In re E.M.








Filed 12/12/11 In re E.M. CA2/7





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re E.M. et al., Persons Coming Under the Juvenile Court Law.	B233342 (Los Angeles County Super. Ct. No. CK75707)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.M., Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County. Margaret Henry, Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Angela Williams, Deputy County Counsel, for Plaintiff and Respondent.
_____________________
D.M., the mother of five children, four of whom are the subject of this proceeding,[1] appeals from the juvenile court’s orders denying her petition for modification pursuant to Welfare and Institutions Code section 388[2] and terminating her parental rights pursuant to section 366.26. D.M. contends she demonstrated changed circumstances following the termination of family reunification services and her bond with her four older children warrants application of the parent-child relationship exception to the termination of parental rights provided in section 366.26, subdivision (c)(1)(B)(i). We affirm.

factual and procedural background

1. Pre-detention Proceedings

D.M.’s family was the subject of several referrals to the Los Angeles County Department of Children and Family Services (Department) alleging neglect and emotional abuse of the three older children from July 2006 to March 2008. None of those referrals resulted in formal action by the Department.
On April 26, 2008 the Department received another referral. On that date officers from the Los Angeles Police Department had responded to a domestic violence call at the family’s home. When the officers arrived, D.M. screamed that Michael Sr., the children’s father, had run down the street after assaulting her. The officers were unable to locate him and returned to the apartment. D.M., then eight months pregnant, was alone in the apartment and refused to give the officers any information about her three children, claiming she did not want the Department to be involved. She told the officers Michael Sr. had pushed her, punched her in the stomach and bitten her finger during an argument. Neighbors told officers D.M. and Michael Sr. fought constantly in front of the children and Michael Sr. was involved in a local gang and regularly used cocaine.
On April 29, 2008 a Department social worker interviewed D.M. about the incident. According to D.M., the children had been at a relative’s home in a neighboring apartment during the fight the previous night. She and Michael Sr. had argued because he had come home late. She denied he used cocaine and told the worker he was on parole and was required to take routine drug tests. D.M. minimized the violence, claiming she had shut her finger in the door and Michael Sr. had not hit her hard. She also insisted this was the first time he had ever been physically violent toward her. The same worker spoke with Michael Sr. on May 7, 2008. He denied assaulting D.M. and acknowledged he was on parole. He claimed he was willing to drug test for the Department. The worker also interviewed the children and saw no indications of physical abuse. The two older children denied their parents had been fighting.
Interviewed in May 2008 for psychological assessments ordered by the Department, both parents denied any current drug use and rejected offers of drug treatment and counseling. The agency providing the assessments questioned the credibility of both parents and recommended domestic violence and parenting classes, counseling and random drug testing. The agency further recommended Michael Sr. enter a drug treatment program and D.M. receive family preservation services. In June 2008 the Department received a criminal records report indicating Michael Sr. had a 2003 juvenile arrest for gang involvement and multiple subsequent arrests for simple possession and possession for sale of marijuana and cocaine. He had been convicted of possession of controlled substances in March 2004 and possession of marijuana for sale in April 2005. D.M. had been arrested in 2006 for possession for sale of marijuana, but the charges had been dismissed for lack of evidence.
In July 2008 D.M. and Michael Sr. agreed to participate in a voluntary family maintenance program including domestic violence counseling and parenting classes and requiring random drug testing. Because neither parent had appeared for previously scheduled drug tests, the Department directed both to enroll in drug treatment programs. At a meeting on September 25, 2008 the Department reminded both parents the court would become involved and the children would be detained if they did not comply with the terms of the program. Both parents signed the case plan and agreed to participate in the required programs.
On October 26, 2008 the Department received another referral reporting the children were being neglected, the parents were using drugs (marijuana and cocaine) and Michael Sr. was selling drugs. The referral also alleged continuing domestic violence. On October 31, 2008 a social worker spoke with Michael Sr.’s parole officer who reported Michael Sr. had tested positive for cocaine in January 2008 and had been jailed during the summer for parole violations. The officer said he knew Michael Sr. was still using drugs (although he had not had a positive test since January) and would be jailed again if he failed to complete a drug treatment program.
Based on the failure of both parents to comply with the voluntary family maintenance program, the Department decided to detain the children. Accompanied by police officers, Department workers attempted to detain the children on November 7, 2008, but the occupants of the apartment refused to allow them to enter. Later that day, D.M. called and denied she knew Michael Sr. had not complied with the conditions of his parole and claimed she had recently separated from him and did not know where he was. The Department decided to give D.M. another chance. The voluntary family maintenance program was revised to bar Michael Sr. from having any contact with the children until he had spoken to a Department social worker and to require D.M. to enroll in all programs within a week. D.M. agreed to comply with the revised plan.
On December 10, 2008 the Department received yet another referral, this time alleging Michael Sr. had beaten D.M. badly two days earlier in front of the children. The police had been called, but D.M. refused to press charges. The caller claimed D.M. regularly left the children with Michael Sr. while she went to work and he often left them alone to sell drugs. Police records indicated they had been called to the apartment on November 28, 2008 after Michael Sr. had punched D.M. in the face, again on December 5, 2008 and twice on December 8, 2008.
The Department again decided detention of the children was necessary and asked D.M. to bring them to the office for an emergency meeting on December 16, 2008. When the family arrived, the Department detained the children and scheduled a detention hearing for December 19, 2008.

2. The Detention and Jurisdiction Hearings

On December 19, 2008 the Department filed a petition under section 300 alleging the children were at risk of serious physical harm under subdivision (a) based on their parents’ history of violent altercations, including the events of April 26, 2008 and November 28, 2008, and their parents had failed to protect them within the meaning of subdivision (b) because of their violent interactions and history of drug and alcohol abuse. The children were placed in foster care. At the detention hearing Michael Sr. was found to be the presumed father of the children; and both parents were referred to anger management, domestic violence and parenting classes and ordered to participate in substance abuse counseling (with random drug testing) and individual counseling.
A report prepared for the jurisdiction hearing stated D.M. herself had been in the foster care system for more than 11 years as a child due to her mother’s drug abuse. She had been in a relationship with Michael Sr. for seven years and had little insight into the danger posed to her children by the violence and drug abuse in their relationship. Although she had obtained a domestic violence restraining order against Michael Sr. in October 2008, she did not take steps to enforce it and allowed him to stay at the apartment. He had assaulted her again on December 24, 2008, giving rise to another referral to the Department. Nevertheless, she was committed to reunifying with her children. Her first few visits with the children, which were monitored, had been appropriate; and the children appeared to be in good physical health.
At the January 8, 2009 jurisdiction hearing the court sustained all counts except for the allegation drug abuse by D.M. had endangered the children. D.M. was ordered to undergo domestic violence and individual counseling and enroll in parenting classes. All visits were to be monitored, but the Department was granted discretion to liberalize the conditions of visitation if warranted. The court set a six-month review hearing under section 366.21, subdivision (e), for July 9, 2009.

3. Judicial Review Hearings

a. The six-month review hearing

For the six-month review hearing scheduled for July 9, 2009, the Department reported D.M. had completed a parenting class and was continuing to attend a domestic violence program and participate in individual counseling. She had progressed to unmonitored weekly visits of three hours with the children, who were well-bonded to her. The two older children confirmed they wanted to return home. The Department stated that, if D.M. completed her programs, the Department would consider returning the children to her care. Because the children did not appear at the hearing, the six-month review was continued to July 23, 2009. In a last-minute information the Department reported it was considering unmonitored overnight visitation for the children with D.M. Following the July 23, 2009 hearing, at which she was found to be in compliance with her case plan, the case was set for a 12-month review (§ 366.21, subd. (f)) on January 21, 2010.

b. The 12-month review hearing

During fall 2009 D.M. referred the Department to a member of her extended family who had agreed to provide foster care for all four children in Palmdale. The children had previously been living in two separate placements paired by age. By the time of the 12-month review hearing, the children had been placed with the family member and were doing well. D.M. had continued unmonitored day visits with the children but had moved from her apartment and had not been approved for overnight visits because her housing situation was not yet stable. In its report for the January 21, 2010 hearing, the Department expressed concern about D.M.’s effort to locate appropriate housing for the family. Based primarily on this concern, and notwithstanding the fact D.M. had completed the classes and counseling programs previously ordered, the Department recommended family reunification services be terminated and permanency planning begin.[3]
At the review hearing the court found D.M. had complied with her case plan, ordered additional family reunification services and directed the Department to assist D.M. in her search for housing. The court set a permanency plan hearing (§ 366.22) for July 22, 2010.

c. The permanency planning period and hearing

Soon after the 12-month review hearing, the children were replaced with their previous separate caregivers. D.M. had found a one-bedroom apartment near her old apartment but had little furniture and no beds for the children. On February 3, 2010 the Department received a referral alleging D.M. had been smoking marijuana and drinking alcohol during an unmonitored visit with the children at her home. A similar referral was received on March 23, 2010 from a caller who reported D.M. was using drugs when she when she had unmonitored visits with the children on weekends. The caller also alleged D.M. knew of ways to clean drugs out of her system before a drug test and recommended surprise testing. Based on these referrals, the Department directed D.M. to drug test pending the next court hearing. When she refused, the Department withdrew its consent for unmonitored visits.
Efforts to contact D.M. in April, June and early July failed. On July 14, 2010 the Department learned D.M. had a new boyfriend, but she refused to identify him to allow the Department to determine whether he had a criminal record. D.M. also reported she had not yet obtained beds for the children but claimed they were on layaway and would be available on August 16, 2008. The Department again recommended the court terminate her reunification services and set the matter for a hearing to consider termination of parental rights (§ 366.26).
At the permanency plan hearing on July 22, 2010, however, the court declined to terminate reunification services, ordered D.M. to drug test every two weeks and continued the hearing to August 26, 2010 to allow D.M. to obtain beds for the children. Department social workers met with D.M. on August 10, 2010 and agreed to recommend reunification at the next court hearing pending the results of her drug tests and preparation of the apartment for her children.
Notwithstanding these accommodations, D.M. continued to miss scheduled drug tests and appointments with social workers. A Department worker visited her apartment on August 17, 2010 and was told by a cousin D.M. was not living there. Moreover, there were no beds for the children. The visit prompted a call from D.M. who insisted she was living in the apartment alone and the other adults had been visiting. Meanwhile, the caregiver for the two older children reported they had begun exhibiting angry and irritable behavior after visits with D.M. In light of D.M.’s failure to comply, the Department again recommended termination of reunification services and the setting of a section 366.26 hearing.
At the August 26, 2010 hearing D.M.’s counsel requested the matter be set for a contested hearing. The court ordered D.M. to drug test immediately and conditioned overnight visits on her ability to test negative. The hearing was continued to September 16, 2010. In the report for that hearing the Department noted D.M. was employed as an in-home health care provider and had obtained beds for the children, but the apartment was meagerly furnished. D.M. had tested clean on August 26, 2010 but had tested positive for marijuana on September 7, 2010. Again, the Department recommended termination of services.
At the September 16, 2010 hearing the court found D.M. to be in partial compliance with her case plan, terminated reunification services, set the matter for a section 366.26 hearing on January 13, 2011 and directed the Department to assess the relative in Palmdale for adoptive placement.

d. Section 388 petition and termination of parental rights

The children’s Palmdale relative was approved for adoptive placement of the children on November 8, 2010, and the children were replaced with her. On December 16, 2010 D.M. filed a section 388 petition alleging she had enrolled in an outpatient drug rehabilitation program and requesting the section 366.26 hearing date be vacated and she be granted an additional six months of reunification services. On January 5, 2011 the court set a hearing on the petition for January 21, 2011. On the eve of the section 366.26 hearing, however, the Department reported the home study for the proposed adoptive placement had not been completed and requested a continuance. The court vacated the pending section 388 hearing date and continued both matters to March 17, 2011.
In an interim review report dated January 21, 2011, the Department informed the court D.M. was pregnant and expected to deliver the baby in March 2011. Because of her delay in beginning a drug rehabilitation program (three months after her reunification services had been terminated) and the uncertainty of its outcome, the Department recommended denial of the section 388 petition.
A status review report dated March 17, 2011 described the children as thriving in their new home, which was large and well-furnished for their needs. The frequency of D.M.’s visits had declined, although she continued to speak to the children by telephone. The Department recommended termination of parental rights. A delay in the completion of the adoption home study again required the section 366.26 hearing be continued. An interim report prepared for the continued hearing stated two of the children had admitted in interviews with a worker they did not, or were unsure, they wanted to return to live with D.M. Their caregiver also reported D.M. had been inappropriate on the telephone with one of the younger children and had shunned him when she visited for the oldest boy’s birthday. When she left after that visit, D.M. reportedly told the children she would not be talking to them anymore.
The hearings on the section 388 petition and termination of parental rights were ultimately held on May 5, 2011. In preparation for the hearing, the Department reported D.M. was still enrolled in the drug rehabilitation program, although she had been absent for three weeks in March around the birth of her fifth child, D.T. She had consistently tested negative on all drug tests since December 2010. Department workers had met with D.M. about D.T.’s safety in April 2011 and had concluded D.T. could remain in D.M.’s care subject to her participation in a voluntary family maintenance program.
At the May 5, 2011 hearing the court first reviewed D.M.’s section 388 petition and concluded she had failed to demonstrate changed circumstances. Her progress in the drug rehabilitation program was promising but constituted only “changing circumstances . . . not changed.” The court also decided the interests of the children would best be served by their adoption and that they were strongly bonded to their proposed adoptive mother, who had been caring for them for most of the previous two years. Accordingly, the court found the children were adoptable and terminated the parental rights of D.M. and Michael Sr.

discussion

1. The Trial Court Did Not Abuse Its Discretion in Denying D.M.’s Section 388 Petition

Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstances and demonstrates modification of the previous order is in the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446; see Cal. Rules of Court, rule 5.570(e).)[4]
“A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Even if a parent is able to demonstrate a genuine change of circumstances, the parent must also “show that the undoing of the prior order” would be in the child’s best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) “After 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 interest of the child. [Citation.] 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 interest of the child.” (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
The juvenile court’s decision concerning a section 388 petition is reviewed for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) We may disturb the juvenile court’s exercise of that discretion only in the rare case when the court has made an arbitrary, capricious or “patently absurd” determination. (Id. at p. 318.) We do not inquire whether substantial evidence would have supported a different order, nor do we reweigh the evidence and substitute our judgment for that of the juvenile court. (Id. at pp. 318-319.)
D.M. contends she demonstrated the required change of circumstances because she had enrolled in a drug rehabilitation program and had tested clean on repeated drug tests administered throughout the program. Moreover, she could no longer be considered a danger to her older children because the Department had declined to detain her newborn, D.T. Nonetheless, the court reasonably viewed these developments as evidencing changing circumstances that had not yet become established over time. D.M. argues she had tested positive for marijuana on only one drug test during the previous three years; but there is ample evidence of continuing drug involvement throughout these proceedings; and she routinely failed to comply with the Department’s demand she submit to random drug tests. Her enrollment in the drug rehabilitation program only once it became clear her parental rights would likely be terminated is simply more evidence of her failure to confront and change the circumstances giving rise to the Department’s involvement. The juvenile court did not abuse its discretion in rejecting her section 388 petition.

2. The Court Did Not Err in Terminating D.M.’s Parental Rights

Section 366.26 directs the juvenile court in selecting and implementing a permanent placement plan for a dependent child. The express purpose of a section 366.26 hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) Once the court has decided to end parent-child reunification services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 [“[i]f the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child.”]; see In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found unsuccessful, the state has a “compelling” interest in “providing stable, permanent homes for children who have been removed from parental custody” and the court then must “concentrate its efforts . . . on the child’s placement and well-being, rather than on a parent’s challenge to a custody order”].) When the court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate one of six enumerated exceptions applies. (§ 366.26, subd. (c)(1)(B); see In re Matthew C. (1993) 6 Cal.4th 386, 392 [when child adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is relatively automatic].)
To satisfy the subdivision (c)(1)(B)(i) exception to termination asserted here by D.M., a parent must prove he or she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i); see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden to show that the statutory exception applies”].) The “benefit” prong of the exception requires the parent to prove his or her relationship with the child “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 [“the 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”].) No matter how loving and frequent the contact, and notwithstanding the existence of an “emotional bond” with the child, “the parents must show they occupy ‘a parental role’ in the child’s life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; see In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The relationship that gives rise to this exception to the statutory preference for adoption “characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.” (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The juvenile court’s conclusion the parent-child relationship exception was unavailable to D.M. is amply supported by the record. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [both substantial evidence and abuse of discretion standards of review apply to juvenile court’s determination whether the parental relationship exception to adoption applies; whether a beneficial relation exists is reviewed for substantial evidence; whether such a relationship constitutes a compelling reason for concluding termination would be detrimental to the child is reviewed for abuse of discretion].) Other than her plainly heartfelt assertions she loved the children and they would miss their extended family, D.M. failed to offer any evidence the children would benefit more from a continued relationship with her than from the stability and permanence offered by their prospective adoption. Although the court had repeatedly delayed terminating family reunification services and had given D.M. every opportunity to establish a viable living arrangement for the children, D.M. repeatedly failed to meet the established deadlines. And, while it is true she had visited regularly with the children and they enjoyed her visits, she did not assume any parental role; there was no evidence of any parental decisionmaking or involvement in their young lives.[5] To be sure, it is difficult for any parent to assume a parental role in the context of monitored visitation, but the Department revoked unmonitored visits when it received several referrals alleging D.M. was abusing the privilege by using drugs and leaving the children in the care of others.
Absent any evidence D.M. had such a vital role in the children’s lives, the court’s conclusion the best interests of the children would be served by their adoption is unassailable. The Department (and the court’s) laudable effort to give D.M. ample time to rebuild her life in a manner that would protect the needs of the children had to, at some point, give way to the actual needs of those children for stability. After three years of Department intervention and nearly two away from their parents, the children had readily embraced their adoptive family. While Michael Jr. had demonstrated angry behavior undoubtedly rooted in the shifting circumstances of his life and the loss of his parents, his best interests, like those of his siblings, clearly lay in the security offered by his new home. The trial court did not err in terminating D.M.’s parental rights and choosing adoption as the appropriate plan for the children.

disposition

The orders of the juvenile court are affirmed.



PERLUSS, P. J.

We concur:



WOODS, J. ZELON, J.

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