In re C.B.

Filed 12/9/08 In re C.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor C.B.

Valerie N. Lankford, under appointment by the Court of Appeal, for Minor A.B.

Neil R. Trop, under appointment by the Court of Appeal, for Minors J.B. and J.J.

The underlying dependency action involves the four daughters of S.M. (hereafter referred to as S.). S. appeals an order denying her motion for modification of a dependency court order terminating reunification services and setting a permanency planning hearing for all four girls. She also appeals an order terminating her parental rights to her 10-year-old daughter, C.B.^[1] Because we conclude that the juvenile court did not abuse its discretion with respect to either order, we affirm.

FACTUAL AND PROCEDURAL HISTORY

S. lost custody of her three oldest children in 1993. Services were provided in that case from February 1990 until February 1995. In 1995, S.s parental rights were terminated and all three children were placed for adoption. In March 2000, a dependency petition was filed as to S.s four youngest children, J.J., C.B., J.B. and A.B.^[2] Dependency jurisdiction was terminated in April 2002. A new petition was filed on January 31, 2005, after S. and the father of the B. children engaged in an altercation in which the father grabbed C. by the neck, shoved her against a water heater and pinned her against a wall.^[3] The petition included allegations based on the parents domestic violence, substance abuse by both parents, the filthy condition of the family home, the parents neglect of the childrens educational needs, and S.s history of mental health problems and her failure to take her prescribed medication. The petition also alleged that the father was unable to provide support for the B. children because he was then incarcerated. The children were detained and placed in foster homes.

At the jurisdiction and disposition hearing held on April 26, 2005, the court found all of the allegations true except the allegation of neglect of the childrens educational needs. The court found by clear and convincing evidence that both parents had a history of drug abuse and had resisted prior treatment within three years prior to the filing of the petition, within the meaning of Welfare and Institutions Code section 361.5, subdivision (b)(13).^[4] On that basis, the court denied reunification services and set a selection and implementation hearing pursuant to section 366.26. ( 361.5, subd. (f).)

Both parents challenged the order denying reunification services for lack of sufficient evidence in a writ proceeding, and we reversed the order. Section 361.5, subdivision (b)(13) permits denial of reunification services if the court finds that the parent has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the courts attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible. Because there was no evidence that the juvenile court had previously ordered either parent to engage in a drug treatment program, we ordered the court to vacate the section 366.26 hearing and to hold a further disposition hearing to determine whether reunification services should be offered to either parent. (S[.]B. v. Superior Court (July 7, 2005, E037985) [nonpub. opn.].) On August 24, 2005, the juvenile court ordered services for both parents.

At the 12-month review hearing on October 23, 2006, the court terminated services as to the father of the B. children, finding that he had made no progress toward alleviating the causes which necessitated placement. S. was ordered to participate in the services according to her case plan. The parents were notified that if the children could not be returned home by the next hearing, the court would set a section 366.26 hearing.

For the 18-month hearing, set for February 20, 2007, DPSS initially recommended that the court offer an additional six months of services to S. The status review report stated that S. had completed a number of the programs she was ordered to attend and that she was actively participating in the remaining programs and continuing to work on her parenting skills. She was testing clean and had achieved one year of sobriety. She had been visiting regularly with the children and the visits were generally going well, although the girls fought and argued. S. was developing strategies to address their behavior. However, DPSS asked to continue the review hearing, and in an addendum report prepared for the review hearing on April 10, 2007, DPSS recommended terminating reunification services and setting a section 366.26 hearing. The report stated that S., who has bipolar disorder, had not been taking her medication and had engaged in an altercation with her live-in boyfriend, Mr. H. He reported that she had hit him, and that when she was told that the children would not be coming for a scheduled visit, she had run down the street screaming that she was losing her children. During the next several days, S. called the social worker to report that Mr. H. was drinking and that she wanted him out of the house. For his part, Mr. H. reported that S. treated his daughter terrible and that she was making up her claim that he was drinking as an excuse to make him leave. He also reported that S. had cats in the apartment, which was apparently contrary to a directive issued by DPSS because the children were suffering from flea bites when they visited the apartment.

S. admitted that she was not taking her medication because it made her feel sick. She was working with her psychiatrist to obtain different medication. A few days later, she reported that she had begun taking her new medication and that it made her mellow. She told the social worker that Mr. H. was not drinking and that the misunderstanding was all her fault.

Mr. H.s daughter was also the subject of a dependency proceeding. In that proceeding, allegations of emotional abuse of the child had been sustained against S. The social worker in that case reported a great deal of erratic behavior by S., and described her as mentally, verbally and possibly physically abusive toward Mr. H. and his daughter. After being told that the emotional abuse allegation was being sustained, S. had Mr. H.s daughter write a letter saying that S. was not emotionally abusive to her. She had the child call her social worker and read the letter to her.

The social worker in this case concluded that although S. had completed most of her case plan, her recent erratic behavior, her dishonesty about taking her medication, the disputes with Mr. H. and the newly sustained emotional abuse allegation concerning Mr. H.s daughter made it unsafe for S.s children to return to her home. The report noted that S.s children all have behavioral and medical needs, and that they could not be permitted to be re-exposed to domestic violence, particularly with their mother as the perpetrator. The report further noted that S. had not demonstrated a significant period of stability even with the new medication. For these reasons, DPSS recommended terminating reunification and developing a permanent plan.

The court terminated reunification services and set a permanency planning hearing pursuant to section 366.26. Before that hearing, S. filed a petition for modification of the order terminating reunification services as to each child, pursuant to section 388. (The petitions are discussed in detail below.) At the section 366.26 hearing, the court held a hearing on the modification petitions and denied them. The court then terminated parental rights as to C., finding that C. was adoptable and that termination of parental rights would not be detrimental to C. and that adoption was in her best interest. It ordered DPSS to refer C. for adoptive placement, giving preference to the pending application for adoption by C.s current caretakers.

S. filed a timely notice of appeal.^[5]

LEGAL ANALYSIS

THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE PETITION FOR MODIFICATION

Section 388 permits a parent or other interested party to petition for modification of a juvenile court order. ( 388, subd. (a).) At a hearing on a section 388 petition, the juvenile court must determine whether the petitioner has shown by a preponderance of the evidence that there has been a change of circumstances demonstrating that the proposed modification is in the childs best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The decision to grant or deny the petition is committed to the discretion of the juvenile court. A reviewing court will not reverse the juvenile courts decision in the absence of a clear abuse of discretion. (Id. at pp. 415-416.)

Here, S. sought an order reinstating services and returning all four children to her custody. The court found that she had made a prima facie showing sufficient to warrant a hearing. At the hearing, S. presented evidence purporting to show that she had addressed the problem which had led the court to terminate her services at the 18-month review hearing. She had engaged in regular counseling sessions and had made [s]ome progress toward [a] positive lifestyle. Her psychiatrist reported that she had made progress. She had seen the psychiatrist regularly since June 2007, and the psychiatrist had been working to fine tune S.s medications. She reported that S. seem[ed] to be doing well on her current regimen. She had consistently tested clean for alcohol and illegal substances. She had also apparently continued regular visitation with all of the children.

The court found that S. had demonstrated fair progress and concluded that she had satisfied the changed circumstances prong of section 388. However, the court concluded that S. had not shown that vacating the section 366.26 hearing and reinstating reunification would be in the childrens best interest. The court noted that services had been provided to the family for eight years without resulting in reunification. The court also noted that C. and A. had both expressed their desire to be adopted by their current caretakers. Accordingly, the court denied the petitions.

S. now argues that the court abused its discretion because it failed to properly evaluate the best interest prong of the modification request. She contends that the court failed to take into account that the primary goal of the juvenile dependency scheme is family preservation and failed to take into account the childrens close attachment to S. and to each other and the benefit each child would derive from maintaining both the sibling relationship and the relationship with their mother. She contends that the court failed take into full consideration how granting the modification petition would lead to the maintenance of the parental and sibling attachments.

We reject S.s contention that the courts supposed failure to take the family bonds into account amounts to an abuse of discretion. Although family preservation is indeed the primary goal of dependency proceedings in their initial stages, as S. asserts, once reunification services have been terminated and the case has reached the permanency planning stage, the emphasis shifts from family preservation to the needs of the child for permanency and stability. At that point, there is a rebuttable presumption that continued placement of the child is in the childs best interest. Indeed, the childs need for continuity and stability 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. (1994) 7 Cal.4th 295, 317.) Accordingly, although the childs bond to the parent is a factor in evaluating a request for reinstatement of reunification services, it is only one of many factors which may be relevant in any particular case. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.) The nature and strength of that bond will not, in most cases, be dispositive in determining the childs best interests. (Id. at p. 530.) Rather, the gravity of the problem which led to the dependency and the reason that the problem was not overcome by the time of the final review hearing must also be taken into account. (Id. at pp. 530-531.)

Although S. gives a detailed analysis of the evidence which, she contends, supports a finding that the requested modification was in the childrens best interest, she does not demonstrate that the court abused its discretion. A court abuses its discretion only if its decision exceeds the bounds of reason. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) 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. [Citations.] (Id. at p. 319, original quotation marks corrected.) A reviewing court should not interfere unless it finds, under all of the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the challenged order. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).)

Here, the evidence does support the inference that S. loves her children and that the children share a bond both with her and with each other. The reports considered by the court also demonstrate, however, that despite the extraordinary amount of time and resources devoted to reunification, including S.s own efforts, S. had simply not been able to overcome her problems sufficiently to be able to provide a stable and secure home for her daughters. The addendum report dated January 24, 2008, includes a chronology of the services S. received over a period of eight years for these children. It shows that even after the first dependency was terminated, S. continued to live in an abusive relationship with the B. childrens father. Domestic violence was an issue in the first dependency, and the current dependency petition was filed after an incident of domestic violence involving S., her husband and C. After the current dependency petition was filed, a psychological evaluation reported that S. continued to have unresolved mental issues and that she was inconsistent in taking her medications. This, too, was an issue in the prior dependency. In the prior dependency, S. did not complete her case plan until after services had been terminated. She then got her act together, completed the plan and successfully petitioned the court to reinstate reunification, ultimately obtaining the return of the children. She is repeating that pattern in this case.

During the current dependency, S. lived in a mutually abusive relationship with a boyfriend, and she and the boyfriend were both the subject of sustained allegations of verbal, psychological and physical abuse against the boyfriends 12-year-old daughter, who lived with them until she was removed by DPSS and placed in a legal guardianship with her grandmother.

In the addendum report, the social worker described S.s continuing failure to provide appropriate parental supervision of her daughters. The report gave examples of S. influencing the children to cover up situations which could negatively affect her reunification efforts and her failure to correct inappropriate behavior by the children. It also described examples of S.s petty favoritism toward her children at the expense of her boyfriends daughter. A glaring recent example of S.s inappropriate parenting occurred on February 20, 2008, just a month before the hearing on the modification petitions. On that date, at a supervised visit between S. and the children, nine-year-old J.B. had $175 in cash in her purse. She told everyone that it was her allowance. Rather than questioning her daughter about the very large sum of money, S. borrowed $25 from J.B. for bus fare and to buy a birthday present for her boyfriend. S. also undermined the childrens ability to adjust to their placements by constantly telling them that they would be returning home with her.

S. also continued to be inconsistent about taking her psychiatric medications. It was her failure to take her medication which led to the incident which precipitated the termination of services. The social worker was aware that S. had stopped taking her medication on two occasions during 2007.

The social worker stated that she had worked intensively with the family, but that S. had not succeeded in providing and maintaining a safe, stable and nurturing home for her children. Despite having completed some of her programs, including parenting and anger management classes, S. continued to engage in domestic violence and continued to exhibit behavior which reflected her lack of appreciation of the effect of her behavior on the children. Despite her psychiatrists efforts over a period of a year and a half, S. did not appear to have benefitted. The social worker concluded by saying that although S. does appear to love the children, she has demonstrated over and over her inability to care for them on an on-going basis.

C. is a medically fragile child who suffers from cerebral palsy and developmental delay. She is an Inland Regional Center client and has been in a foster home suitable to her needs and separate from her sisters from the inception of the dependency. S. presented no evidence that she was capable of meeting C.s special needs, and the reports give no indication that she has the ability to do so.

The court took all of the reports and evidence into consideration and concluded that S. failed to meet her burden to show that it would be in the childrens best interest to resume reunification efforts. That finding is amply supported by the evidence discussed above. There was no abuse of discretion.

NEITHER THE PARENTAL RELATIONSHIP EXCEPTION NOR THE SIBLING RELATIONSHIP EXCEPTION BARS TERMINATION OF PARENTAL RIGHTS AS TO C.

Section 366.26 subdivision (c)(1) provides, in part, If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. Thus, the Legislature has expressed its preference for adoption in all cases in which a court finds that a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Section 366.26 provides, however, that the court may chose not to terminate parental rights if it finds a compelling reason for determining that termination would be detrimental to the child due to one or more enumerated circumstances. ( 366.26, subd. (c)(1)(B).) These circumstances include the so-called parental relationship exception and the sibling relationship exception. ( 366.26, subd. (c)(1)(B)(i), (c)(1)(B)(v).) If the court finds a compelling reason not to terminate parental rights, it may select a permanent plan of guardianship or long-term foster care rather than adoption. ( 366.26, subd. (c)(4)(A).)

S. contends that we must reverse the order terminating her parental rights to C. because the juvenile court incorrectly determined that neither of those exceptions applied. We review such a determination for abuse of discretion.^[6] (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

The Sibling Relationship Exception

Section 366.26, subdivision (c)(1)(B)(v) permits the court not to terminate parental rights if there would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. S. asserts that the exception applies because C. had a strong bond with her sisters and was vocal about wanting to maintain her relationship with her sisters.

In order for the sibling relationship exception to apply, the court must find that terminating parental rights will substantially interfere with the childs relationship with her siblings. S. does not explain how, under the circumstances of this case, the decision to terminate parental rights would affect C.s relationship with her siblings. Because of her special needs, C. has been in a placement separate from her sisters from the inception of the dependency proceedings. There is nothing in the record that suggests that this would have changed if the court had decided not to terminate S.s parental rightsthere is no suggestion, for example, that if S.s rights were not terminated, C. would somehow be placed in the same home with her sisters. On the contrary, there was no prospect of a home which could or would take all of them. Nor is there anything in the record that suggests that C.s visitation with her siblings would change upon her adoption. In the absence of any evidence that C.s relationships with her siblings would be affected in either event, the court could not have abused its discretion by failing to apply the exception.

The Parental Relationship Exception

Section 366.26, subdivision (c)(1)(B)(i) permits the court not to terminate parental rights if the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. S. contends that because she regularly visited C. and thereby nurtured a beneficial relationship with her daughter, the court was precluded from terminating her parental rights.

Once the juvenile court determines that the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child. (In re S.B. (2008) 164 Cal.App.4th 289, 297.) It is not enough to show that the child derives some benefit from the relationship with her parent; the parental relationship exception applies only in an exceptional case in which there are compelling reasons sufficient to overcome the strong statutory preference for adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) In addition, the exceptions provided for in section 366.26, subdivision (c)(1)(B) do not mandate that the court choose a permanent plan other than adoption if certain conditions exist; on the contrary, subdivision (c)(1)(B) merely permits the court to do so if the court determines that there is a compelling reason not to terminate parental rights. (In re Celine R., supra, 31 Cal.4th at p. 53.) This is, as noted above, a quintessentially discretionary decision. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) A reviewing court is empowered to find an abuse of discretion only if no reasonable judge would have made the challenged decision. (Ibid.) Accordingly, it is only in the rarest of cases that a reviewing court can say that the juvenile court abused its discretion by finding that the circumstances are not so exceptional as to compel the court to decide against termination of parental rights.

In order for the exception to apply, the parent must present evidence that continuing the parental relationship would promote[] 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.) The preference for adoption is overcome only if there is such a substantial, positive emotional attachment between the parent and child that the child would be greatly harmed by severing it. (Ibid.) S. argues, for the most part, that C.s ambivalence about being adopted is sufficient to demonstrate that severance of S.s relationship with C. would be detrimental to the child. We disagree. Over the course of the dependency, a period of nearly two years, C. expressed both a desire to be adopted by her foster family and a desire to return to her mother or to live with her siblings. By the time of the section 366.26 hearing, however, C., by then 10 years old, had come to realize that she preferred the stability of adoption to the back-and-forth life of foster care and visitation with S. C. made it clear that she understood that once she was adopted, she might not see her mother again. She testified that she was [k]ind of happy and kind of sad about being adopted, but that she was okay with the idea that she might not see her mother again. She was also very sad that she and her sisters were not in the same home, but she understood the reason for ither own medical needsand she was okay with that, too. The court concluded that C. did indeed understand what adoption entails and that C. had clearly expressed her desire to be adopted.

S. did not present any evidence below which would compel the conclusion that her relationship with C. promotes C.s well-being to such a degree as to outweigh the benefits that C. would gain from a stable, permanent adoptive home (In re Autumn H., supra, 27 Cal.App.4th at p. 575), and her attorney made only the most perfunctory argument with regard to the parental relationship exception. In the absence of any such evidence, we cannot say that the juvenile court abused its discretion by finding the exception inapplicable.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Gaut

J.

/s/ King

J.

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^[1]S. presents her argument with respect to the order denying the petition for modification as though it pertains to all four children. Her notice of appeal, however, expressly states that she is appealing as to C.B. only. We will construe her notice of appeal liberally as an appeal of the courts orders and findings as to all four children.

^[2]We will refer to C.B. and A.B. by their first initials only. We will continue to refer to J.J. and J.B. by both initials.

^[3]C.s father is not a party to this appeal.

^[4]All statutory citations refer to the Welfare and Institutions Code.

^[5]The recommended permanent plan for J.J. and J.B. is long-term foster care. The court continued the permanency planning hearing as to A. to permit completion of the adoption assessment for A.s prospective adoptive family.

^[6]We recognize that some courts apply a substantial evidence test. (See, e.g., In re L.Y.L. (2002) 101 Cal.App.4th 942, 951.) However, we agree with the court in Jasmine D.,that the decision required by section 366.26, subdivision (c)(1)(B)whether there is a compelling reason to conclude that termination would be detrimental to the childis a quintessentially discretionary determination and that abuse of discretion is the more appropriate standard of review. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)