In re Eric M.
Filed 9/28/10 In re Eric M. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re ERIC M. et al., Persons
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
JENNIFER W.,
Defendant and Appellant.
D057271
(Super. Ct.
No. NJ13891A-B)
APPEAL from
orders of the Superior Court
of San Diego
County, Michael Imhoff, Juvenile Court Referee. Affirmed.
Jennifer W.
appeals juvenile court orders terminating her parental rights to her children, Eric M.,
Jr., (Eric) and Thomas M., and an order denying her Welfare and Institutions
Code section 388 petition. (Statutory
references are to the Welfare and Institutions Code.) She contends the court abused its discretion
by denying her section 388 petition and erred by terminating her parental
rights because she showed the beneficial parent-child relationship exception to
termination of parental rights and adoption of section 366.26, subdivision
(c)(1)(B)(i). We affirm the orders.
FACTUAL AND
PROCEDURAL BACKGROUND
On April
24, 2008, the San Diego County Health and
Human Services Agency (the Agency) petitioned on behalf of 21-month-old
Eric and four-month-old Thomas under section 300, subdivision (b), alleging
their parents, Eric M., Sr., (the father) and Jennifer, used marijuana and
heroin and had a history of drug use, domestic violence and parental neglect,
and dangerous drugs were found within Eric's reach. The petitions also alleged the family home
was severely filthy and unsanitary. The
father and Jennifer were arrested and charged with willful child endangerment. The children were detained in foster care.
Jennifer
said she had been smoking marijuana every day for the past year and began using
heroin after Thomas was born. She said
there was domestic violence in her relationship with the father. The father said he had tried numerous
drugs. He last used heroin and cocaine
the day he was arrested.
On June 25, 2008, the court found the
allegations of the petitions to be true, declared the children dependents of
the court and placed them in foster care.
It ordered Jennifer and the father to comply with their case plans and
participate in the Substance Abuse Recovery Management System.
The father
did not comply with his services plan requirements. Jennifer entered a residential drug treatment
program on May 28, 2008,
and remained there until September 12, when she was discharged for violating
program rules. She reunited with the
father and relapsed into drug use. On
October 8 she entered treatment at a different facility, but was discharged in December
after she was arrested for petty theft.
Then she entered treatment again.
She had unsupervised visits with the children. The children thrived in foster care.
At the
six-month review hearing on February
13, 2009, the court continued the children in out-of-home care and
continued services for the parents.
In the
12-month hearing report dated June 23,
2009, the social worker reported Jennifer had been discharged from residential treatment again. She had been leaving the facility at night
without permission and had struggled with program requirements. She moved to live with the maternal
grandmother and had a part-time job. The
father was participating in drug treatment after being ordered by the criminal
court to do so. On May 27 he left a
message for the social worker that Jennifer was hanging around the bar where he
worked, drinking all day and "running amok."
In June
2009 the court granted the Agency's section 388 petition requesting Jennifer's
visits be supervised. In July Jennifer
was arrested for driving under the influence of alcohol or drugs and on July 22
had a positive test for marijuana. She
failed to test on July 27 and August 4.
At the
12-month hearing on September 17, 2009,
the court found returning the children to parental custody would cause a
substantial risk of detriment and there was no substantial probability of
return by the 18-month date. It found
reasonable services had been offered or provided, terminated services and
scheduled a section 366.26 hearing.
In the
adoption assessment report dated January
14, 2010, the social worker reported the children were doing well
in the care of their foster parents, with whom they had lived since June
2009. These caregivers were committed to
adopting the children and there were 16 additional families interested in
adopting two children with the children's characteristics. Jennifer had been released from incarceration
and had resumed regular supervised visits with the children. The maternal grandmother accompanied her on
these visits. Jennifer brought enjoyable
activities for the children and visits were pleasant and appropriate. When visits ended, the children happily
returned to the foster mother. Both boys
acted out in the foster home after visits.
On February 18, 2010, Jennifer
petitioned under section 388, requesting custody or continued services and
unsupervised visits. She argued,
although she had been through a series of relapses and five recovery programs,
she was now truly committed to maintaining sobriety. She said she had gained maturity, was active
in Narcotics Anonymous and had a new sponsor, and it was in the children's best
interests to grant her petition.
The social
worker said Jennifer's continuing efforts were admirable, but her most recent
situation followed her pattern of making progress and then backsliding. She said Jennifer's visits with the children
continued to go well and they enjoyed spending time with her, but their
relationships with her were like those with a loving extended family member. When the social worker asked Eric how he
liked living in his foster home, he said he wanted to live there forever.
On March 2, 2010, at the combined hearing
on Jennifer's section 388 petition and the section 366.26 hearing, Jennifer
testified she wanted the children returned to her care or to be given more time
to reunify. She had participated in five
treatment programs and each time had relapsed after about four months in a
program. She had been in her current program
for three months. She believed this time
it would be different because she was more serious and confident about her
treatment and had an outstanding sponsor.
She was on the first of 12 steps of recovery.
After
considering the evidence and argument, the court denied Jennifer's section 388
petition. After hearing additional argument,
it found Eric and Thomas were likely to be adopted and none of the statutory
exceptions to termination of parental rights and adoption applied. It terminated parental rights and referred
the matter for adoption.
DISCUSSION
I
Jennifer
contends the court abused its discretion by denying her section 388
petition. She argues she proved she had
made permanent changes that benefitted the children and it was in their best
interests that the family remain together.
After a
court has terminated reunification services, "the focus shifts to the
needs of the child for permanency and stability." (In re
Hashem H. (1996) 45 Cal.App.4th 1791, 1800.) However, "[e]ven after the focus has
shifted from reunification, the [statutory] 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 custody status." (In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
A change of
circumstances may be brought to the court's attention through a petition under
section 388. Section 388 provides in
part:
"(a) Any
parent or other person having an interest in a child who is a dependent child
of the juvenile court . . . may, upon grounds of change of circumstance or new
evidence, petition the court in the same action in which the child was found to
be a dependent child of the juvenile court . . . for a hearing to change,
modify, or set aside any order of court previously made or to terminate the
jurisdiction of the court . . . ."
[¶] . . . [¶]
"(d) If it
appears that the best interests of the child may be promoted by the proposed
change of order, . . . the court shall order that a hearing be held . . .
."
To gain the
relief sought in a section 388 petition, the petitioner must show both a change
of circumstances or new evidence and that the change sought is in the minor's
best interests. (§ 388; Cal. Rules of
Court, rule 5.570; In re Michael B.
(1992) 8 Cal.App.4th 1698, 1703.) A
petition is liberally construed in favor of its sufficiency. (In re
Angel B. (2002) 97 Cal.App.4th 454, 461.)
The petitioner bears the burden of proof, however, to make both
showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
In
519, 530-532, the appellate court listed three factors a court might consider
when determining if a child's best interests would be served by granting a
section 388 petition: (1) the
seriousness of the problem that led to the dependency and the reasons for any
continuation of the problem; (2) the strength of the bond between the child and
the caretaker; and (3) the degree to which the problem may be removed and the
degree to which it has been removed.
"The
[section 388] 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." (
415.) A reviewing court will not disturb
a court's discretionary ruling in a dependency proceeding " ' "unless
the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination [citations]." '
" (In re Stephanie M., supra,
7 Cal.4th at p. 318.)
Jennifer
has not shown an abuse of the court's discretion. She did not show a true change of
circumstances or that the change she sought would serve Eric's and Thomas's
best interests.
Jennifer
had a history of entering a treatment program and maintaining sobriety for a
time and then relapsing. During the
nearly two years of the children's dependencies, she had followed this pattern
four times. By the section 366.26
hearing she had been in a drug treatment program for only three months and was
on step one of the 12-step program. She
did not show changed circumstances as required by the statute.
Nor did she
show that returning the children to her custody or offering her additional
services would serve their best interests.
The reasons for the children's dependencies were serious, the parents'
substance abuse, domestic violence and neglect of the children. During the dependency period, Jennifer
continued to lead an unstable life; she was in and out of treatment and was
arrested twice. Eric and Thomas had
lived with their prospective adoptive parents for eight months. This family had provided excellent,
appropriate care and was committed to adopting them, and Eric and Thomas had
strong bonds with them. By the time of
the hearing, Eric was three years old and Thomas was two years old. They had been in foster care for 22 months
and needed the stability of a permanent home.
Jennifer has not shown the court abused its discretion by denying her
section 388 petition.
II
Jennifer
contends the court erred by not finding the beneficial parent-child
relationship exception to termination of parental rights and adoption applied
to prevent terminating parental rights.
Adoption is
the permanent plan favored by the Legislature.
(In re Autumn H. (1994) 27
Cal.App.4th 567, 573.) A child has a
compelling right "to have a placement that is stable, permanent, and that
allows the caretaker to make a full emotional commitment to the
child." (In re Marilyn H., supra,
5 Cal.4th at p. 306.) If the court finds
by clear and convincing evidence that a child is adoptable, it becomes the
parent's burden to show that termination of parental rights would be
detrimental to the child because of a specified statutory exception to
termination of parental rights and adoption.
(In re Autumn H.,
statutory exception applies. (
823, 826.)
Under the
exception of section 366.26, subdivision (c)(1)(B)(i), the parents are required
to show termination of the relationship would be detrimental to a child in that
"[t]he parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship." The parents must show more than an emotional
bond or that the parents and the child find the visits pleasant. (In re
Derek W., supra, 73 Cal.App.4th
at p. 827.) The parents must show they
occupy a parental role in the child's life.
(Ibid.) They must prove their relationships with the
child are of such significance that the child would be greatly harmed by termination
of their parental rights. (
We review
the sufficiency of the evidence to support the lower court's ruling on the
applicability of the beneficial parent-child relationship exception to adoption
by examining the evidence in the light most favorable to the order, giving the
prevailing party the benefit of every reasonable inference and resolving all
conflicts in support of the order. (
Substantial
evidence supports the court's determination Jennifer did not meet the requisite
burden of proof. She did not occupy a
parental role. The social worker
described her as like an extended family member, with whom Eric and Thomas had
enjoyable visits. During the nearly two
years of the children's dependencies, Jennifer had continued to relapse into
drug abuse and made only minimal progress.
Meanwhile, the children were in need of a stable, permanent home. " ' "[C]hildhood does not wait for
the parent to become adequate." ' "
(In re Casey D. (1999) 70
Cal.App.4th 38, 47.) Jennifer did not
show the benefits of maintaining her relationships with Eric and Thomas
outweighed the benefits they would gain from an adoptive home or that they
would be greatly harmed by severing the relationships.
Jennifer
relies on In re S.B. (2008) 164
Cal.App.4th 289, a case from this court, to support her argument the court
should have applied the beneficial parent-child relationship exception. In In
re S.B., we reversed the trial court's finding that the beneficial
parent-child relationship exception did not apply after concluding the child
would be greatly harmed by loss of the significant positive relationship she
shared with her father. The father had
complied with every aspect of his case plan, frequently visited his daughter
and was devoted to her. She loved him
and wanted to live with him. (
showing. Moreover, while factual
comparisons between cases provide insight, these comparisons are not
dispositive. The determination on appeal
is whether there is substantial evidence to support the trial court's findings
that the beneficial parent-child relationship exception did not apply. We conclude that on the facts of this case,
the court's findings are fully supported.
DISPOSITION
The orders
are affirmed.
McINTYRE,
J.
WE CONCUR:
McCONNELL, P. J.
AARON,
J.
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