In re A.S.

Filed 6/5/08 In re A.S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Robert J. Anspach, Judge.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.

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Maria D. appeals from orders terminating her parental rights (Welf. & Inst. Code,  366.26) to her daughter A.S. and son A.G..^[1] Appellant contends the court abused its discretion when it denied her petition to regain custody of the children at the permanency planning stage. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

A New Years Day 2005 report of a domestic dispute led to the discovery of appellants abuse and neglect of her children, A.S. then approximately four years old and one-and-a-half-year-old A.G. Appellant would use a studded belt to inflict physical harm on both children, particularly A.S., who had sustained several injuries. Also, due to her alcohol abuse, appellant was unable to provide regular care for the children. In addition, appellant failed to protect A.S. from sexual abuse. A.S. reported she had been sexually abused to appellant. However, she not only had failed to protect the child, appellant also tried to conceal the sexual abuse from law enforcement. Furthermore, appellant had abused or neglected five of the childrens older siblings, resulting in her loss of parental rights. In the 1990s, she received reunification services first for three of them and later for a fourth child. In each instance, however, she failed to reunify. In the case of the fifth child to be removed from her custody, the court denied appellant services before terminating rights.

Based on these facts, respondent Kern County Department of Human Services (department) detained A.S. and A.G. (the children) and initiated these dependency proceedings. The Kern County Superior Court in turn exercised its dependency jurisdiction over the children ( 300, subds. (a),(b),(d) & (j)), adjudged them juvenile dependents, and removed them from appellants custody. The court ordered appellant to participate in counseling for parenting, physical abuse awareness, sexual abuse awareness and substance abuse as well as to submit to monthly random drug tests and visits with the children. Meanwhile, the children were placed with their maternal aunt.

From the outset, appellant participated in court-ordered services and made progress. During the first six months of services, she completed parenting, physical abuse awareness and sexual abuse awareness counseling. In late August 2005, after twice failing to drug test, appellant entered a perinatal facility for residential drug treatment. During the second six months, appellant remained in the program, which she eventually completed and gave birth to another child who was born healthy and with no known problems. Based on appellants significant progress, the court continued services for her past the 12-month mark of the childrens removal from her custody. Eventually in the end of June 2006, the court returned the children to appellants care subject to family maintenance services.

Five months later, the department filed a supplemental petition in the childrens cases, alleging the courts previous disposition had been ineffective in protecting them. In late November 2006, appellant tested positive for methamphetamine upon her admission to a hospital for an anxiety attack. She admitted she drank alcohol and used methamphetamine in the home while the children were in her care and asleep. The department redetained the children, placing them once more with their maternal aunt. It also detained their younger sibling and initiated original dependency proceedings as to her.

A report, submitted in support of the supplemental petition, revealed a social workers conversation with A.S. in which she affirmed that appellant frequently drank. Appellant meanwhile claimed she only experienced a one-time relapse. In addition, A.S. had an abrasion on the side of her face that she claimed appellant caused by hitting her across the face with a belt.

In January 2007, the superior court found the supplemental petitions allegations true. The department in turn recommended against any further reunification services in the childrens cases because appellant exhausted the statutory time for services, having received 18 months of reunification services and five months of family maintenance services. Meanwhile, it offered her services in the case of her youngest child; appellant reenrolled in substance abuse counseling. Following an uncontested hearing, the court denied appellant any further services as to the children ( 361.5, subd. (a)(3)) and set a hearing to select and implement a permanent plan for them ( 366.26).^[2]

Four months later, appellants trial counsel petitioned ( 388) the court to vacate its order terminating services and return the children to appellants custody subject to family maintenance services. Appellant purportedly made excellent progress in her latest substance abuse counseling, visited consistently with the children, and obtained appropriate housing for them. Reunification allegedly would be better for the children because it would reestablish the family unit and allow the children to increase their bond with appellant. Notably, appellant offered no evidence in support of her attorneys claims.

The court calendared the petition for consideration in conjunction with the permanency planning hearing. After multiple continuances, the court conducted both hearings in October 2007.

In the interim, the department filed three reports: first, a social study in which it recommended the court find the children adoptable and free them for adoption by their maternal aunt; second, a report in opposition to appellants section 388 modification request; and third, a supplemental report with updated information for the October 2007 hearing. Relevant to the issue on appeal, these reports disclosed the following information.

Six-year-old A.S., who overcame a history of inappropriate social behavior following her original removal from appellants custody, reverted to inappropriate social behavior following her return to appellants care. It took consistent effort, apparently by the childs maternal aunt and therapist to reestablish her social skills after she was redetained in November 2006. Nonetheless, she could still be aggressive with other children and was impulsive and uncooperative with adults and children. Her behavior implied anger and emotional scaring from the abuse she experienced while in appellants care.

A.S. also showed steady progress in school since she returned to her aunts care. According to A.S.s teacher, she simply needed stability. Her recent progress was a positive indicator that with guidance and a grounded and stable home life, A.S. could continue to make progress.

When interviewed by an adoption specialist, A.S. stated: I like living with my aunt. I am going to live with her for a long time. My mother comes to see me there. A.S. shook her head negatively when asked about going to live with her mother again. The child volunteered she liked her aunts cooking and asked Do I have to move away? When asked on a later date if she would like to go back and live with her mother, A.S. shrugged her shoulders and stated she was not sure.

Four-year-old A.G., who was very shy when interviewed, indicated by nodding his head about whether he was happy living with his aunt. He shook his head negatively when asked if he wanted to live elsewhere. During a later interview, he quickly said mommy when asked if he could live with anyone who would that be. Notably, A.G. called both appellant and his aunt mommy.

According to the departments adoption assessment, the children no longer had a clearly defined or dependent relationship with appellant. Their relationship had evolved into a visiting relationship. Their visits were pleasant. Nonetheless, the childrens original attachment with appellant had been significantly altered so that they no longer relied on her.

Meanwhile, appellant did complete another parenting course as well as substance abuse counseling in connection with her youngest childs dependency. She had been laid off from work and was renting a bedroom for $175 a month in another persons home. Appellant planned to remain there and have the children live there with her. A male friend periodically lent appellant money to pay the rent. As of October 2007, appellant had seasonal work as a farm laborer. However, her monthly rental of the bedroom had increased to $300 and she was one month in arrears on her rent. Except for one failure to test in August 2007, appellant consistently drug tested with negative results.

At the October 2007 hearing, appellant presented no evidence, apparently relying on the showing contained in the departments reports. Her attorney made an offer of proof, which the other attorneys accepted, that appellant was still residing in the home, was paying $300 a month rent and could have all of the children with her there. Following closing arguments, the court denied appellants petition, observing the evidence did not show that the requested change would be in the childrens best interests. The court thereafter found clear and convincing evidence that the children were likely to be adopted and terminated parental rights.

DISCUSSION

Appellant contends the court abused its discretion by denying her section 388 petition to regain custody of the children. As she sees it, she had done all that was asked of her and, except for a single relapse, had been sober for over two years. She had also maintained good visits with the children over the course of their dependency. She further claims there was no evidence that removing the children from their aunts care would be detrimental to them. Thus, appellant concludes, she was entitled to an order returning custody to her.

Any party to a dependency proceeding may petition the court to modify or set aside a prior order on grounds of changed circumstance or new evidence. ( 388, subd. (a).) The petitioning party, however, must also show the proposed change is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) 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. (Id. at p. 318.) On this record, we conclude the court did not abuse its discretion.

First, the court properly could conclude appellants circumstances had not changed since March 2007 when it denied her further services and set the section 366.26 hearing. At that time too, she was compliant with her case plan to reunify with her youngest child. However, she had exhausted the time available for services as to these children. In addition, although appellant takes pains in arguing she only suffered a momentary relapse, there was conflicting evidence on this point, given A.S.s statement to the contrary and the report that appellant had resumed using a belt on her.

In any event, appellant failed to show that a return of custody would be in the childrens best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) As noted earlier, appellant presented no evidence in support of her petition. At most, her attorney alleged reunification would reestablish the family unit and allow the children to increase their bond with appellant. While there was the departments evidence that appellant and the children shared good visits, this did not satisfy appellants burden of proof.

Furthermore, given the timing of her modification request, it was incumbent upon appellant to show the childrens need for permanency and stability would be advanced by an order returning them to her custody. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) By the permanency planning stage, the courts focus shifts away from family reunification to the childrens needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interests 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 interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Notably, the mother ignores our state Supreme Courts language in Stephanie M. and instead urges this court to apply factors suggested by the appellate court in In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532, to evaluate the childrens best interests. Those factors, which the appellate court created, are: the seriousness of the problem leading to dependency and the reason that problem was not overcome; the strength of relative bonds between the dependent children to both parent and caretakers; and the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Ibid.)

We decline to apply the Kimberly F. factors if for no other reason than they do not take into account the Supreme Courts analysisin Stephanie M. of best interests especially after reunification efforts have been terminated. At most, the Kimberly F. court reviewed the facts in Stephanie M. and compared them with the underlying facts in their case. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 533-534.)We choose instead to follow the direction of our states Supreme Court.

Not only did appellant fail to present any best interests evidence, the department presented evidence refuting any possible benefit claim by appellant. Six-year-old A.S. still showed the effects of the abuse she previously suffered while in appellants care and her behavior had deteriorated when she was returned to appellants custody in the summer of 2006. The progress A.S. made thereafter both in her aunts home, in school and in therapy were indicators of the benefits she received with guidance and a grounded and stable home life. Also, the departments evidence revealed the children were happy in their aunts home and no longer had a clearly defined or dependent relationship with appellant. Their original attachment with appellant had been significantly altered over time.

Finally, to the extent appellant assumes she was entitled to relief absent evidence that removing the children from their aunts care would be detrimental to them, she once again overlooks her burden of proof. The standard the juvenile court must apply at a hearing to change placement under section 388 does not require that it grant the change unless such a placement would be detrimental to the child. (In re Stephanie M., supra, 7 Cal.4th at p. 325.) Rather, the court must decide whether the petitioning party carried the burden of showing the proposed change of placement was in the childs best interests. (Ibid.)

Although appellant notes the state Supreme Court in In re Jasmon O. (1994) 8 Cal.4th 398 discussed detriment evidence in connection with a childs placement change, she ignores the underlying facts and context of the courts discussion. A juvenile court had ordered the gradual transfer of a childs custody from foster care to her father. However, the transfer caused the child significant emotional distress and mental health problems. Based on these facts, the departmentpetitioned to modify the courts transfer of custody order. The state Supreme Court determined the department met its burden as the petitioning party to show the juvenile courts prior order was not in the childs best interests in light of the detriment she suffered. (In re Jasmon O., supra, 8 Cal.4th at p. 417.) The state Supreme Court did not alter the burden of proof on a section 388 modification request.

Under all of these circumstances, we conclude the court did not abuse its discretion by denying appellants modification request.

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] By contrast, in the youngest childs case, the court ordered reunification services