In re J.H.

Filed 5/16/08 In re J.H. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Appellant C.H., mother of J.H. (the minor), appeals from an order of the juvenile court terminating parental rights (Welf. & Inst. Code,^[1] 366.26, 395). She contends the court abused its discretion in denying her petition to modify its order terminating reunification services ( 388), and further that the evidence was insufficient to support the courts order terminating parental rights. ( 366.26.) We shall affirm the juvenile courts orders.

FACTUAL AND PROCEDURAL BACKGROUND

The minor, a newborn, was placed into protective custody on November 7, 2006. The Department of Health and Human Services (the Department) filed a petition alleging appellants failure to protect the minor in that, due to appellants substance abuse problem, both she and the minor tested positive for amphetamines at the time of the minors birth in November 2006. ( 300, subd. (b).) The petition further alleges appellants prior abuse or neglect of the minors half siblings,^[2]J.H.2 and J.H.3,^[3]asserting that, in 2004, the minors half sibling, J.H.2, had also tested positive for amphetamines at birth and that, one year later, both J.H.2 and J.H.3 were adjudicated dependents of the juvenile court due to appellants substance abuse. ( 300, subd. (j).) As a result of appellants failure to participate in or complete reunification services in those cases, services were terminated in January of 2006. On August 18, 2006, appellants parental rights were terminated with respect to the minors two half siblings who, at the time of the minors detention, were in the process of being adopted by their maternal grandmother.

At the November 13, 2006 detention hearing, the court ordered the minor detained. Appellant was allowed visitation and offered reunification services. Appellant immediately contacted the Department to inquire about visitation, substance abuse treatment services and an assessment for alcohol and other drugs (AOD). The social worker scheduled an interview and referred appellant for an AOD assessment and drug testing.

During her initial interview with the social worker on November 15, 2006, appellant said she began using methamphetamine when she was 20 years old, using it daily for approximately one year. When she and newborn J.H.2 tested positive, she stopped using, began treatment and remained clean for approximately 10 months, only to begin using again regularly. She stopped using again in March 2006 when she realized she was pregnant, and abstained from use until one day prior to the birth of the minor. She denied any methamphetamine use since that time. Appellant indicated the minors father was a former coworker named Marco, but she had no additional information to either identify or locate him.

Appellant also discussed the prior dependency cases involving the minors two half siblings and explained that, because the two half siblings were placed with appellants mother (the minors maternal grandmother), she had no place to stay and was living on the streets. She did not participate in reunification services and drug tested only sporadically, and said she was not taking medication prescribed for her bi-polar disorder and attention deficit disorder (ADD) because she did not have medical insurance. Appellant confirmed, however, that with respect to the minors case, she had already completed an AOD assessment, registered with Specialized Treatment and Recovery Services (STARS) and begun residential treatment at the Veterans Resource Center (VRC), a 90-day residential treatment program which provides clients with 24-hour supervision.

The November 30, 2006 jurisdictional/dispositional report noted that appellant was compliant with services and doing pretty well. When she was admitted to residential treatment, she tested positive for codeine, for which she had a valid prescription, but otherwise tested negative for amphetamines.

The Department argued that, given her history of substance abuse and the termination of her parental rights over the minors half siblings, appellant was not entitled to reunification services pursuant to section 361.5, subdivisions (b)(10), (11) and (13).^[4] Arguing further that the best interest of the child exception under section 361.5, subdivision (c)^[5]did not apply, the Department recommended that the court deny services and order a permanent plan of adoption.

The December 26, 2006 addendum report addressed potential placement of the minor with the maternal grandmother, who was already caring for the minors two half siblings. The report concluded placement with the grandmother was not recommended given the Adoption Bureaus continuing concerns about appropriate child care and adequate supervision of the minors half siblings, particularly in light of a recent incident in which the oldest child was hospitalized after she overdosed on the grandmothers medication and nearly died.

At the December 29, 2006 jurisdictional hearing, appellant waived her right to contest jurisdiction and submitted the matter on the social workers report, requesting only that the matter be set for a contested dispositional hearing. The court sustained the allegations in the petition and declared the minor a dependent of the juvenile court. ( 300, subd. (b).)

At the contested dispositional hearing on January 30, 2007, Brenda Cline, appellants counselor at VRC, testified that appellant met with her five times per week and submitted regularly to random drug tests as required. Cline personally observed six to 10 visits between appellant and the minor. Cline confirmed that appellant was actively participating in the program, and that she had relapsed on January 13, 2007, several weeks prior to the hearing.

Appellant testified at the hearing as well, telling the court she had been diagnosed with bi-polar disorder, ADD, post traumatic stress disorder (PTSD) and social anxiety disorder and, although she was prescribed medications to address those disorders, she stopped taking them a year ago and had since lost insurance coverage to pay for them. Appellant acknowledged and took responsibility for her drug problem, and admitted having taken drugs during her pregnancy. She also acknowledged that she relapsed on January 13, 2007, noting that her daughter had just been placed in the hospital after overdosing on the grandmothers medication, and further acknowledged that her previous efforts at drug treatment were unsuccessful. Appellant said she was attending parenting classes and visiting with the minor twice weekly, each time for one hour.

The May 4, 2007 second addendum report noted that appellant was willingly participating in individual counseling and took responsibility for the removal of her children. She completed seven of 10 parenting classes and was scheduled to complete the remaining sessions within approximately two weeks. Appellant was diagnosed with bi-polar disorder and depression and said to have a polysubstance dependence. She was prescribed Wellbutrin and Depakote. According to the report, appellant graduated from residential treatment on April 19, 2007, and moved to transitional clean and sober supportive housing where she will continue to participate in aftercare services that will consist of relapse prevention, individual counseling, case management, parenting classes and therapy. With the exception of the relapse, appellant was compliant with her substance abuse treatment program and testing negative for amphetamines.

The report notes two visits between appellant and the minor in November 2006, during which appellant was reportedly very gentle and affectionate, although the [minor] slept through most of the visit. After the minor was placed with New Millennium on January 10, 2007, appellant maintained consistent visits with him twice a week for one hour at a time. Appellant was reportedly appropriate and attentive during the visits and very receptive to redirection when needed.

While commending appellant for her recent efforts and noting her previous 10-month period of sobriety, the Department nonetheless concluded that her extensive polysubstance dependence coupled with [her] past failures to remain clean and sober places the [minor] at risk for abuse and neglect, and she had not demonstrated her ability to maintain a clean and sober lifestyle for a significant period of time, particularly in light of the January 13, 2007 relapse. As such, the Department recommended denial of reunification services pursuant to section 361.5, subdivision (b).

At the continued hearing on May 15, 2007, the Department argued that appellant did not qualify for services based on her numerous failed attempts to rehabilitate. Appellants counsel countered that appellant had been going to counseling and taking her medication as prescribed and had been clean and sober for three and a half months, continuing her treatment even after the relapse. Counsel argued section 361.5, subdivision (b) did not apply, noting that the bond that had formed between appellant and the minor, coupled with appellants participation in services, was likely to prevent some kind of abuse.

The court found section 361.5, subdivision (b)(13) applied, but continued the hearing to allow the parties time to provide additional information regarding whether appellant would be entitled to services pursuant to the best interest of the child exception under section 361.5, subdivision (c).

In response to the courts request, the Department filed a third addendum report on June 1, 2007. The report noted that the minor had spent his entire seven months of life in foster care and received care and learned social attachment from his foster mother, with whom he had formed a bond. As a result, he is able to easily engage with friends and family, including his biological mother. The report noted further that, while appellant was visiting regularly and was attentive to the minors needs by changing his diaper and feeding him, and the minors face lights up and he reaches for [appellant] when she visits, the Department urged that was not evidence of a strong positive bond between a child and mother, it is more likely that the child has an attachment to a person who visits him twice per week for one hour at a time and is kind to him. Instead, it is his foster mother who is there when he cries to soothe him, feed him, bathe him, comfort him and nurture him. The report noted that the 44 total hours appellant spent with the minor during his short lifetime was not enough time to have a strong positive bond with anyone, and pointed out that appellant had never been up with [the minor] all night, soothing him, taking him to the doctor, helping him through his tremors caused by detoxing from drugs. The report also noted that, due to the minors young age and limited contact with appellant, the weekly visits did not create the type of bond required for purposes of section 361.5, subdivision (c). The Department concluded that, given appellants long history of substance abuse and her failed attempts to rehabilitate or maintain long-term sobriety, it was unlikely reunification services would prevent further abuse or neglect of the minor and, in the absence of a close bond between appellant and the minor, absence of reunification services would not be detrimental to the minor.

At the June 6, 2007 hearing, appellants counsel argued the bond between appellant and the minor was sufficiently strong to trigger the exception under section 361.5, subdivision (c). Counsel reiterated appellants progress, including the fact that she had not missed a visit with the minor since November 2006, she had taken responsibility for her drug problem and was receptive to redirection in parenting, she was regularly attending parenting classes and NA meetings and submitting to random drug tests twice a week (only testing positive for Hydrocodone for which she has a valid prescription), she completed a 120-day residential treatment program and had only relapsed once, and she was managing her various diagnosed disorders by taking medication as required. Counsel explained that the reason appellant was previously unsuccessful in treatment was because she was not taking her medication.

The juvenile court commended appellant for her efforts. However, noting that the minor had been in foster care since birth, the court found that appellants visitation, though regular and consistent, did not result in a bond such that providing services to appellant would be in the best interest of the minor. The court adopted the Departments recommendations, adjudicated the minor a dependent child of the juvenile court ( 300, subd. (b)), denied reunification services to appellant pursuant to section 361.5, subdivision (b)(13) and placed the minor on a permanent plan for adoption.

On October 16, 2007, appellant filed a motion seeking modification of the courts order terminating reunification services. ( 388.)

The Departments addendum report dated November 7, 2007, again commended appellant on her progress, but reminded the court of her extensive history of substance abuse and her failed attempts to rehabilitate, noting that termination of parental rights would not be detrimental to the minor given his general adoptability and the fact that his need for permanence outweighs any bond he has with [appellant]. According to the report, [w]hile [the minor] does appear to enjoy the visits, he certainly does not cry when the mother leaves, and he is a very social baby, who enjoys his interactions with [appellant] and also with the agency social worker, supervising staff and other agency staff, whom [the minor] recognizes and trusts. The report also pointed out that the minor has never resided with appellant; instead, he has been in foster care since birth and has bonded with his caretaker, who consistently meets his needs and it is she to whom he holds his arms out to go to at the end of the visit.

On November 8, 2007, after hearing testimony from appellant and argument from counsel, the court denied appellants section 388 motion. Appellants counsel urged the court to apply the section 366.26, subdivision (c) and [sic] (a) exception. Rejecting that exception, the court found the minor adoptable and terminated appellants parental rights pursuant to section 366.26.

Appellant filed a timely notice of appeal.

DISCUSSION

I.

Denial of Section 388 Motion

Appellant contends the juvenile court abused its discretion by denying her request to modify its order terminating reunification services. We disagree.

Section 388, subdivision (a) provides, in part: Any parent . . . 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 the court previously made or to terminate the jurisdiction of the court.

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 best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).) The petitioning party has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48 (Casey D.).)

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. (Kimberly F., supra, 56 Cal.App.4th at p. 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) 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 childs need for prompt resolution of his custody status. (Marilyn H., supra, at p. 309.)

The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parents interests in reunification but to the needs of the child for permanence and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) 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 childs best interests. [Citation.] (Casey D., supra, 70 Cal.App.4th at p. 47.)

[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the courts discretion to decide that a childs interest in stability has come to outweigh the natural parents interest in the care, custody and companionship of the child. (In re Jasmon O. (1994) 8 Cal.4th 398, 419 (Jasmon O.).)

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. [Citation.] (Jasmon O., supra, 8 Cal.4th at p. 415.) It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . . (Kimberly F., supra, 56 Cal.App.4th at p. 522.)

Applying these principles to the circumstances before us, we conclude the juvenile court did not abuse its discretion. As evidence of changed circumstances, appellant submitted a declaration stating that she had been clean and sober since January 13, 2007, she completed residential treatment and was now living in a two-bedroom duplex which could accommodate the minor and provide appellant with continued services and support, she had nearly completed her parenting classes on her own in spite of the courts denial of reunification services, she continued to visit the minor regularly and a bond had been created between the two such that the child now recognizes [appellant] and cries when [appellant] leaves at the end of the visit, appellants family was fully supportive of her efforts, she had been compliant with her medical treatment since May 2007, she had been regularly attending individual counseling and was now stabilized mentally, and she had undertaken efforts to obtain employment.

As further evidence of change, appellant submitted a letter from the foster care agency attesting to the fact that appellant had maintained consistent visits with the minor, interacted with him in a manner that was positive and appropriate, was attentive to his physical needs (e.g., changing his diaper), focused on the visits without allowing interruptions from cell phone or breaks, talked and played with the minor and understands the signals for hunger as well as tired, and provided snacks for the minor and assisted him with eating. The letter also notes that the minor called appellant Mama.

Appellant urged that the modification would be in the best interest of the minor because she had devoted herself to becoming a good parent and there [was] no longer any issue of relapsing into her past behaviors as she recognizes the mistakes she made and has accepted responsibility for her choices and now knows what kind of behaviors are not good for her and her child. She emphasized the strong bond between herself and the minor, stating the child recognizes [appellant] and now cries when the visits are over.

At the hearing, appellant testified consistent with her declaration, and explained that her prior failure to rehabilitate was the result of her not taking medication for her disorders and not participating in counseling, both of which she is doing now. Appellants counsel argued the modification would be in the minors best interest given that visitation by appellant had been consistent for 10 to 11 months and there was currently no permanent placement for the minor.

The Department urged that circumstances were not changed, they were merely changing, and thus appellant had not met her burden under section 388. Counsel for the minor added that arrangements were being made for permanent placement, as the social worker was attempting to place the minor together with his two half siblings.

The court commended appellant for her efforts, but agreed that evidence that circumstances were changing was not sufficient to show change. Recalling appellants difficulties rehabilitating in the past, and noting that one does not get over methamphetamine addiction in nine to 10 months, the court concluded that even if appellant had shown sufficient change, it would not be in the minors best interest to modify the current course of permanent adoptive placement.

It was well within the juvenile courts discretion to decline to place the minor with appellant under such circumstances.

II.

No Exception to Termination of Parental Rights

Under Section 366.26(c)(1)(A)^[6]

Appellant contends the evidence was insufficient to support the courts termination of parental rights. ( 366.26.) In particular, she argues the court should have applied the beneficial relationship exception to adoption found in section 366.26, subdivision (c)(1)(A) (hereafter referred to as section 366.26(c)(1)(A)). Again, we disagree.

At a section 366.26 hearing, once the Department has shown it is likely the child will be adopted, the burden shifts to the parents to prove that termination of parental rights would be detrimental to the child based on one of the exceptions enumerated in subdivision (c)(1). [Citations.] (In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

Section 366.26(c)(1)(A) provides an exception to adoption when [t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1343.)

However, a parent may not claim entitlement to the exception provided by subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) The benefit to the child must 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 other words, 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D., supra, at p. 1350.)

We review for substantial evidence a juvenile courts determination whether a parent/child relationship should continue under the section 366.26(c)(1)(A) exception.^[7] (Autumn H., supra, 27 Cal.App.4th at pp. 575-576; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 (Lukas B.).)

The juvenile court concluded the section 366.25(c)(1)(A) exception does not apply. There is sufficient evidence in the record to support that conclusion. Appellant argues she maintained regular visitation -- i.e., hourly visits with the minor twice a week for 10 to 11 months. That fact is undisputed. She argues her interactions with the minor were positive (e.g., the minors face lit up when he saw her and he began calling her Mama), and that she exhibited good parenting skills by recognizing signs that he was tired or hungry and by feeding, diapering and comforting him. As a result, she urges, a significant parent/child bond was formed.

The juvenile court found that, while there was an attachment of sorts between appellant and the minor, it did not rise to the level of a parental bond that outweighs the minors need for permanence. We agree. The minor was removed from appellants care at birth. Since that time, he has been in foster care with caretakers who have seen to his daily needs. He is reportedly a very social baby and enjoys interacting with appellant, but no more so than with social workers and staff. While he calls appellant Mama, it is his caretaker to whom he holds his arms out to go to at the end of the visit [with appellant]. Having never resided with appellant and having interacted with her only two hours each week for 10 to 11 months, the minors attachment to appellant differs little from that he would have to anyone offering him kindness, care and comfort on a regular basis. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 [no benefit from continuing parental relationship where parent has frequent contact with minor but does not stand in a parental role to the minor].) The bond, such as it is, between appellant and the minor does not outweigh the benefit to the minor of permanency in an adoptive home (Autumn H., supra, 27 Cal.App.4th at p. 575). It is also worth noting that, while appellants efforts to address her substance abuse problems are commendable and indeed greatly improved over her previous attempts, her sobriety is still relatively recent and, as such, lacks the longevity necessary to assure a safe and healthy environment for the minor at this stage.

Reviewing the juvenile courts finding of adoptability and termination of parental rights for substantial evidence (Autumn H., supra, 27 Cal.App.4th at pp. 575-576; Lukas B., supra, 79 Cal.App.4th at p. 1154), we conclude the record supports the courts order.

DISPOSITION

The juvenile courts orders are affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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^[1] Further undesignated statutory references are to the Welfare and Institutions Code.

^[2] The minors half siblings have the same initials as the minor child who is the subject of this appeal. For purposes of protective nondisclosure, the half siblings will be designated J.H.2, and J.H.3. The minors half siblings are not the subject of this appeal.

^[3] At the time of the minors detention, J.H.2 was two years old and J.H.3 was six years old.

^[4] Section 361.5, subdivision (b) provides, in relevant part: Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [] . . . [] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian. [] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent. [] . . . [] (13) That the parent or guardian of the child 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 . . . .

^[5]Section 361.5, subdivision (c) provides, in relevant part: In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing. . . . [] The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.

^[6] Section 366.26, subdivision (c)(1)(A) was replaced by subdivision (c)(1)(B)(i) effective January 1, 2008. Because the section 366.26 hearing in this case occurred on November 8, 2007, we shall continue to reference subdivision (c)(1)(A) for purposes of this appeal.

^[7] While appellant urges that the standard of review is abuse of discretion (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351), she concedes that courts have routinely applied the substantial evidence test to the juvenile courts finding under section 366.26(c)(1)(A), and we see no reason to do otherwise and would, in any event, reach the same conclusion under either standard.