Opinion
B234096
01-12-2012
In re A.I., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JENNIFER A., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK78708)
APPEAL from orders of the Superior Court of Los Angeles County, Stanley Genser, Commissioner. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
Jennifer A. appeals from the juvenile court's order summarily denying her petition for modification pursuant to Welfare and Institutions Code section 388. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Events leading to the children's detention and removal
Jennifer A. (mother) is the mother of A.I. (born May 1999) and his younger sister, D.I. (born March 2003). The children's father has never been very involved in their lives and is not a party to this appeal. Respondent Department of Children and Family Services (DCFS) received a referral regarding general neglect for the family in August 2009. The record reveals what everyone in the family generally characterized as a history of chaotic, dysfunctional relationships.
Mother has always relied heavily on the maternal grandparents' (grandparents) support, both financially and as caretakers, to raise A.I. and D.I. A.I. lived with his grandparents until he was about eight years old, then returned to mother's care for about two years. D.I. lived with her mother most of her life. When DCFS intervened, mother was homeless and staying with D.I. in the maid's quarters in the grandparents' home. The event precipitating DCFS intervention occurred in mid-August 2009. During an argument, mother pushed grandmother into a rusted toy box causing serious injuries to grandmother's forehead. D.I., who was present, became afraid and called the police.
In its detention report, DCFS noted that A.I. described his mother as "really crazy," a sociopath, and "the worst mother a kid could have." He said that she smoked marijuana and he had seen needles in the garage, that she had broken a window in the grandparents' house and put her daughter through it for no reason, and that she often tried to taunt grandfather into hitting her. He also said mother once threw a cell phone at his stomach, hurting him, and that she screamed a lot and had tried to shove food down his throat in the past when he wouldn't eat. A.I. said his grandmother got drunk, stayed in bed all day and was depressed six days per week.
D.I. told the DCFS social worker that her grandmother was often "really drunk," and that she and mother yelled and screamed at each other a lot. She said her brother hated her, and that her grandparents were turning A.I. against her. In addition to the toy box incident, D.I. had seen mother push grandmother into a planter. She got scared in her grandparents' home when her mother was about to hurt her grandmother. She said mother used time-outs to discipline her. D.I. also told DCFS mother had physically forced her to finish uneaten food, and that mother had tried to suffocate her with blankets when she was four years old. Both children said their father hit them with belts during visits.
Grandmother told DCFS that she and her daughter mixed "like oil and water," and fought about anything and everything. Grandmother did not believe mother was doing drugs, but she had found syringes in the garage. Grandfather said he had paid mother's living expenses for the past 10 years, including rent, food, car and health insurance, and had provided nanny and maid services and leased a Range Rover for her. He had also supported four of mother's five boyfriends. Mother's most recent live-in boyfriend was a drug dealer and grandmother found syringes in the garage in July 2009. Mother had allowed heroin addicts to live in the guest house of the house grandfather rented for her. She and the children were evicted in April 2009 and moved into the grandparents' house. Grandfather said grandmother had a drinking problem and drank as much as a bottle of wine per night, and that she and mother frequently engaged in heated arguments. He said A.I. had always had his own room in the grandparents' home because he had lived with them for eight years. Mother and D.I. were currently living in the maid's quarters. Grandfather described the household as chaotic. He had been asking mother to move out since early August 2009; she refused to go.
Mother had worked as a hospital admissions representative until she became unemployed due to disability.
In late August 2009, mother and grandfather argued over mother's hair cut. D.I. attempted to intervene and grandmother, who had admittedly been drinking, hit D.I. on the wrist. D.I. saw mother push grandmother into a rusted toy box causing an injury which required numerous stitches. D.I. called the police who summoned DCFS. Grandmother said she and mother fought over a stupid thing, and attributed mother's problems to receiving no money for child support. Mother insisted that grandmother's alcohol consumption triggered their fights, but admitted that she used "speed" five months earlier.
A petition, filed under section 300, subdivisions (a), (b), (g), and (j), was filed August 27, 2009, the same day the detention hearing was held. In pertinent part the petition alleged that mother physically abused the children, had a history of substance abuse, had forced D.I. to enter her grandparents' home through a broken window, and had allowed an acquaintance to use heroin in her home. The petition also alleged that grandmother physically abused D.I., abused alcohol and, together with mother, exposed the children to violent confrontations in the home. The children were detained and released to grandfather's care in early September after grandmother agreed to move out of the house and enter an inpatient alcohol treatment program. Mother, who had vacated the grandparents' home and whose whereabouts were unknown, was given monitored visits in a neutral location.
Mother made her first court appearance on September 2, 2009. On September 11, 2009, mother tested clean for drugs. But, a week later, mother was arrested for suspicion of being under the influence of an illegal substance. At the time of her arrest mother told a police officer she had smoked '""meth.'""
Jurisdiction and disposition
DCFS submitted a jurisdictional/dispositional report in early October 2009. According to that report, A.I. said mother had "bad anger issues," hit him a lot and had thrown a cell phone at him once when he called his grandfather. D.I. corroborated A.I.'s reports of having been hit by mother. She also said mother had shoved food down her throat to get her to finish the food on her plate, and tried once to suffocate her with blankets. Mother told DCFS she did not do drugs and had not known drugs were being used in her home. Grandfather told DCFS he had spent about $600,000 to support mother and the children over the past 10 years. DCFS scheduled hourly visits for mother with the children twice weekly, but she did not maintain contact with DCFS or visit the children.
Mother did not appear for the contested jurisdictional hearing on November 9, 2009. DCFS reported that she had not maintained contact with DCFS, and had missed two drug tests and three counseling appointments. DCFS reported that A.I., who had lived with his grandparents since he was one year old, was doing well. D.I., who had moved in six months earlier, was having a harder time adjusting and was depressed that her grandmother had moved out. The juvenile court sustained an amended petition. As to mother, the court found she had physically abused A.I., had forced D.I. to enter through a broken window, had a history of substance abuse with no evidence of treatment and, together with grandmother, exposed the children to violent confrontations. (§ 300, subds. (a), (b).) DCFS was given discretion to allow the grandmother to return home.
On December 8, 2009, the juvenile court removed the children from mother's care, and ordered reunification services. Mother was ordered to participate in a drug counseling program with testing, parenting education, individual counseling to address the issues which gave rise to this action. The court ordered joint counseling for mother and the children, in the event "mother decides that she wants to seriously try to reunify." Mother was given monitored visits and the DCFS was granted the discretion to liberalize her visitation. The grandmother was reportedly complying with her alcohol treatment program and the court permitted her to return home, so long as she maintained sobriety.
The reunification period
Mother did not participate in reunification services, did not maintain contact with DCFS and did not visit or try to contact the children for about eight months following their detention. On April 6, 2010, DCFS learned that mother, then three months pregnant, had enrolled in the "Tarzana" drug counseling program. Mother told DCFS her pregnancy had been a "'huge wake up call for [her],'" and said she was "'willing to do whatever it takes to reunify with her children.'" Mother was briefly hospitalized for stomach pains and temporarily discharged on April 15, 2010 from the treatment program because she had been prescribed drugs in the hospital. She reenrolled two days later, but was reportedly ready to leave the program again within a week. Mother had been a "no show" for five drug tests. Mother called DCFS again on April 23, 2010 and said she "'really need[ed] to see [her] kids'" and would "'do anything to get them back.'"
The grandparents' and the children's therapists told DCFS they believed it would be detrimental for A.I. and D.I. to see their mother. The children had been progressing well in the grandparents' care. D.I., who had displayed confusion and anger at first, had adjusted well and, like her brother, was thriving in her grandparents' care and progressing in therapy. She told DCFS she was "'really[,] really loving [grandparents'] place,'" wanted to stay there "'for really long'" and wanted her grandparents to be her grandparents and her parents. A.I. told DCFS he wanted to be adopted. Neither child wanted to see mother. The grandparents told DCFS they wanted to adopt the children and a home study was initiated in April 2010. In April 2010, A.I.'s therapist said A.I. no longer needed counseling and his case would be closed.
At the six-month review hearing on May 4, 2010, the children's attorney informed the juvenile court that both children said they wanted to visit their mother. A.I. wanted to visit his mother two or three times a week, and specifically requested a visit with her for his upcoming birthday. The grandparents reported that, after one hearing, D.I. ran crying to her mother outside the courtroom. A.I. also made his way over to mother. It was a positive interaction for everyone. The juvenile court found that mother had not complied with her case plan but ordered an additional period of reunification services. The court ordered a birthday visit for A.I., so long as mother's treatment program allowed visits, and also ordered "reasonable monitored visits as frequently as can be arranged so long as it does not interfere with the children's school." The court rejected DCFS's request that visits be ordered only after consultation with the children's therapists, but noted DCFS was free to file a modification petition (§ 385) if it had evidence that visits would be detrimental to the children. The grandparents promised to "try" to bring D.I. to visit mother "once a month[,] or so." In May 2010, A.I. said he "'absolutely'" did not want a birthday visit with his mother. D.I. still wanted to see mother.
Mother miscarried in June 2010. That month D.I. began visiting mother at DCFS's office, but A.I. remained resolute in his refusal to see mother. During their first visit, D.I. was "ecstatic" to see her mother, and kissed and hugged her. She gave mother pictures she had drawn, told her she loved her and announced she would see mother every week and would talk to her on the phone. Mother and D.I. visited several times during the second review period. D.I. always seemed very happy to see mother and was affectionate with her. Several visits were disrupted by tearful arguments between mother and grandmother. Others were canceled due to "'lockdowns'" at mother's treatment facility. In mid-June, D.I. told DCFS she wanted to be with her mom and did not want to be adopted. Although D.I.'s therapist told DCFS that D.I. did "'well'" with her visits with mother, the grandparents reported that some of D.I.'s negative behaviors had returned after mother's visitation began. A.I. did not see his mother for a birthday visit, and told the social worker he did not care. DCFS asked A.I. repeatedly if he wanted to see his mother; his answer was always "no."
While at Tarzana, mother tested clean for drugs, participated in individual and group classes, obtained a sponsor and built a sober support group. Mother was discharged from the program in mid-August 2010 for engaging in sexual behavior with another patient.
The 12-month review hearing
A contested 12-month review hearing was conducted in early October 2010. DCFS recommended termination of reunification services. Mother requested the provision of additional services, based on her progress in the Tarzana program and the positive relationship she shared with D.I. The juvenile court found no evidence mother had tried to participate in court-ordered services since her discharge from Tarzana, and rejected mother's request. Reunification services were terminated and the court scheduled an implementation and selection hearing (§ 366.26) for February 2011. Monitored visitation was continued.
The postreunification period
In November 2010, the grandparents told DCFS that mother had not been around in a few weeks, but said the children did not want to see their mother anyway. At one point, D.I. asked the social worker if her mother was dead. In January 2011, the grandmother still had not heard from mother.
The section 366.26 hearing, originally scheduled for early February 2011, was continued to May 2011 due to a problem with the notice to the children's father. In its February 2, 2011 report for the originally scheduled hearing, DCFS noted mother had not contacted DCFS or the children since October 6, 2010 and her whereabouts remained unknown. DCFS reported that the children continued to thrive in their grandparents' care, and that D.I. had "stabilized" having now lived with the grandparents for two years. A.I., who lived with his grandparents most of his life, considered them his parents.
In February 2011, mother, who was pregnant again, enrolled in another inpatient drug treatment program. On February 8, 2011 she contacted DCFS and said she was willing to do whatever was needed to get her kids back. When asked where she had been the last several months mother told DCFS she had relapsed.
On February 14, 2011, mother told DCFS she wanted to visit D.I. even if A.I. did not want to see her. The social worker spoke with D.I.'s therapist, who opined that it would be detrimental for D.I. to visit mother. The grandparents told DCFS they planned to move to Carmel, California in June with the children. They were anxious to start the adoption process and move before the next school year.
In March 2011, D.I told DCFS she never wanted to see mother again. She said she hated her mother who had ruined her life, her brother's life and her grandparents' lives. On March 31, 2011, mother asked DCFS about visiting her children. The social worker said she would talk to the children and grandmother about visits the next week.
In connection with a postpermanent plan review hearing conducted on April 6, 2011, DCFS reported that there had been no visits between mother and the children during the past supervision period, and said the children were happy living with their grandparents and wanted to stay with them and be adopted. Mother might be expected to complete her treatment program in August 2011.
At the hearing on April 6, 2011, mother's counsel informed the juvenile court mother wanted to reestablish regular visits with her children. She requested that DCFS be ordered to help "structure visitation." The court ordered DCFS to "assist . . . mother in setting up a visitation schedule in consultation with the [grandparents]." Mother called DCFS on April 7, 2011 and said she was "'anxious to see [her] kids again.'" A few days later the social worker spoke with A.I. and D.I., neither of whom wished to see their mother. On April 11, 2011, mother contacted DCFS again about visits, and reminded the social worker the court had ordered that visits occur. The next day the social worker told mother the children did not want to see her and said "DCFS [did] not force children to see their parents if they [were] adamantly opposed to it." Mother responded that "'[i]t shouldn't be up to [the children] . . . I need[ ] to see them.'"
DCFS scheduled a visit for April 21, 2011. Mother showed up at DCFS's office on April 21; the children did not. When the social worker asked mother why she had not seen the children since October 2010, mother said she had "'been in rehab and working on [her]self.'" The grandmother told DCFS A.I. refused to get in the car to go to the April 21 visit because he did not "'want to see [his] mom,'" and D.I. refused to go without her brother. DCFS was unable to reschedule the visit to early May 2011 because the grandmother was sick and unable to transport the children. The grandfather also told DCFS the children did not want to see their mother. On several occasions during visits by the social worker, A.I. and D.I. each anticipated her question regarding visitation. A.I. consistently said he had not changed his mind, did not want to see his mother and could not "'wait until [the section 366.26 hearing] when all this will be over.'" D.I. said, she definitely had not changed her mind and did not want to see her "'ex-mother.'" She just "'want[ed] to be with [her grandparents] and move to Carmel.'" In May 2011 mother offered to relinquish the baby she was carrying if the grandparents would agree to give the kids back.
Mother's section 388 petition
On May 2, 2011, mother filed a petition to modify a prior court order. (§ 388.) She requested additional family reunification services and counseling because her "children deserve an opportunity to have a relationship with their biological mother." In a declaration attached to the petition, mother said she had not seen her children since September or October 2010, and had consistently asked DCFS to set up visits. She also said she left at least five messages for her children and had written letters, which she believed the grandparents intercepted. Mother provided letters showing she was complying with her treatment program and testing clean. The court denied the section 388 petition without an evidentiary hearing. It found mother had not shown the requested modification was in the children's best interest.
The section 366.26 hearing
A contested section 366.26 hearing was held on June 1, 2011. A.I., now 12 years old, and D.I., now eight years old, both testified in camera. A.I. confirmed that he did not want to see his mother. He explained that he "just [didn't] forgive her for everything she's done from drugs to all that stuff." He said it was his decision not to see his mother. D.I. testified that she did not want to see her mother because, "she's done a lot of bad things in the past . . . ." As examples, D.I. referred to the incident during which mother tried to suffocate her, and mentioned the bloody incident during which mother caused grandmother to cut her head on the toy box. D.I. denied that anyone had told her not to visit mother. DCFS and the children's counsel requested termination of parental rights.
At the conclusion of the hearing the juvenile court found, by clear and convincing evidence, that the children were adoptable. It also rejected mother's assertions that the children's testimony was coached, and that DCFS's failure to set up visitation limited her ability to establish an affirmative defense to termination of parental rights. The court found mother failed to establish an exception and terminated parental rights. This appeal followed.
DISCUSSION
Mother contends the juvenile court erred in summarily denying her section 388 petition. Relying on the decision in In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.), mother argues the juvenile court failed to protect her right to visit her children and failed to rectify that error when it refused to grant her section 388 petition. We disagree.
In Hunter S., a juvenile court ordered reunification services for a mother and her five-year-old son, removed from his mother's care in February 2002. (142 Cal.App.4th at p. 1500.) The child was returned to his mother for a short time in May 2002, but placed with his maternal grandmother in June 2002 after his mother was incarcerated. (Id. at p. 1501.) During the period the child was in his maternal grandmother's care he and his mother maintained the indisputably "'loving [and] close relationship'" they had always shared. In November 2002 the child was placed in his paternal grandmother's care. The mother participated in services both while she was incarcerated and after she was released to a rehabilitation center in July 2003, where she was required to stay for one year. (Ibid.) While at the rehabilitation center, the mother spoke to Hunter a few times on the phone and wrote him letters, but he began refusing to take her calls. (Ibid.) He told his therapist he was angry at his mother for breaking promises and lying. (Ibid.) The mother's reunification services were terminated in July 2003. (Ibid.) The juvenile court ordered DCFS to set up postreunification visits for the mother as could be arranged through her program. But the child continued to refuse to speak to or visit with his mother despite efforts to get him to do so by DCFS, his paternal relatives and his therapist. (Ibid.) The mother, who remained sober and employed, persevered in her efforts to visit or enter joint counseling with her son, who continued to refuse almost all contact with her. (Id. at p. 1502.)
In April 2004, the mother's attorney informed the juvenile court that mother had not seen her son in 17 months and requested visits in a therapeutic setting. (Hunter S., supra, 142 Cal.App.4th at p. 1502.) The court acknowledged that it had a visitation order in place, but said that, "as 'a practical matter we're certainly not going to force a child who is just absolutely refusing to visit.'" (Ibid.) The mother persistently tried to obtain visitation for the next 13 months. Her requests for assistance from DCFS and the juvenile court in that endeavor were ignored. (Id. at p. 1503.)
One month before the section 366.26 hearing, the mother filed a section 388 petition, requesting reinstatement of reunification services. (Hunter S., supra, 142 Cal.App.4th at p. 1503.) The juvenile court found it would not be in the child's best interests to grant the petition. (Id. at pp. 1503-1504.) The court conceded that the mother had demonstrated a substantial change of circumstances, but said it was, "'unrealistic to believe that after one visit Hunter [would] melt into the arms of his mother,'" and terminated parental rights. (Id. at pp. 1503-1504, 1507.)
The Court of Appeal reversed. (Hunter S., supra, 142 Cal.App.4th at p. 1509.) It found the juvenile court had improperly delegated its authority over whether visitation should occur. (Id. at pp. 1504-1505.) Although the juvenile court never made a finding that visitation would be detrimental and ordered visitation "'as can be arranged,'" Hunter was given virtually complete discretion to veto visitation and deny any contact from his mother. (Id. at p. 1505.) The court found that the juvenile court failed to enforce its postreunification visitation order. (Id. at p. 1508.) The lack of contact and visitation prevented the mother from asserting the beneficial relationship exception—her only possible defense to termination of parental rights—at the section 366.26 hearing. (Id. at p. 1504.) The court also found the juvenile court abused its discretion in denying the section 388 petition because granting the mother's request might have corrected the visitation problem. (Id. at pp. 1506-1508.) Hunter S. rejected the juvenile court's view that the child's negative feelings toward his mother showed that granting the petition was not in his best interests. The juvenile court's failure to enforce its postreunification visitation order for over two years effectively denied the mother any chance of reestablishing the previously close relationship with her son. (Id. at p. 1507.) The juvenile court's failure to ensure that visitation occurred and its additional failure to correct that error by granting the section 388 petition, made termination of parental rights a foregone conclusion. (Id. at p. 1508.)
Here, mother insists Hunter S. mandates reversal because the juvenile court: (1) improperly delegated its authority over whether visits should occur, (2) failed to enforce its postreunification visitation order, and (3) failed to correct the problem when it summarily denied the section 388 petition. As a result, mother argues she was denied any postreunification opportunity to repair her relationship with her children or to establish a defense at the section 366.26 hearing. Only mother's first two points have merit.
"If, as here, the court grants visitation, 'it must also ensure that at least some visitation at a minimum level determined by the court itself, will in fact occur.' [Citation.]" (Hunter S., supra, 142 Cal.App.4th at p. 1505.) Here, as in Hunter S., the court made no finding of detriment and repeatedly continued its order granting mother monitored visitation during the period following termination of reunification services "as frequently as can be arranged." As in Hunter S., that grant of visitation was illusory. The absence of visitation was a consequence of a lack of effort by DCFS to carry out the court's mandate, and its relinquishment of control to the grandparents and, in turn, to the children themselves who were given complete discretion to veto visitation with their mother. "This was clearly improper. The juvenile court cannot impermissibly delegate to . . . any third person, unlimited discretion to determine whether visitation is to occur. [Citation.] In no case may a child be allowed to control whether visitation occurs. [Citations.]" (Ibid.) The court's delegation of authority and failure to enforce the visitation order was error. (Ibid.; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138 ["visitation may not be dictated solely by the child involved"].)
Although the court erred by delegating visitation after mother resurfaced in February 2011, we are convinced its error was harmless. Mother has not shown it reasonably probable the result would have been more favorable to her had the visitation order been enforced. (In re Celine R. (2003) 31 Cal.4th 45, 59-60.) She claims she was denied the opportunity to establish the beneficial relationship exception to termination of parental rights, which requires the parent to have maintained regular visitation. (§ 366.26, subd. (c)(1)(B)(i).) We are convinced mother cannot meet the requirements of the exception, regardless of the lack of visitation.
We are concerned here only with the period following termination of reunification services. The lack of visitation for most of the period prior to termination of reunification services was due to mother's frequent and extended absences, not any failing on the part of the juvenile court or DCFS.
The exception requires the parent to show not only that she maintained regular visitation and contact with the child, but also that the child would benefit from continuing the relationship. To satisfy this exception to the statutory preference for adoption, "[a] parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. [1999] 73 Cal.App.4th 823, 827.) 'Interaction between natural parent and child will always confer some incidental benefit to the child. . . .'" (In re Mary G. (2007) 151 Cal.App.4th 184, 207.) "The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]" (Ibid.) "The juvenile court may reject the parent's claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The parent does not shoulder his or her burden by showing that the child would receive some incidental benefit from a continued relationship with the parent. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Rather, the 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. (Ibid.) Section 388 provides for modification of prior juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the child's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The modification procedure is an "'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before . . . termination of parental rights." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
"In order to proceed by way of a full hearing on a section 388 petition, the petitioner must make a prima facie showing of a change of circumstances and that the proposed change of order is in the best interest of the child. [Citation.] The petition should be liberally construed in favor of its sufficiency. [Citation.] A summary denial of a section 388 petition is reviewed for abuse of discretion. [Citation.]" (In re D.R. (2007) 155 Cal.App.4th 480, 487.)
Mother's petition sought reinstatement of reunification services, including counseling. As for changed circumstances, mother declared that she was participating in an inpatient treatment program and testing clean, had consistently requested visitation to no avail, and had tried repeatedly to contact her children by phone and mail. She asserted that the proposed modification would be better for the children because she was "clean and sober and in treatment[, and her] children deserve[d] an opportunity to have a relationship with their biological mother." The juvenile court denied the petition outright on the grounds that the proposed change did "not promote the best interest of the child[ren]." That was not an improper ruling.
Even a liberal construction of mother's section 388 petition shows she failed to make a prima facie showing of changed circumstances or explain why a change in the court's orders would be in her children's best interest. Her terse petition offers little or no illumination on either point. "If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) Allegations of changing, rather than changed, circumstances are not sufficient to warrant a hearing. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) Moreover, "the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.)
Factors which inform the juvenile court's decision when evaluating a modification petition and our review of that decision, are: "(1) [T]he seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) 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.]" (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Here, the seriousness of the problems leading to the children's dependency status is not in dispute. Although mother's petition alleged she was clean and sober, her march toward sobriety in its nascent stages (mother had progressed only to the third step of a program that apparently involved many additional programmatic levels). Mother had unsuccessfully attempted to maintain sobriety in the past, and it was simply too soon to tell whether she would succeed this time. Moreover, the petition failed completely to address mother's anger management issues or the long-standing conflict between mother and grandmother which had resulted in violent altercations in the children's presence, and the physical violence mother inflicted on the children. Indeed, even in her declaration in support of the petition, mother accepted no personal responsibility for the absence of a familial relationship or contact between her and the children. Instead, she blamed the grandparents for interfering with her relationships with and attempts to contact the children.
Nor did mother's petition address the relative strengths of the bonds of A.I. and D.I. to mother and their attachment to their grandparents and prospective adoptive parents. A.I., at least, has almost never lived with mother and throughout this action consistently demonstrated an absence of any bond with her. Although D.I. may once have felt close to mother, that bond has receded to the point where, by the time of the section 366.26 hearing, D.I. referred to mother as her "ex-mother," blamed her for ruining the children's and grandparents' lives, and emphatically denied any desire to see her. Both children look to their grandparents for comfort and support. A mere biological relationship, without more, is insufficient to outweigh the strength of the bond the children have with the grandparents. The grandparents have consistently demonstrated a loving commitment to the children's well-being and a readiness to provide them a permanent loving home through adoption. Accordingly, we cannot conclude that the dependency court acted arbitrarily or capriciously in refusing to hear the petition.
Moreover, even if the juvenile court had heard mother's petition, we fail to see how she could have obtained a better outcome. Once reunification services have been terminated, parental rights and family reunification are no longer the court's primary concern. Rather, at that point the judicial focus shifts, and the best interest of the child, particularly the child's need for a permanent and stable home, becomes paramount. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) It is unclear how mother ever could show that visitation with a mother D.I. has rarely seen since summer 2009, and whom A.I. has not seen at all and no longer knows, could contribute to the children's permanency and stability, particularly where mother's own life record reflects chronic instability. (See id. at p. 465.) Even assuming that mother's petition contains at least one implicit changed circumstance—she was a substance abuser, and now is not—the required showing as to the children's best interest remains both absent and virtually impossible. Indeed, mother—whose focus throughout this action has been on her own need to see the children—never explains how visitation would serve the children's best interest. Instead, she argues only that the court's refusal to enforce its order and DCFS's failure to arrange postreunification visits with the children denied her any chance to establish the close parental relationship that might qualify for the exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). Mother's assertion rests on a faulty premise, namely that it would have been possible to establish—in the case of A.I.—or to reestablish—in the case of D.I.—such a relationship here.
Section 366.26, subdivision (c)(1)(B)(i), requires a showing that "(t)he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." To show sufficient benefit from continuing the relationship to avoid termination of parental rights, a "parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007; see also In re Derek W., supra, 73 Cal.App.4th at p. 827 [parental relationship must resemble consistent, daily nurturing, not just frequent and loving contact or a pleasant and emotionally significant bond].)
At the section 366.26 hearing, the juvenile court observed that even if mother had been permitted to have the postreunification visitation "she requested, it would still not come close to an affirmative defense."
--------
This case is quite unlike Hunter S. Significantly, in contrast with mother's conduct here, the mother in Hunter S. "consistently raised the issue of the juvenile court's failure to enforce its visitation order for over two years." (Id. at p. 1505.) Here, mother made no effort at the outset to see or contact her children for the first eight months of their detention, then reappeared for a brief time, only to disappear again for several more months because she relapsed and needed to "work on herself." In Hunter S., the mother had a preexisting "'loving close relationship'" with her son for more than five years from his birth and maintained that bond during her incarceration. (Id. at p. 1501.) There is no evidence A.I. has ever had a close relationship with mother. And, any bond D.I. once shared with mother had clearly been severed by the time the section 388 petition was filed. Moreover, unlike Hunter S., wherein the mother consistently complied with her case plan and maintained sobriety, mother failed completely to show sufficiently changed circumstances.
In sum, mother's section 388 petition was facially insufficient. She has not shown how visitation with the children would be in their best interest, and has not shown why the dependency court's error or DCFS's failure to arrange the sporadic visitation mother sought are to blame for the current state of affairs, given her highly unstable circumstances and frequent extended absences. For these reasons, we conclude that the court did not abuse its discretion by denying the petition without a hearing.
We also reject mother's assertion that she was denied due process because the court's failure to enforce the postreunification visitation order precluded her from taking advantage of the "'escape mechanism'" of section 388. The purpose of a section 388 modification petition is to provide an escape mechanism when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) The fundamental flaw in mother's argument is that she failed to make even a prima facie showing of the "complete reformation" necessary to avoid termination of her parental rights. The purpose of the beneficial relationship exception to termination of parental rights is to preserve a strong, extant and beneficial parent-child relationship. It does not create an independent right to create such a relationship where none exists so that a parent may thwart her child's adoption.
Mother makes no substantive argument regarding the court's ultimate decision to terminate parental rights. Nevertheless, for reasons discussed above, we also find no error in the juvenile court's conclusion that the children were adoptable and that termination of parental rights was in their best interest.
DISPOSITION
The orders denying mother's section 388 petition and terminating parental rights are affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.