Opinion
E052583
08-02-2011
In re A.V., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.V., Defendant and Appellant.
John M.C. Reilly, under appointment by the Court of Appeal, for Defendant and Appellant. Pamela J. Walls, County Counsel, and Larisa R. McKenna, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. RIJJ118666)
OPINION
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
John M.C. Reilly, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Larisa R. McKenna, Deputy County Counsel, for Plaintiff and Respondent.
II. INTRODUCTION
Defendant and appellant C.V. (mother) appeals from the termination of her parental rights under Welfare and Institution Code section 366.26 as to her daughter, A.V. Mother contends the juvenile court erred in denying her petition under section 388, in failing to consider legal guardianship as an alternative, and in failing to find that the beneficial relationship exception to adoption applied. We find no error, and we affirm.
All further statutory references are to the Welfare and Institutions Code.
III. FACTS AND PROCEDURAL BACKGROUND
When mother gave birth to A.V. in September 2009, the child tested positive for amphetamines, and mother admitted using methamphetamines during her pregnancy. Plaintiff and respondent Riverside County Department of Public Social Services (Department) filed a petition under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support).
The Department filed a detention report in September 2009. In the report, the social worker stated that mother did not know which of "a lot of men" with whom she had been sexually active was A.V.'s father. Mother did not have a job, was unstable, and had been using drugs, primarily methamphetamines, since she was 14 years old. Mother had a conviction for transporting drugs. She went to a substance abuse program in 2008 during her parole, but she nonetheless continued to use drugs. Mother had already made plans to give A.V. to her parents, who had legal guardianship over mother's two other children. The maternal grandmother was willing to care for A.V. The juvenile court found a prima facie case had been established and detained the child.
The Department filed a jurisdiction/disposition report in September 2009. In the report, the social worker stated that mother had an extensive criminal history, including convictions for possession of a controlled substance for sale, transporting a controlled substance, receiving stolen property, and being under the influence of a controlled substance, as well as several violations of parole. Mother had no permanent address and was unemployed.
At the jurisdiction/disposition hearing in October 2009, the juvenile court found the allegations of the petition true. The court ordered reunification services, including a substance abuse treatment program, random drug testing, individual counseling, and a parenting education program.
The Department filed a six-month status review report in March 2010. In the report, the social worker stated mother had been discharged from one substance abuse program because she had 10 unexcused absences, had refused to take a drug test, and had showed "[n]o progress toward positive change." Mother had enrolled in a second substance abuse program but failed to attend several sessions. She had been referred to a counseling center for individual counseling, but she had not yet started the program. Mother was unemployed, although she was looking for work. Mother had been attending visitations regularly and was going to Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings. In an addendum report filed in April 2010, the social worker stated the maternal grandparents were being evaluated for placement.
At the six-month review hearing in May 2010, the juvenile court found mother's progress in completing her case plan had been unsatisfactory, terminated reunification services, and set the matter for a section 366.26 hearing. The maternal grandmother asked for placement of the child, and the child was placed with her in June 2010.
The Department filed a section 366.26 report in July 2010 recommending adoption as the permanent plan. When the section 366.26 hearing began in September 2010, the social worker reported that the maternal grandparents said they would adopt if necessary but would prefer legal guardianship over adoption, so mother could "get the children back." The juvenile court noted that A.V. was then only 11 months old and stated the maternal grandparents needed to decide whether they would adopt. The juvenile court continued the hearing for 90 days.
The Department filed a second section 366.26 report in November 2010. In the report, the social worker stated the maternal grandparents had expressed their willingness to adopt A.V. A.V. had "clearly become attached" to her maternal grandparents and to her half sisters, who were under legal guardianship with them. The maternal grandparents had moved to California from Arizona to facilitate placement of A.V. with them. Mother lived in the same apartment complex with the maternal grandparents and had daily supervised visitation with A.V.
On November 19, 2010, the Department filed a preliminary assessment of the maternal grandparents. In the report, the social worker stated their home was suitable and safe. The maternal grandparents expressed strong love for and a strong bond with A.V. They were aware of the rights and responsibilities involved with adoption, and they stated their desire to adopt A.V.
On November 30, 2010, mother filed a petition under section 388 seeking return of the child or reinstatement of reunification services. She provided proof of completion of a parenting class, employment, and suitable housing. In addition, she stated she was attending aftercare through AA/NA. She later provided proof of completion of an inpatient substance abuse program.
The juvenile court held a hearing on the petition. It stated that mother was a long-term chronic methamphetamine addict, and although her circumstances were changing, they were not yet changed. The court observed that A.V. had been in a stable and loving home for some time, and it was not in her best interest to grant the petition. The juvenile court therefore denied the petition.
At the section 366.26 hearing, mother's counsel argued that the beneficial relationship exception to adoption applied. Her counsel also requested legal guardianship rather than adoption as the permanent plan. The juvenile court found that no exception to adoption applied and terminated mother's parental rights.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Denial of Section 388 Petition
Mother contends the juvenile court erred in denying her section 388 petition.
A parent who seeks a modification of an order of the juvenile court may file a petition under section 388. (In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.) To succeed in such a petition, the parent must establish both that circumstances have changed and that the modification of the earlier order would be in the child's best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) We review the juvenile court's ruling on the petition under the deferential abuse of discretion standard. (In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.)
Mother argues she showed changed circumstances because she had completed a substance abuse program that included testing; she had completed a parenting class; she was attending AA/NA aftercare; she was employed; and she had suitable housing. Moreover, her visits with A.V. had been consistent and appropriate. However, as the trial court pointed out, mother had a long-term history of methamphetamine addiction, whereas her recent sobriety had been brief. She had completed her substance abuse program on November 30, 2010, only the day before the section 366.26 hearing.
We commend mother on her progress, but we nonetheless find no abuse of discretion in the trial court's conclusion that mother failed to meet her burden of establishing changed circumstances. (See, e.g., In re Mary G. (2007) 151 Cal.App.4th 184, 205-206 [mother's completion of a detoxification program and participation in drug treatment and NA meetings over a three-month period did not even constitute a prima facie case of changed circumstances when she had a 23-year record of drug abuse].) Here, as the trial court found, mother showed only changing circumstances, not changed circumstances. Because we find support for the juvenile court's conclusion that mother failed to establish the first prong of changed circumstances, we need not address her arguments as to the second prong of the best interest of the child.
B. Legal Guardianship as an Alternative
Mother contends the juvenile court erred in failing to consider legal guardianship as an alternative to adoption.
1. Additional Background
When the section 366.26 hearing began, the social worker stated the maternal grandparents "would like to do legal guardianship over adoption, and I have talked to them." The court stated, "So they don't want to adopt," and the social worker responded, "They will if they have to, but they really want to do legal guardianship so the mother can get the children back." The court stated, "We have an 11-month old child. I think the grandparents need to make a decision whether they are going to adopt or not. If not, I'm going to direct the Department to find another home for the child." The juvenile court found good cause to continue the matter for 90 days because "the child was fairly recently placed with maternal grandparents, and the maternal grandparents are expressing doubt as to whether they actually wish to adopt the child." The court "direct[ed] the Department to find another adoptive home for the child in the event that the grandparents do not wish to adopt. . . . And to the Department, if the grandparents do not wish to adopt, I think it's probably in the child's best interest that the child be removed from the grandparents' house and placed in another adoptive home as soon as possible."
2. Analysis
The Legislature has expressed a preference for adoption as the permanent plan when a parent fails to reunify with a child (In re Derek W. (1999) 73 Cal.App.4th 823, 826), unless one of several listed exceptions applies (§ 366.26, subd. (c)(1)). One such exception applies when "the child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child." (§ 366.26, subd. (c)(1)(A).) A parent claiming the exception has the burden of establishing by a preponderance of the evidence that it applies. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.)
We are gravely troubled by the juvenile court's approach, which appears to be unduly coercive toward the maternal grandparents and fails to consider the effect of yet another placement on a child who was currently thriving—A.V. had already been in three foster placements before her placement with the maternal grandparents was approved. When she was released from the hospital as a newborn infant in September 2009, she was placed in a licensed foster home. In February 2010, she was moved to a second foster home because of allegations against the foster home unrelated to her. In April 2010, she was moved to a third foster home when the second foster home's placement agency went out of business. Despite these revolving door placements, it appears she was developmentally on target. In November 2010, the social worker stated A.V. was "a happy toddler and has adjusted well to living with her maternal grandparents and sibling sisters. She does not exhibit any signs that would indicate that she is having difficulty adjusting to the maternal grandparent's home." Moreover, even before A.V. was placed with them, her maternal grandparents were involved with her life. They were present during her birth; they periodically visited her during her foster placements; and they brought her half siblings to the visits so they could develop a relationship while they were waiting for approval of her placement with them. They moved from Arizona to California to facilitate the placement. In the section 366.26 report filed in November 2010, the social worker stated that A.V. had then been in the maternal grandparents' care for five months "and has clearly become attached to them" and to her half-sisters. In our view, based on this record, it would have been an abuse of discretion to find that the child's "best interest" required moving her to yet another home with strangers in the event the maternal grandparents were found to be unwilling to adopt.
We nonetheless find no reversible error, because the record contains ample evidence the grandparents were willing to adopt even before the juvenile court issued its ultimatum. The Delivered Service Log notation for April 28, 2010, attached to the Department's report filed in July 2010, states: "Current caregivers [the foster parents with whom the child was then placed] are not interested in adoption. Grandparents are and RAU referral has been made. They already have LG [legal guardianship] of 2 older sibs. Plan is for adoption." Next, the Department's July 2010 report stated, "On 6/17/2010, the maternal grandparents expressed their willingness to assume adoption of their grandchild, [A.V.]. The home of the maternal grandparents has been safe for siblings and is deemed to be a safe environment for [A.V]. Therefore, the Department respectfully requests that the parental rights of [mother] . . . be terminated so that the maternal grandparents . . . can adopt their grandchild, [A.V.]. In the July 2010 report, the Department requested a continuance of the section 366.26 hearing "to allow the grandparents an opportunity to complete the adoption packet."
When a relative caretaker is able and willing to adopt the child, "[t]he caretaker's preference for guardianship over adoption is irrelevant at a section 366.26 hearing, 'where the court's task [is] to select the plan which best serve[s] the child's interests.' [Citation.]" (In re Xavier G. (2007) 157 Cal.App.4th 208, 214 [when the record contained substantial evidence that the grandmother was willing and able to adopt, the juvenile court did not err in disregarding her preference for legal guardianship].) In In re Jose V. (1996) 50 Cal.App.4th 1792, the juvenile court rejected proffered testimony from the prospective adoptive parent that she would prefer legal guardianship over adoption. On appeal, the court found no error, explaining that to apply the exception in former section 366.26, subdivision (c)(1)(D), the predecessor statute to section 366.26, subdivision (c)(1)(A), the juvenile court "was required to find that she was neither unable nor unwilling to adopt [the child]. In her testimony she clearly stated she was able and willing. Any additional evidence that she preferred to be a guardian had no tendency to rebut the strong presumption that adoption was the best possible plan for [the child.]." (In re Jose V., supra, at p. 1801.)
Here, although the maternal grandparents expressed a preference for guardianship, they had also stated they were able and willing to adopt. Mother has shown no exceptional circumstances that would bring the case within the exception set forth in section 366.26, subd. (c)(1)(A).) (See, e.g., In re Fernando M. (2006) 138 Cal.App.4th 529, 535-538 [finding exceptional circumstances supported legal guardianship by the grandmother when the child was a special needs child, and the grandfather was opposed to adoption].) We therefore conclude the record contains substantial evidence supporting the juvenile court's finding that the grandparents were willing to adopt. (See In re Xavier G., supra, 157 Cal.App.4th at p. 214.)
C. Beneficial Relationship Exception to Adoptability
Mother next contends the juvenile court erred in failing to find that the beneficial relationship exception to adoption applied.
A second exception to the Legislative preference for adoption applies when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A parent seeking application of this exception bears the burden of establishing both prongs of regular visitation and contact with the child and benefit to the child from continuing the relationship.
We will assume for purposes of argument that mother met her burden of establishing the first prong—mother's visits with A.V. had been regular, consistent, appropriate, and positive. However, to establish the second prong, mother was required to show that the bond between her and A.V. was sufficiently strong that the child would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450.) The parties stipulated that at the section 366.26 hearing, mother would have testified that she and A.V. had a strong bond, the child called her "mama," and ran to her and hugged and kissed her during visits. A relationship of "'affectionate closeness'" is not alone sufficient to meet the second prong of the test. (In re Aaliyah R., supra, at p. 450.) Rather, the juvenile court "balances 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The court considers, among other things, "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at pp. 575-576.)
A.V. has never lived with mother. Other than providing incidental care during visitations, mother had never occupied a parental role with A.V., and A.V. has found a safe, stable, and loving placement with the maternal grandparents. Mother provided no bonding study or other evidence that termination of her parental rights would be detrimental to the child. (Cf. In re S.B. (2008) 164 Cal.App.4th 289, 295-296 [error to fail to apply the beneficial relationship exception when, among many other factors, the parent introduced a psychologist's bonding study and testimony that severing the parent's relationship with the child would be detrimental].) We therefore find no abuse of discretion in the juvenile court's finding that the child's need for a permanent placement outweighed the benefit of continuance of her relationship with mother. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450.)
IV. DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.