Opinion
F062293
08-12-2011
In re S.K. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. STACEY K., Defendant and Appellant.
Elysa J. Perry, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. JD123174, JD123175)
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Detjen, J.
APPEAL from orders of the Superior Court of Kern County. Peter A. Warmerdam, Referee.
Elysa J. Perry, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
Stacey K. (mother) appeals from juvenile court orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her four-year-old son and three-year-old daughter. Mother contends the juvenile court abused its discretion by denying her section 388 request at the termination hearing for an order either returning custody of the children to her or reopening reunification services. She also challenges the juvenile court's rejection of her claim that the children had a beneficial relationship with her, which outweighed the benefit to them of adoption. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
The children were taken into protective custody in January 2010 as a result of domestic violence between mother and the younger child's father. Mother was arrested at the same time for being under the influence of a controlled substance. At the time, both children were under the age of three.
The juvenile court subsequently exercised its dependency jurisdiction over the children because they had suffered or there was a substantial risk they would suffer serious and nonaccidental physical harm due to the abusive conduct of the younger child's father and mother's failure to protect. (§ 300, subd. (b).) Later still, at a dispositional hearing, the juvenile court adjudged the children dependents, removed them from parental custody, and granted mother six months of reunification services.
Mother's reunification services included counseling for parent training, child neglect, failure to protect, domestic violence as a victim, mental health, and substance abuse. In addition, the court ordered mother to submit to random drug and alcohol testing at least once a month. The court further ordered weekly, two-hour visits. Finally, the court advised mother that because the children were under the age of three at the time of their initial removal, her failure to participate regularly and make substantive progress in court-ordered treatment and failure to cooperate or avail herself of services might result in termination of reunification efforts after only six months.
Six months later, mother had failed to participate regularly and make substantive progress in the court-ordered services. In fact, mother made minimal progress toward mitigating the causes for the children's out-of-home care. At most, mother completed a parent training course and regularly visited the children. Meanwhile, she had several positive drug tests and refused to test many times more, with presumptively positive results.
As a consequence, the juvenile court continued the children's out-of-home placement and terminated reunification efforts. It also set a section 366.26 hearing to select and implement a permanent plan for the children.
In preparation for the section 366.26 hearing, respondent Kern County Department of Human Services (department) reported that the children were likely to be adopted by their foster parents and recommended that the juvenile court terminate parental rights. Because it is undisputed that the children are adoptable, we do not summarize the adoptability evidence here.
In its report, the department also discussed mother's visitation with the children. She attended 44 out of 52 possible visits. The children and mother were generally happy to see one another. During the visits, the children played and enjoyed snacks and treats that mother brought. Mother showed the children affection, which they enjoyed and would reciprocate. The children appeared to enjoy the visits as a fun time, but were able to "easily end the visits."
The children showed no emotional attachment to mother as their primary caregiver nor did they look to her for their daily emotional or physical needs. Both children also identified their foster parents as their mommy and daddy. Although the children had a regular visiting relationship with mother, that relationship was not significant enough that they would suffer severe emotional trauma if mother's rights were terminated.
At the section 366.26 hearing, the juvenile court permitted mother to make an oral section 388 request that the court either return the children to her care or order additional reunification services. Mother's attorney made an offer of proof that:
"[M]other is residing at Tabitha's House and is attending substance abuse counseling. She has nine more classes [to complete] her substance abuse counseling. She . . . has completed both parenting training and child neglect and has received a certificate of completion . . . for those two classes. She is also attending both domestic violence and failure to protect counseling . . . [and] has two more classes before she will complete that class as well. . . . She was attending mental health counseling . . . but she was discharged from that program because she no longer needed to attend mental health counseling . . . per her counselor."
The parties accepted the attorney's recitation as mother's testimony if she were called as a witness. No other evidence was introduced. Mother's attorney characterized his offer of proof as evidence of mother's progress. He also relied on the department's report regarding mother's visitation and urged that the children had lived with mother their entire lives prior to their detention. Combined, he argued, the evidence established it would be in the children's best interest to grant the relief mother sought.
The juvenile court denied mother's section 388 request. Based on the totality of the evidence, the court could not find that circumstances had changed or it was in the best interest of the children to be returned to parental custody.
With regard to permanency planning, mother's attorney claimed the department's report on the visits between mother and the children indicated they shared a substantial bond and therefore it would be detrimental to the children's well-being to terminate parental rights. (§ 366.26, subd. (c)(1)(B)(i).)
The juvenile court acknowledged that mother reasonably maintained regular contact with the children and the children were happy to see her. Nevertheless, having found the children likely to be adopted, the juvenile court terminated parental rights.
DISCUSSION
I. The Juvenile Court Did Not Abuse its Discretion by Denying Mother's Section 388 Request.
Mother contends she established there was a genuine change in her circumstances such that it would be in the children's best interests to be returned to her care. Thus, in her view, the juvenile court abused its discretion by denying her section 388 request.
A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (b); Cal. Rules of Court, rule 5.570.)
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 re Stephanie M. (1994) 7 Cal.4th 295, 318.) When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Id. at pp. 318, 319.)
At best, mother's offer of proof revealed that her circumstances were changing (In re Casey D. (1999) 70 Cal.App.4th 38, 49), that is, she had completed a second element of the former reunification plan and was approaching completion of other elements of the plan. Yet, there was no evidence regarding what progress she made toward mitigating the causes for the children's out-of-home care. Also, she presented no evidence that she was drug and alcohol testing with no positive results. Thus, the juvenile court could properly find that mother's circumstances were not changed. (In re Casey D., supra, 70 Cal.App.4th at pp. 48-49.)
Additionally, there was no evidence that returning the children to mother's care or reopening reunification services would be in the children's best interest. To understand the element of best interests in the context of a section 388 motion brought, as in this case, after reunification efforts have failed, we look to the supreme court's decision in In re Stephanie M., supra, 7 Cal.4th 295.
"[A] primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.] 'When custody continues over a significant period, the child's 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.' [Citations.]
"[¶] ... [¶]
"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. [1993] 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interest 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 interest of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Here, there was no evidence that the children's need for permanency and stability would be advanced by a new custody or services order. The fact that mother regularly visited with the children, who were happy to see her, did not compel a best interest determination.
Under these circumstances, we conclude the juvenile court did not abuse its discretion by denying mother's request.
II. The Juvenile Court Did Not Abuse its Discretion by Terminating Parental Rights.
Mother also argues there was no substantial evidence to support the juvenile court's rejection of her argument that termination would be detrimental to the children because they would benefit from a continuing relationship with her. (§ 366.26, subd. (c)(1)(B)(i).) We disagree for multiple reasons.
To begin with, mother argues an incorrect standard of review. Once a dependency case reaches the permanency planning stage, the statutory presumption is that termination is in an adoptable child's best interests and, therefore, not detrimental. (§ 366.26, subd. (b) ; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) Consequently, it is the parent's burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We do not review the juvenile court's decision for substantial evidence to prove a negative, which is, termination would not be detrimental.
Second, the beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), involves a two-part test; did the parent maintain regular visitation and contact with the children, and would the children benefit from continuing the relationship.
For the beneficial relationship exception to apply,
"[T]he parent-child relationship [must] 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 parent's rights are not terminated.' (Id. at p. 575.)" (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
Based on our review of the record, we conclude the juvenile court properly exercised its discretion in rejecting mother's argument. At most, the record revealed mother maintained regular visits with the children and the children enjoyed those visits. However, mother had to demonstrate more than this to compel a finding that termination would be detrimental to the children. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954 [A parent must demonstrate more than pleasant visits or loving contact for the court to find detriment.].) There was no evidence that the children had such a substantial, positive emotional attachment to mother that the children would be greatly harmed if mother's rights were terminated. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) In addition, there was the department's evidence for the juvenile court to consider. According to the department, the children showed no emotional attachment to mother as their primary caregiver nor did they look to her for their daily emotional or physical needs. Also, both children identified their foster parents as their mommy and daddy.
Finally, to conclude there was an abuse of discretion, the proof offered must be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Such was not the case here.
DISPOSITION
The orders denying mother's section 388 request and terminating parental rights are affirmed.