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In re L.C.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 26, 2012
D060190 (Cal. Ct. App. Jan. 26, 2012)

Opinion

D060190

01-26-2012

In re L.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Petitioner and Respondent, v. LACIE C., Objector and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NJ14334)

APPEAL from orders of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.

Lacie C., mother of dependent child L.C., contends the juvenile court erred when it denied her Welfare and Institutions Code section 388 petition seeking reinstatement of reunification services because she satisfied her burden to show her circumstances had changed and it would be in L.C.'s best interests to reinstate those services. Alternatively, Lacie contends the record lacks substantial evidence to support the court's finding that the beneficial parent-child relationship exception to adoption did not apply to her.

All further statutory references are to the Welfare and Institutions Code.

As we explain, neither of these contentions has merit. Accordingly, we affirm the orders denying Lacie's section 388 petition and terminating her parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

Lacie and Todd C. are the parents of L.C., their only child. They had been married for about nine years when the San Diego County Health and Human Services Agency (Agency) in 2010 filed a dependency petition on behalf of L.C. The petition alleged L.C. was at substantial risk of serious physical injury as a result of the parents' domestic violence and Todd's ongoing heroin use.

Todd has not appealed the order terminating parental rights.

In August 2008, while under the influence of alcohol, Todd hit and knocked Lacie unconscious. L.C., then five years old, tried to pull his father off of Lacie and also tried to hit his father with a pipe. Todd was arrested, the referral was substantiated, and Lacie was offered voluntary services, which she declined.

In March 2010, during an argument between the parents, Lacie fell backwards and while on the floor, Todd stomped on her foot. Lacie claimed that L.C. was riding his bicycle and did not witness the confrontation. Lacie admitted to police that she and Todd were living together in violation of a September 2008 criminal protective order.

Agency investigated referrals based on the March 2010 domestic violence incident and allegations the parents were neglecting L.C. L.C.'s teacher reported that L.C. often came to school without taking his prescription medication to control certain behaviors. In addition, when accompanying L.C. at school, Lacie was observed walking in a "wobbly" fashion.

L.C. reported that while living with his parents, he showered without help, but not every day; he brushed his teeth nearly every day; his parents left him unsupervised in the home for several hours at a time; his mother slept a lot and sometimes fell asleep standing up; and his parents constantly argued and it would make him angry when they yelled at each other.

Agency social worker Jannee Shipley investigated the March 2010 incident. Lacie denied any domestic violence, but admitted Todd used heroin in November 2009, although she denied knowledge of Todd's recent drug use. Lacie also denied her own drug use aside from prescribed pain medication and temporary use of insulin.

In mid-May 2010, Todd was arrested for violation of the 2008 criminal protective order. During a search incident to arrest, police found a syringe containing heroin. Todd admitted the heroin belonged to him, he used heroin about three times a week and injected the heroin in his left leg.

L.C. was taken into protective custody in mid-May 2010. At the subsequent detention hearing, the juvenile court found Agency made a prima facie showing L.C. fell within the protections afforded by section 300, subdivision (b) and ordered L.C. detained in licensed foster care. The court also found Todd was the presumed father of L.C. and entered a judgment of parentage. The court authorized the parents to have "liberal" supervised visitation with L.C.

A. Section 300 Petition

Agency on May 26, 2010, filed a petition under section 300, subdivision (b). The petition alleged L.C. was at substantial risk of serious physical harm or illness based on the parents' history of domestic violence, their refusal to cooperate in Agency's investigation and Todd's admission of his longstanding heroin use.

During an interview with an Agency social worker, Todd denied any domestic violence. He admitted using heroin since he was 18 years old. He also admitted using "beer, pot, speed, mushrooms, [and] acid a couple of times," although heroin was his "drug of choice."

According to the investigating social worker, Lacie appeared under the influence of a controlled substance during her interview and as the interview progressed, Lacie rambled and it became more difficult to discern when Lacie was telling the truth, exaggerating or providing information that was a "total fiction."

Agency report cited evidence of Lacie's "altered perception of reality" and "distortion of the truth." For example, in some of her visits with L.C., Lacie brought "large trash bags of toys, clothing and art projects," insisting on each occasion that L.C.'s foster mother had requested Lacie bring these items when in fact the foster mother had made no such request. The trash bags "often contained trash, empty boxes and one time [Lacie's] personal laptop computer and a drill."

Lacie reported she began drinking alcohol at the age of seven. At the age of 12 or 13, Lacie began to drink heavily, smoked a lot of marijuana "and did a lot of acid," which she claimed was her drug of choice. Lacie claimed to have stopped doing drugs in 2000, after her arrest, and denied taking any prescription medication other than "Norco" for pain relief.

When asked about domestic violence, Lacie responded there was no domestic violence in March 2010. She also claimed that "physical fighting" between adults was not wrong, as long as the fighting is not done in front of children. When asked about her understanding of why L.C. was in foster care, Lacie blamed the situation on an overzealous social worker.

In discussing the family's perception of their needs, the report concluded Todd was aware of his substance abuse problems and his need for anger management classes. As for Lacie, the report found Lacie's minimization of domestic violence and her complete denial of substance abuse "extremely concerning."

Agency's July 2010 addendum report noted L.C. had left foster care and was living with his maternal grandfather, whom L.C. lovingly referred to as "Papa Gino." That report found L.C. was thriving in this arrangement, was exhibiting fewer inappropriate behaviors than when he was living with his parents and was sleeping through the night without prescription medication.

Agency report noted Lacie failed to appear for drug testing, despite promising to take a drug test in an earlier court proceeding. Todd, however, tested positive for methamphetamine, codeine and heroin. Although he initially agreed to participate in drug treatment, Todd failed to attend his scheduled appointment and did not return to the drug treatment facility.

Regarding visitation, the parents were consistently 15 to 30 minutes late for their supervised visits with L.C. The parents' explanation for their late arrival "varied between being lost and vehicle problems."

At the July 29, 2010 contested hearing, the juvenile court found clear and convincing evidence supported the allegations under section 300, subdivision (b). The court declared L.C. a dependent, removed him from parental custody and ordered the parents to participate in reunification services. Lacie was ordered to submit to four on-demand random drug tests and ordered to residential treatment if she failed to submit to drug testing or tested positive.

In late August 2010, Agency moved ex parte for court approval of an amended case plan for the parents. The ex parte application described Lacie's continued lack of cooperation with Agency, including her refusal to answer the door at the family home or her cell phone; her failure to return calls after messages were left on her voicemail; and her failure to participate in drug testing on July 2, 23, 27 and August 5, 2010.

Lacie submitted a sample for testing on July 21, 2010. Although the results of that sample were unavailable at the July 29 hearing, test results subsequently showed that Lacie tested positive for amphetamine, methamphetamine, opiates and morphine. The juvenile court on August 15, 2010, ordered Lacie to participate in a substance abuse program.

B. Six-Month Review Hearing

Todd and Lacie were arrested in late August 2010 on burglary and theft charges after trying to cash a fraudulent check. Law enforcement searched the motel room where the couple had been living and found drug paraphernalia. Lacie was placed on three years' probation and ordered to report to a residential treatment program, which she did not do; nor did she contact her probation officer. Lacie also refused to disclose where she was living.

Meanwhile, family members of L.C. reported that since L.C. had been living with his maternal grandfather, he had become a "different kid," a "changed little boy" who "listens when you talk to him and looks so healthy. [L.C.] just seems comfortable and happy." L.C.'s progress was also noted by his teachers and principal, who reported that L.C.'s math and reading skills had "improved dramatically" since L.C. had been living with his maternal grandfather.

Agency reported in its status review report Lacie failed to follow visitation rules and was often late for visitation; Lacie was provided referrals to the required services but made no effort to contact treatment programs or therapists and lied about doing so; and Lacie consistently refused the myriad requests of Agency to participate in random drug tests.

In addition, the report described a visit between L.C. and Lacie before Christmas when Lacie gave her son "gifts" that included "two broken Nutcracker figurines (dirty and missing one arm each), a Game Boy which was filthy, marked with dirty handprints, four mouse traps, a pocket knife, a toy monocular and a toy pair of binoculars, a broken dinosaur ink pen, art paper and paints." Although Todd admitted his life was out of control and L.C. was in a much better situation when living with the maternal grandfather, Lacie maintained it was best for L.C. to live with her and maintained she had no problems in her life that were detrimental to her son.

The status review report recommended terminating Todd's reunification services because of his lengthy prison sentence. As to Lacie, it concluded her lack of cooperation with Agency and her view that she, and not L.C., was the "victim" made the prognosis for her reunification with L.C. "dismal."

C. L.C.'s Section 388 Petition to Terminate Reunification Services

In connection with the January 2011 six-month review hearing, L.C.'s counsel filed a section 388 petition seeking termination of the parents' reunification services. The petition noted reunification with Todd was not possible and there was "little to no possibility" that L.C. would be reunited with Lacie because of her "complete lack of cooperation" with Agency. The petition also noted L.C. was thriving under the care of his maternal grandfather, who was committed to providing L.C. the permanency he needed, and L.C. would benefit from reaching permanency as soon as possible. The juvenile court granted an evidentiary hearing on L.C.'s petition.

In Agency's January 2011 addendum report, it noted that Lacie continued to refuse to drug test, despite a court order requiring it. She also failed to avail herself of reunification services.

An addendum prepared by Agency in February 2011 described Lacie's arrest in January 2011 outside a convenience store. Although Lacie represented to the juvenile court that she had been arrested on an outstanding warrant, Lacie was arrested for being under the influence and subsequently charged with eight felony counts.

At the February 2011 contested hearing, the juvenile court granted L.C.'s section 388 petition after finding by clear and convincing evidence the minor met his burden to show changed circumstances and terminating the parents' reunification services would be in his best interests. The court also vacated both the six-month review hearing and the 12-month permanency hearing provided under section 366.21 and set a section 366.26 hearing.

In April 2011, L.C.'s maternal grandfather applied for de facto parent status.

D. Lacie's Section 388 Petition Seeking Reinstatement of Reunification Services

In early July 2011, Lacie filed her own section 388 petition seeking to change the juvenile court's order terminating her reunification services. In that petition, Lacie claimed she had secured a bed in a residential transitional home on her release from custody, she was clean and sober and was attending 12-step support meetings each week. She also claimed she was continuing to seek out additional parenting classes to assist in her relationship with L.C. In connection with why the change requested would be in L.C.'s best interests, Lacie stated that reunification would allow L.C. to have the daily support and care provided by his biological mother and would allow him to develop a normal relationship with her while maintaining his current relationship with the maternal grandfather.

At the contested hearing in July 2011, the juvenile court considered the testimony of Lacie, social worker Tamyra Bettilyon who prepared the most recent assessment and addendum reports concerning L.C. and his parents, the testimony of Donna Cleveland, who ran an inmate program that Lacie participated in while incarcerated, and all Agency reports submitted in the case, among other items of evidence. The juvenile court denied Lacie's section 388 petition, finding Lacie failed to satisfy her burden to show both changed circumstances and that granting the requested relief would be in L.C.'s best interests. The court also found by clear and convincing evidence that L.C. was adoptable.

Regarding the beneficial parent-child relationship exception, the court found Lacie had failed to visit and contact L.C. regularly and L.C. would not be so greatly harmed by the termination of his relationship with his mother as to outweigh the benefits of adoption. The court noted L.C. did not wish to speak to his mother, was not interested in her gifts, did not trust her and did not see her in a parental role.

DISCUSSION

A. Lacie's Section 388 Petition

1. Governing Law

Section 388 permits a modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the minor's best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) One of the functions of section 388 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." (Id. at p. 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his [or her] custody status." (In re Marilyn H., supra, at p. 309.)

A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 415; see also In re Casey D. (1999) 70 Cal.App.4th 38, 47.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Although a section 388 petition may be filed and heard at any time, up to and including the time of the section 366.26 hearing (In re Marilyn H., supra, 5 Cal.4th at p. 309), once reunification services are terminated a presumption arises that "continued care [under the dependency system] is in the best interest of the child." (Id. at p. 310.) At that point, the burden is on the parent to "rebut that presumption by showing that circumstances have changed that would warrant further consideration of reunification." (Ibid.)

2. Analysis

Here, the record shows that at the time of her section 388 petition, Lacie was participating in individual and group counseling and parenting classes and claimed she was maintaining her sobriety, all while incarcerated. In addition, on her release from custody Lacie had plans to move into a sober living facility.

Although Lacie's efforts are commendable, her continued participation and completion of counseling and parenting courses were "facts [that] were part of the ongoing record in the case with which the juvenile court was thoroughly familiar, not evidence of changed circumstances or new evidence. [Citation.]" (See In re Angel B. (2002) 97 Cal.App.4th 454, 463.)

Indeed, the record shows that since Agency filed its section 300 petition, Lacie had been arrested three times, mostly for drug-related offenses, and was incarcerated for a drug crime at the time she filed her own section 388 petition. Moreover, although Lacie claimed she was maintaining her sobriety, the record shows Lacie was not required, and had not submitted, to drug testing while incarcerated or as a condition to attending sobriety classes while in custody. The record also shows Lacie admitted to having the opportunity to use drugs while incarcerated.

What's more, the record shows Lacie had a long history of drug use, beginning at age seven with alcohol consumption. Although Lacie took an assortment of drugs, her drug of choice was LSD, which she used along with other drugs until her arrest in 2000. Although Lacie claims she was sober for almost nine years after her arrest in 2000, the record includes evidence supporting an opposite finding, including the 2008 domestic violence incident when Todd claimed he tried to take Lacie's car keys because she was drunk and wanted to drive. The record also shows that while Lacie claimed she was sober during this nine-year period, Todd was using drugs, including heroin, which Lacie claimed she allegedly did not know about.

The record also shows Lacie repeatedly misled Agency about her own drug use, claiming the only drugs she took while under investigation by Agency were pain medication and insulin. However, there is overwhelming evidence in the record that Lacie was using drugs, as shown by: her repeated refusal to submit to drug testing, even when ordered to do so by the juvenile court; her complete lack of cooperation with Agency in its efforts to provide her and Todd reunification services for substance abuse; witness accounts of Lacie appearing "wobbly" while at L.C.'s school; her erratic behavior during Agency interviews when she appeared to be under the influence of a controlled substance; her possession of narcotics and drug paraphernalia, which police found in her purse after her arrest; drug paraphernalia police found in the motel room where she and Todd had been living; physical evidence; and her positive drug test in July 2010 which revealed the presence of amphetamine, methamphetamine, opiates and morphine.

Thus, although the record shows Lacie made some progress to address her drug problem while incarcerated, we conclude the trial court properly exercised its discretion when it found at most Lacie showed her circumstances were changing but not changed, as required under section 388. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [seven months of sobriety insufficient for parent with long history of drug use, sobriety and then relapse to show changed circumstances]; In re Casey D., supra, 70 Cal.App.4th at pp. 48-49 [mother's circumstances were changing but not changed when she had an extensive history of using drugs, entering programs and then relapsing and had been drug free for about five months as of the hearing on her section 388 petition].)

Given our conclusion, we need not decide whether Lacie satisfied her burden to showed changed circumstances with respect to domestic violence.

Even assuming Lacie satisfied her burden to show changed circumstances, reinstating her reunification services was not in L.C.'s best interests. "In any custody determination, 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.)

Moreover, "[a]fter 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' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child.' [Citation.]" (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Here, in analyzing the "best interests of the child" prong under section 388, the juvenile court considered the comparative strengths of the bonds between the child and one or both parents, on the one hand, and the current caregiver, on the other hand, and found the bond much stronger between L.C. and his grandfather than between L.C. and one or both of his parents. The court noted the maternal grandfather was doing a "remarkable job" with L.C.

For example, while living with his maternal grandfather, L.C. improved his grades substantially, which the court found was "no small task" at L.C.'s age. L.C.'s progress was also noted by his teachers and principal, who reported L.C.'s math and reading skills had "improved dramatically" since L.C. began living with his maternal grandfather.

The record also shows family members of L.C., including his maternal uncle, recognized that since L.C. had been living with his maternal grandfather he had become a "different kid," a "changed little boy" who "listens when you talk to him and looks so healthy. [L.C.] just seems comfortable and happy." In addition, the record shows that while under his maternal grandparent's care, L.C. no longer needed prescription medicine to control his behavior or to sleep; L.C.'s grades not only improved, but he also made friends at school and began to participate in school activities; and he gained weight and became more self confident.

Also, after interviewing L.C., reviewing his case file and speaking with other social workers and the maternal grandfather, social worker Bettilyon opined L.C. felt safe in his grandfather's home, reentering reunification would frighten him and cause him anxiety about the permanency of his placement with his grandfather, and it was in L.C.'s best interests to remain with his grandfather, which is also what L.C. wanted. (See In re Edward H. (1996) 43 Cal.App.4th 584, 594 [prospect of an additional six months of reunification to see if mother could effectively separate from father would not have promoted stability for the children and thus would not have promoted their best interests when change of order requested on eve of section 366.26 hearing].)

As the juvenile court also noted, there was not a strong bond between L.C. and Lacie at the time the court considered her section 388 petition. This was evidenced by, among other things, L.C.'s refusal to view a second DVD sent by his mother showing her reading to L.C., after he watched the first video and had become upset. L.C. also stated he did not want to talk to his mother anymore after he became upset at the conclusion of their brief telephone conversation during her incarceration.

On this record, we have little difficulty concluding the juvenile court properly determined that reinstating reunification services was not in L.C.'s best interests. (See In re Stephanie M., supra, 7 Cal.4th at p. 319 [" ' "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." ' "]; see also In re Casey D., supra, 70 Cal.App.4th at p. 47 [a petition only alleging changed circumstances, which would lead to a delay in the selection of a permanent home to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or is in the child's best interests].)

B. Beneficial Parent-Child Relationship Exception to Adoption

If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception to adoption. (See § 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception applies if "[t]he 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 beneficial relationship is one that " 'promotes the well-being of the child to such a degree as to outweigh 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.) Whether this type of relationship exists is determined by taking into consideration "[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 p. 576.)

Lacie does not contest the finding that L.C. was adoptable.
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Our power " 'begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the' " juvenile court. (In re David H. (2008) 165 Cal.App.4th 1626, 1633 (italics added).) Substantial evidence is evidence that is reasonable, credible and of solid value. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) We view the record in the light most favorable to the court's conclusions, and draw all reasonable inferences from the evidence to support the conclusions. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We must defer to the juvenile court's determinations as to the credibility and weight of the evidence. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) Where the evidence so viewed is sufficient as a matter of law, we must affirm the juvenile court's conclusions. (Ibid.)

Here, the juvenile court found Lacie's visits with L.C. were "sporadic at best" and she was often late for the visits. While incarcerated, Lacie's telephone contacts with L.C. also were sporadic, despite arrangements made by a social worker for Lacie to call L.C. three times a week. The record thus contains substantial evidence supporting the finding of the juvenile court that Lacie did not maintain regular visitation and contact with L.C. (See § 366.26, subd. (c)(1)(B(i).)

In addition, the record also supports the finding that the benefits and stability L.C. will receive by being placed with his maternal grandfather outweighed any benefit conferred upon L.C. through continuing his relationship with Lacie. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575 ["[T]he 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."].)

At the time of the section 366.26 hearing, L.C. looked to his maternal grandfather for all of his needs, which the record shows were being met in a loving and meaningful way, and L.C. was thriving in that stable environment. In addition, L.C. wanted to be adopted by his "Papa Gino," who in turn wanted to adopt his grandson, and L.C. was anxious about the possibility of removal from his grandfather's home. In contrast, by the time of the contested section 366.26 hearing, L.C. did not have a "substantial, positive emotional attachment" (see In re Autumn H., supra, 27 Cal.App.4th at p. 575) with Lacie. We conclude substantial evidence supports the juvenile court's finding the beneficial parent-child relationship exception was inapplicable in this case.

DISPOSITION

The juvenile court's orders are affirmed.

BENKE, Acting P. J. WE CONCUR:

HALLER, J.

IRION, J.


Summaries of

In re L.C.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 26, 2012
D060190 (Cal. Ct. App. Jan. 26, 2012)
Case details for

In re L.C.

Case Details

Full title:In re L.C., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 26, 2012

Citations

D060190 (Cal. Ct. App. Jan. 26, 2012)