry.”
The court concluded that Victoria is adoptable and it terminated Lucille’s parental rights.
DISCUSSION
1. The Court Did Not Err in Not Proceeding with a Hearing to Determine Whether the Section 366.26, Subdivision (c)(1)(B)(i) Exception Applied
Appellant contends that her request for a contested hearing should have been granted and that a denial of that request deprived her of procedural due process.
“Because due process is... a flexible concept dependent on the circumstances, the court can require an offer of proof to insure that before limited judicial and attorney resources are committed to a hearing on the issue, mother had evidence of significant probative value.... The trial court can therefore exercise its power to request an offer of proof to clearly identify the contested issue(s) so it can determine whether a parent’s representation is sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses.” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122 [addressing a § 366.26 hearing].) Appellant concedes that she did not have an automatic right to a hearing and that the court could request an offer of proof.
We therefore begin with the premise that the trial court was empowered to request an offer of proof. The question is what that offer produced.
The offer of proof must be evaluated in terms of the test that is applied in determining whether, under section 366.26, the parent-child beneficial relationship exception to adoption applies. “The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) The emotional attachment between the child and the parent must be that of parent and child rather than one of a friendly visitor or friendly nonparent relative. (Id. at p. 468.)
It is at once apparent that the offer of proof fell far short of pointing to evidence that would suggest that the parent-child beneficial exception could be invoked by Lucille. As to age, Victoria is quite young; Victoria has spent virtually her entire life with the prospective adoptive parent to whom she is strongly attached and only her first three months with Lucille; there is not even a suggestion that there is a parent-child bond between Lucille and Victoria, much less an emotional attachment between them; and Victoria’s needs obviously call for a continuation with her current caregiver and prospective adoptive parent.
That visitation had greatly increased since March 2009, as Lucille’s counsel put it, says nothing about any sort of bond between Lucille and Victoria. Because the parent-child beneficial bond exception was invoked, it was surely incumbent on counsel to point at least to some evidence of a parent-child bond or relationship but she did not do so. After all, the linchpin of this exception is that there is, in fact, a parent-child bond that is so vital and important for the child that, rather than ordering an adoption, the court should preserve the natural and dynamic relationship between the parent and the child.
As it was, the trial court was faced with a parent whose past visits with the child were at best desultory (and marred by inappropriate conduct in that she appeared to be under the influence of narcotics) and who showed very little interest in the child, even seeming to prefer her sister Evelia to Victoria. In the offer of proof, counsel simply mentioned no facts from which it could even be inferred that there was a parent-child bond between Lucille and Victoria. On the contrary, the only evidence the court had was that Victoria considered her caregiver her parent, which, given the fact of this case, was on the part of the child a correct conclusion. Because there was no evidence on the vital point on which this exception is predicated, it would have been futile to conduct a hearing about the applicability of the parent-child beneficial relationship exception.
On appeal, appellant contends that she requested a contested hearing “because she hoped to show that her parental rights should not be terminated because her visits with Victoria had created a beneficial relationship that should not be severed.” The flaw in this claim is that there is nothing to indicate that there was ever a “relationship” between Lucille and Victoria. Appellant states that she visited more often than DCFS reported, that her visits were “more beneficial” than DCFS reported, that she was “enrolled in a program,” and that the DCFS report was inaccurate. None of this reflects a relationship, certainly not a parent-child relationship, between Lucille and Victoria. Neither during the hearing on July 20, 2009, nor in this appeal, nor anywhere in the record are there any facts that would suggest, however remotely, that there ever was a parent-child relationship between Lucille and Victoria.
Appellant also contends on appeal that, at a minimum, the court should have granted a continuance because a continuance would have “afforded mother the opportunity to file her new petition under section 388, which would have created a fuller evidentiary record.” But not even at this late date is there a mention of what new facts such a renewed section 388 petition would have averred. Neither trial nor appellate counsel has been able to produce any facts, disputed or not, from which it could be inferred that there was a parent-child relationship between Lucille and Victoria. We must therefore agree with the trial court when it stated, in denying a continuance, that Lucille simply could not meet even the minimal threshold for this exception.
No one can fail to sympathize with a parent whose parental rights are terminated. No matter what the antecedents, it is a wrenching event. But the interests of the child must also be taken into consideration. When, as here, the parent has, over the entire lifespan of the child, shown very little interest in the child, much less an abiding concern for her, the court must act to secure the child’s future. That is especially true when, as is the case here, there is someone on the scene who has shown maternal concern and dedication and who is ready and willing to step into a mother’s role.
2. The Section 388 Petition
“Section 388 permits a parent to petition the court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child’s best interests. [Citation.] A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The ruling on a section 388 petition is “committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Given these ground rules, it must be noted initially that Lucille’s view of her burden in her section 388 petition is not correct. Her brief states: “Mother had never abused Victoria. She was clean and sober when she delivered Victoria, and she was clean and sober when she asked for more time to reunify. There was no evidence that visits with mother caused harm or distress to Victoria.” ~(AOB, pp. 22-23)~
Without intending to slight Lucille, when it comes to the obligations of a parent, the foregoing constitutes the bare minimum. But, for the court to modify the course of the proceedings, the section 388 petitioner must do more than show that minimal standards have been satisfied. The showing must consist of an actual change of circumstances that must be significant enough to warrant a change in direction, and it must be shown that the proposed change is in the child’s best interests. These are dynamic, and not minimalist, requirements.
We cannot agree with Lucille that there have been “many positive changes in her life circumstances” that warranted the section 388 petition. ~(AOB, p. 27)~To begin with, while Lucille has been able from time to time to show improvement, unfortunately she has also shown a proclivity for backsliding into bad habits and behaviors. Her performance has been so uneven that the trial court correctly concluded that reunification services needed to be terminated. While it can only be applauded that she completed drug treatment and was judged not to need further outpatient drug treatment, this is not enough to delay providing Victoria with parents and a permanent home. The mere possibility that there might be further positive changes in the future is not enough. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
Given Lucille’s track record, the trial court did not abuse its discretion in denying the section 388 petition.
DISPOSITION
The orders denying appellant’s section 388 petition and terminating her parental rights under section 366.26 are affirmed.
We concur: RUBIN, Acting P. J., LICHTMAN, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.