In re J.K.

Filed 1/20/09 In re J.K. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

J.K. (mother) appeals from an order denying her petition for modification of the juvenile court's prior order denying family reunification services. (Welf. & Inst.Code, 388.)[1] She also appeals from a judgment terminating her parental rights to her then 18-month-old son, J.K. (minor). ( 366.26.) Mother contends: (1) the juvenile court abused its discretion in denying her section 388 modification petition; (2) the evidence is insufficient to support the juvenile court's finding that minor is likely to be adopted within a reasonable time; and (3) the juvenile court erroneously found inapplicable the exception to the termination of parental rights that applies where "[t]he parents have maintained regular visitation and contact with the child and the minor would benefit from continuing the relationship." ( 366.26, subdivision (c)(1)(B)(i).) We affirm.

Factual and Procedural Background

Mother was diagnosed with bipolar disorder and has a long history of substance abuse. Because of this abuse, in August 2004 her three other children (half-siblings of minor) were removed from her custody. The children were declared dependents of the juvenile court, and family reunification services were terminated in March 2005. As to two of the children, mother's parental rights were terminated in December 2007. The third child "is stable in placement with a permanent plan of long term foster care." Mother wrote in a letter: "I was unable to meet the requirements to reunite with [her three other children] because I was lost deep into the depths of my addiction."

In August 2005 mother was convicted of possessing a narcotic controlled substance. She was placed on felony probation for 36 months. Minor was born in January 2007. At the time of his birth, mother was taking 120 milligrams of methadone everyday. Mother told a social worker that she had been on a "methadone treatment program because she was addicted to vicodin when she got pregnant."

In February 2007 mother and minor entered a "residential program" at St. Vincent's, a social services agency. In May 2007 a "reporting party," who was apparently on the staff at St. Vincent's, told a social worker that "mother had a previous addiction to heroin and had been working to detox herself." The reporting party further stated that "County Mental Health had evaluated [mother] several months ago and determined that she had severe mental illness." Mother told the reporting party that "this evaluation was done after having come down from long term heroin addiction and that she was hearing voices and was delusional due [to] the detox symptoms." The reporting party declared that mother "had been thrown out of the program at St. Vincent's" and "had not adhered to the program requirements for weeks."

On May 17, 2007, mother was arrested for being under the influence and for possessing cocaine. A social worker responded to the scene "and found that . . . mother showed objective signs of being under the influence of drugs. . . . [M]other had difficulty focusing, could not answer questions, was not able to stand still and kept kicking her leg to the side. . . . [M]other was attempting to put clothes on the [minor] but was so unable to control her body that she could not do so." Mother later said that she "had relapsed on cocaine" after a "physical altercation" with her own mother. The juvenile court ordered minor detained.

At the jurisdictional hearing conducted in June 2007, the juvenile court found minor to be a person described by section 300. In July 2007 mother's probation was revoked. She received concurrent 16-month prison sentences on the probation violation and the new drug offenses.

At the dispositional hearing conducted in December 2007, the juvenile court ordered that custody be taken from mother. It also ordered that "family reunification services need not be offered" to her pursuant to section 361.5, subdivisions (b)(10) and (e)(1). (CT 104) It set the matter for a section 366.26 hearing to determine whether mother's parental rights should be terminated.[2]

On May 28, 2008, the juvenile court denied "mother's request for weekly supervised visitation" with minor. In June 2008 mother filed a section 388 petition requesting that the juvenile court modify its prior order denying reunification services. The petition was accompanied by a supporting declaration from mother dated May 28, 2008. Mother stated that she had been released from prison approximately 13 weeks earlier. During her incarceration, she had "participated in treatment, including individual counseling, drug and alcohol education, anger management, relapse prevention, and an introduction to the twelve steps of recovery." Since her release from prison, she had been living in a residential treatment program. She had repeatedly attended Alcoholics Anonymous (AA) meetings and had consistently tested negative for drugs and alcohol. She was working "with the Economic Opportunity Commission . . . to establish a stable residence following [her] graduation" from the residential treatment program. She was "also working actively with a psychiatrist and psychologist" and was taking "medication regularly based on [her] psychiatrist's advice."

On July 23, 2008, the juvenile court conducted a combined section 388 and section 366.26 hearing. Mother testified as follows: On May 17, 2007, minor was removed from her care and she was jailed. During her incarceration, she did not visit minor but wrote at least two letters a week to him. In addition, at least once every two weeks she telephoned her grandmother, with whom minor had been placed. Upon her release from custody on February 22, 2008, she entered "a 90-day residential treatment program" from which she had graduated. During this 90-day period, she visited minor on four occasions, including one overnight visit when she spent two days caring for him.[3] It was clear that minor recognized her as his mother. When minor saw mother, he would immediately reach up for her, bury "his head right in [her] chest," and say, "Mom." She is currently residing in a two-bedroom house with an AA member.

The trial court denied the section 388 petition for modification. It found that mother had failed to show that a change of circumstances had occurred or that the provision of reunification services would be in minor's best interests. (RT 56) The court declared: "I think the circumstances . . . are moving in a very positive direction. They are changing still. They are in flux."

In terminating mother's parental rights, the trial court found that mother had not shown that she stood "in a parental role" with respect to minor. The court selected adoption as the permanent plan.

Denial of Mother's Section 388 Petition

Mother contends that the trial court erroneously denied her section 388 petition requesting that the juvenile court modify its previous order so as to provide her with reunification services. "Section 388 states in pertinent part that a parent may 'upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.' ( 388, subd. (a).) The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances or new evidence and that the modification would promote the best interests of the child. [Citation.] . . . Whether an order should be modified rests within the sound discretion of the juvenile court, and its decision will not be disturbed on appeal absent a clear abuse of discretion. [Citations.]" (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.)

Where, as here, reunification services have been denied, "the parents' interest in the care, custody and companionship of the child are no longer of overriding concern. [Citation.] The focus . . . shifts to the child's need for permanency and stability, and there is a rebuttable presumption that continued foster care is in the child's best interests. [Citations.]" (In re Aaliyah R., supra, 136 Cal.App.4th at p. 448.)

The juvenile court did not abuse its discretion. The court reasonably determined that mother had failed to carry her burden of showing changed circumstances by a preponderance of the evidence. Mother was still in the early stages of recovery from her substance abuse. She had been released from custody only five months before the section 388 hearing, and she had spent the first 90 days after her release in a residential treatment program. In view of mother's long history of substance abuse and relapses, it was too soon to draw any conclusion whether she had made meaningful progress toward rehabilitation. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [given parents' "extensive histories of drug use and years of failing to reunify with their children," their three months of rehabilitation efforts "did not demonstrate changed circumstances"]; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206 [no changed circumstances since "[g]iven the severity of [mother's] drug problem the court could reasonably find her sobriety between March and the date of the hearing, June 20, was not particularly compelling"]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [father's compliance with treatment plan and seven months of sobriety since relapse, "while commendable," did not constitute changed circumstances because "[h]e had a history of drug use dating back to his college days, and since then his periods of sobriety alternated with recurring drug use"]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform"].)

Even if we assume that mother established the requisite changed circumstances, she failed to carry her burden of showing by a preponderance of the evidence that the provision of reunification services would promote minor's best interests. Mother's bond with minor was tenuous. He was only four months old when he was taken from her custody. During the ensuing 14 months, she visited him on only four occasions. Mother's reunification track record was deplorable. She had failed to reunify with her three other children. "The juvenile court quite properly looked to [minor's] need for permanency and stability in denying mother's petition for modification of its prior order[]." (In re Aaliyah R., supra, 136 Cal.App.4th at p. 448.)

Adoptability

Before terminating parental rights, the juvenile court must find by clear and convincing evidence that the child is likely to be adopted within a reasonable time. ( 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406.) Mother contends that the evidence is insufficient to support the trial court's finding of minor's adoptability.

In assessing a child's adoptability, " 'the juvenile court must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile court's order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]' [Citations.] We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)

Substantial evidence supports the juvenile court's finding that minor is likely to be adopted within a reasonable time. The section 366.26 report notes that minor "has a very sweet personality," is healthy, "appears to be developmentally on target," and "appears to be mentally and emotionally stable." The report concludes: "Considering [minor's] age, health, and personality, it will not be difficult to find him an adoptive home that is committed to providing him with the love and stability he needs." A subsequent addendum report states that minor "has adjusted well in his new adoptive home and continues to thrive in all areas of development."

Termination of Parental Rights

"If the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of [several] specified exceptions. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The exception at issue here applies if "[t]he parents have maintained regular visitation and contact with the child and the minor would benefit from continuing the relationship." ( 366.26, subdivision (c)(1)(B)(i).) Mother had the burden of proving that this exception was applicable. (Id., at p. 826; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) She contends that the juvenile court erroneously found that it was inapplicable.

We review the juvenile court's findings under the substantial evidence standard. (In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 575; contra, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [reviewing court should apply abuse of discretion standard].)

Regular Visitation

Substantial evidence supports the juvenile court's implied finding that mother failed to carry her burden of proof as to the exception's first prong: that she had "maintained regular visitation and contact" with minor. ( 366.26, subd. (c)(1)(B)(i).) During the 14 months prior to the section 366.26 hearing, mother visited minor on only four occasions.

Mother contends that she cannot be faulted for a lack of regular visitation because this was due to respondent's wrongful refusal or failure to arrange visitation during the nine months of her incarceration. Mother has waived this issue because she failed to raise it below. (See In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642.) In any event, we reject mother's contention on its merits because she has not cited any evidence in the record showing that, during her incarceration, she asked respondent to arrange visitation or complained to the juvenile court about the lack of visitation.

We also reject mother's contention that, after the denial of reunification services in December 2007, visitation with minor was mandated under section 366.21, subdivision (h), because the juvenile court did not find that visitation would be detrimental to minor. Section 366.21, subdivision (h), provides in relevant part: "In any case in which the court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the termination of reunification services to the parent or legal guardian. The court shall continue to permit the parent or legal guardian to visit the child pending the hearing unless it finds that visitation would be detrimental to the child."

Section 366.21, subdivision (h), does not apply here because the juvenile court denied reunification services pursuant to section 361, subdivisions (b)(10) and (e)(1). Where reunification services are denied pursuant to these provisions and a section 366.26 hearing is set, the juvenile "court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." ( 361.5, subd. (f).) This language has been construed "as giving the juvenile court discretion to permit or deny visitation when reunification services are not ordered, unless . . . it finds that visitation would be detrimental to the child, in which case it must deny visitation." (In re J.N. (2006) 138 Cal.App.4th 450, 458.)

When the juvenile court denied reunification services at the dispositional hearing in December 2007, it did not expressly permit or deny visitation with minor. But the court impliedly denied visitation because mother's case plan did not provide for it. The case plan stated: "[Respondent] does not believe that it is in the best interest of the child to have visits with either parent as there is no established bond between the child and the parents." (CT 126) The case plan was attached to and incorporated into the disposition report, which the juvenile court read and considered.[4] The court did not take issue with any aspect of the case plan. The implied denial of visitation was within the court's discretion in view of mother's long history of drug abuse and relapses, her failure to reunify with her other three children, and her lack of visitation with minor during her nine-month incarceration.[5]

Benefit to Minor from Continuing the Relationship

Substantial evidence supports the juvenile court's implied finding that mother failed to carry her burden of proof as to the exception's second prong: that "the minor would benefit from continuing the relationship." ( 366.26, subd. (c)(1)(B)(i).) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] . . . In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. [Citations.] []  . . . [I]f severing the existing parental 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 parent's rights are not terminated.' [Citation.] In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

The juvenile court reasonably concluded that mother had not proved that she occupied a parental role in minor's life, "resulting in a significant, positive emotional attachment" of minor to mother, so that he would suffer great detriment if her parental rights were terminated. (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) Although mother had lived with minor during the first four months of his life, she had visited him on only four occasions during the ensuing 14 months. Her substance abuse precluded her from playing a parental role. " 'As in almost every dependency case involving substance abuse, [mother] waited far too long to take the necessary steps towards recovery.' [Citation.]" (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)

Disposition

The order denying mother's section 388 petition and the order terminating her parental rights are affirmed.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Thomas R. Adams, Judge

Superior Court County of Santa Barbara

______________________________

Melissa J. Fernandez, for Appellant.

Dennis A. Marshall, County Counsel, County of Santa Barbara and Joel F. Block, Deputy, for Respondent.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] Mother did not seek review by extraordinary writ of the orders made at the dispositional hearing. Accordingly, she is barred from challenging those orders. ( 366.26, subd. (l)(2); Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1507.)

[3] Respondent did not authorize these visits.

[4] The court minutes state: "Court has read and considered the report and recommendations of [respondent]."

[5] Approximately five months later, on May 28, 2008, the juvenile court expressly denied "mother's request for weekly supervised visitation."