Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J219346 Marsha Slough, Judge, and Stephanie Thorton-Harris, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Sahyeh S. Fattahi, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and P. Joanne Fenton and Adam Ebright, Deputy County Counsel, for Plaintiff and Respondent.
Neil R. Trop, under appointment by the Court of Appeal, for Minor.
OPINION
King, J.
Appellant S.S. (Mother) appeals from an order terminating her parental rights with respect to her son, W.K., pursuant to section 366.26 of the Welfare and Institutions Code. She contends that the court erred in denying her petition to change a prior court order pursuant to section 388 and that the subsequent termination of her parental rights must therefore be set aside. The San Bernardino County Department of Children’s Services (DCS) disputes these contentions. Because the court did not abuse its discretion in denying Mother’s section 388 petition, we affirm the court’s orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Appellate counsel for W.K. filed a letter brief noting that W.K.’s trial counsel “favored the outcome at the trial court level” and that his own “investigation reveals no circumstance which would justify variance from trial counsel’s position.”
I. SUMMARY OF FACTS AND PROCEDURAL HISTORY
When W.K. was born in November 2007, he tested positive for methamphetamine and marijuana. He weighed 7 pounds 10 ounces. Two months later, on January 17, 2008, a DCS social worker and Barstow police responded to a report that mother was abusing drugs and that the family home did not have gas or heat. The social worker perceived mother to be “using methamphetamine regularly based on the numerous ulcerated lesions on her limbs[.]” According to the social worker, W.K. was “extremely emaciated and appeared to be fail[ing] to thrive.” He was removed from the home and taken to the hospital. At that time he weighed 7 pounds.04 ounces.
Mother admitted to using methamphetamine and marijuana within the week preceding W.K.’s removal. Both Mother and W.K.’s father tested positive for methamphetamine; Mother also tested positive for marijuana.
W.K. was diagnosed as suffering “from failure to thrive due to neglect and not being given sufficient food intake.” His “condition was not due to any medical problems.” He also had a “buckle fracture along the right distal ulna,” which a physician stated is a “type of fracture [that] commonly occurs in children this age from [the] child’s arm being jerked.” The doctor concluded that W.K. “is a victim of child abuse and neglect.” A subsequent forensic report indicated W.K. suffered from “inadequate caloric intake and starvation.” There was also evidence of delayed brain maturation due in part to starvation and intrauterine drug exposure.
Both parents were arrested and convicted of child endangerment under Penal Code section 273a, subdivision (a). Father was sentenced to two years in prison. Mother was sentenced to 270 days in jail. She was also ordered to complete the “Inroads program” while in custody.
Penal Code section 273a, subdivision (a), provides: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.”
On January 22, 2008, DCS filed a petition under section 300, subdivision (b). DCS alleged: W.K. was diagnosed with failure to thrive due to the parents’ failure to adequately care for him; Mother has a history of extensive abusive and chronic use of drugs or alcohol and has resisted prior treatment for the problem in the three immediately preceding years and has refused to comply with a drug or alcohol treatment programs on at least two occasions; and the parents’ substance abuse has resulted in their severe neglect of W.K.
Section 300, subdivision (b), provides in part: “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance abuse.”
W.K. gained a significant amount of weight during his stay in the hospital. He was released from the hospital on February 1, 2008, and placed with foster parents.
In a meeting with the social worker shortly after the detention of W.K., Mother said that she knows that she needs help and is willing to undergo inpatient treatment. She asked to be put in drug court and given a chance to reunify with W.K.
In a jurisdictional/dispositional report, the social worker reported: “Both parents suffer from extensive and chronic substance abuse. Mother has a long history with [DCS] in which she has lost three (3) other children. Mother failed to reunify as she remained uncooperative in each of her prior cases. Mother has not benefited for years from services provided.... Both parents have extensive criminal histories consistent with a drug abusing lifestyle.” DCS recommended that the court not provide family reunification services to the parents. In support of this, the social worker stated that Mother has “previously been convicted of child abuse/neglect and has obviously not changed her lifestyle. It is the opinion of the [undersigned social worker] that the child should not ever be returned to the parents and [family reunification] [s]ervices need not be offered.... Given the severity of the abuse inflicted upon this young and fragile child and parents[’] histories, even if parents were offered and completed services, it is unlikely that anyone would recommend reunification. Neither parent has benefited from any services that they were provided in the past.”
At a jurisdictional/dispositional hearing, the court found the allegations of the petition true and declared W.K. a dependent of the court. The court ordered that the parents not receive family reunification services on the ground, among others, that Mother “has a history of extensive abuse and chronic use of drugs.” The court further ordered visitation between Mother and W.K. once per month after Mother’s release from custody. The court set a hearing to be held pursuant to section 366.26.
The jurisdictional/dispositional hearing was continued several times. At the date set for the initial hearing, an attorney representing a private adoption agency appeared and informed the court that Mother wished to place W.K. with the agency for adoption. The court continued the hearing to allow time to process the possible relinquishment of parental rights. Mother filed documents to relinquish and surrender W.K. for adoption; however, the court subsequently voided the relinquishment.
Meanwhile, W.K. was happy, thriving, and bonding with his foster parents, who desired to adopt him.
Mother was released from jail on July 13, 2008. Thereafter, she lived at an inpatient rehabilitation program. Mother visited with W.K. on August 4, 2008, after which the social worker reported: “After the child returned home from the visit with [M]other he threw himself down on the floor and had a temper tantrum, a first for him, and then was grumpy and grouchy the rest of the day. This was very uncharacteristic behavior for [W.K.].”
After the second and third visits, in September and October, the social worker reported that W.K. “is, at best, disinterested / detached during the visits. [W.K.] does not demonstrate any recognition of his [M]other [or] recognize her as someone he had met from one visit to another. [¶] [W.K.] reacts negatively to the visits, once he is back with the caregiver. He will have tantrums, which includes screaming and throwing himself on the floor. His sleep pattern is also disrupted, waking every two (2) or three (3) hours. It will take [W.K.] approximately one (1) day to recover to his normal self.” The social worker opined that “[f]uture visits with [M]other would not be appropriate as the current visits are detrimental....”
After a fourth visit, in November 2008, the social worker again reported that W.K. “is, at best, disinterested / detached during the visits.”
In an adoption assessment report, a social worker reported that W.K. “seems to be a happy, well adjusted baby. He has been an extraordinarily happy and easy going infant throughout the undersigned’s association with the case.” Regarding the relationship between W.K. and his prospective adoptive parents, the social worker reported: “Since being placed in the home, the child has developed a significant emotional bond with the prospective adoptive parents. Although the child is preverbal and cannot tell the undersigned about his wishes regarding adoption, it is clear from the child’s actions that [W.K.] views the prospective adoptive parents as his parental figures. The parents and child seem to enjoy being physically close, affectionate with each other and at ease together. The relationship between [W.K.] and the prospective adoptive parents is that of parents and son in every way.”
On November 14, 2008, Mother filed a form JV-180 (Request to Change Court Order) pursuant to section 388. Mother sought reunification services and to have W.K. placed with her at her sober living facility under a plan of family maintenance. In the petition, she asserts that she has been released from custody and is participating in and will complete programs in substance abuse, parenting, anger management, and relapse prevention. She is also participating in Alcoholics Anonymous and Narcotics Anonymous. She further states that the changes she was requesting would be better for W.K. because: “I love my son and can provide him with a safe and loving home. I have completed a substance abuse program and am turning my life around.” The petition is supported with documents evidencing Mother’s participation in and completion of numerous programs.
DCS responded to the section 388 petition in an “Interim Review Report.” According to the social workers, even if Mother is turning her life around, “she has not demonstrated any ongoing, consistent, positive behavior that would indicate that she has turned her life around. [Mother] has an extensive substance abuse and child welfare history. [She] has previously demonstrated that she is not able to maintain her sobriety over an extensive period of time, nor [sic] be able to participate actively and consistently in [family reunification] services.” The social workers described Mother’s contact with W.K. as “very limited,” and explained how W.K. did not recognize Mother during visits and responded with “problematic behavior.” In light of this and the bond that had developed with the prospective adoptive parents, the social workers concluded that it “would be detrimental to [W.K.]’s physical and emotional well being to move him from his current home or consider any other course of action, other than adoption.”
At the hearing on the section 388 petition, the court acknowledged Mother’s progress and encouraged her “to continue on her path.” However, after considering the reports and the argument of counsel, the court denied the petition.
At the section 366.26 hearing, the court declared that W.K. was likely to be adopted and terminated the parents’ parental rights. Mother appealed.
II. ANALYSIS
A. Section 388 Petition
A parent may petition the juvenile court to change, modify, or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition must state why the requested relief is “in the best interest of the dependent child.” (Id., subd. (b).) The moving party parent bears the burden of proving both prongs by a preponderance of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
“After termination of services, the focus shifts from the parent’s custodial interest to the child’s need for permanency and stability. [Citation.] ‘Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.’ [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.) In reviewing the juvenile court’s determination, we will infer a necessary finding if the implicit finding is supported by substantial evidence. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260.)
The court in this case did not abuse its discretion in denying Mother’s section 388 petition. The evidence supporting the petition establishes that Mother had completed or was participating in numerous parenting and substance abuse courses. The court appropriately commended Mother for her success and progress. However, in addition to the evidence of neglect and abuse of W.K. that prompted the initiation of this case, the court had evidence of Mother’s extensive history of substance abuse, criminal convictions, and failures to reunify with her other children. In light of this evidence, the court could reasonably conclude that her recent accomplishments were insufficient to justify delaying a permanent plan for W.K.
Even if there was sufficient evidence to establish the requisite changed circumstances, Mother presented no substantial evidence that the requested change was in W.K.’s best interest. (Indeed, at the hearing on her petition, her counsel did not offer any argument regarding this requirement.) During the two months between his birth and removal from the parents’ custody in January 2008, W.K. was neglected and abused. Thereafter, Mother had no contact with W.K. until August 2008 due to her incarceration. Following her release in July 2008, she had 4 one-hour visits with W.K. During the visits, W.K. did not recognize Mother as someone he had met before and was, “at best, disinterested / detached.” Indeed, he reportedly reacted “negatively to the visits,” throwing tantrums and having difficulty sleeping. Meanwhile, W.K. thrived in his new home and had “clearly and unequivocally bonded to his current caregivers.” According to the social workers, he “has grown into a healthy (except for his low white blood cell count), active, happy, and thriving child.” They concluded that it “would be detrimental to [W.K.]’s physical and emotional well being to move him from his current home or consider any other course of action, other than adoption.”
Mother refers us to her testimony given at the section 366.26 hearing. She testified that the visits “are wonderful. We interact, I read to him, I feed him, I change his diapers. He lays in my arms and we cuddle, we talk, we run around.” She further testified that W.K. is not afraid of her, that he recognizes her, and “he bonds with [her].” Initially, we note that this testimony was given at the section 366.26 hearing—after the court had ruled on the section 388 petition. However, even if the court had such testimony before it when it ruled on the section 388 petition, the contrary evidence set forth in the social worker’s reports provides sufficient evidence to support the court’s ruling.
Because there was substantial evidence to support the court’s implied finding that the requested change would not be in W.K.’s best interest, the court did not abuse its discretion in denying the section 388 petition.
B. Termination of Parental Rights
Mother contends that the order terminating her parental rights must be reversed because of the court’s alleged error in denying her section 388 petition. Because we find no error in the denial of her section 388 petition, we reject her challenge to the order terminating parental rights.
III. DISPOSITION
The orders appealed from are affirmed.
We concur: Ramirez, P.J., Gaut, J.
The petition also alleged that W.K. had been physically abused while in the parents’ care for purposes of section 300, subdivision (e). This allegation was subsequently dismissed.