In re M.V.
Filed 3/5/12 In re
M.V. CA3
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
In re M.V., a Person Coming
Under the Juvenile Court Law.
SACRAMENTO
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
JAMES V.,
Defendant and Appellant.
C068133
(Super.
Ct. No. JD228343)
Appellant James
V., the father of the minor M.V., appeals from the juvenile court’s orders
terminating his parental rights and
denying his petition for modification.
(Welf. & Inst. Code, §§ 395, 388, 366.26.)
denying his petition for modification and in failing to apply the parent-child
relationship exception to adoption. We
shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The minor (born
April 2002) was placed in protective custody by the
Human Services (DHHS) in September 2010 after the minor’s mother was
arrested for assaulting her boyfriend.
The minor was placed with her adult half sister L.C. and her
husband.
The parents have
an extensive child welfare history involving drug and alcohol abuse, as well as
domestic violence. Mother’s and father’s
parental rights for the minor’s siblings were terminated in a 1999 dependency
action due to the parents’ substance abuse and domestic violence.
In September
2008, DHHS filed a dependency petition
regarding the minor, alleging jurisdiction under section 300, subdivisions (b)
(failure to protect) and (j) (abuse of sibling) based on the parents’ continued
drug and alcohol abuse and the prior termination of parental rights. The parents had participated in voluntary
services through the informal supervision program since November 2007. While father’s progress was satisfactory,
mother’s was minimal, having tested positive for methamphetamine and alcohol in
April, May and July 2008. The minor
related incidents of domestic violence
between the parents, as well as their continued consumption of alcohol.
Father was
incarcerated at the time of the October 2008 jurisdiction and disposition
report. He admitted using alcohol as
recently as August 2008. He was open to
services, and attended A.A. and N.A. meetings at jail. Father admitted first using methamphetamine
when he was 15 or 16 years old. He
stopped using methamphetamines when he was 29 in 2001, and stayed clean for six
years before relapsing with mother in 2007.
Father described
his relationship with the minor as “really good.” He had sole care of the minor for about two
months after mother was arrested in December 2008. DHHS noted the minor did well in father’s
care.
The juvenile
court sustained the petition in January 2009, placed the minor with the
parents, and ordered services, including a treatment program and drug
court. After the parents separated in
February 2009, the minor lived with mother while father saw her three days a
week.
Father was very
open and cooperative with the social worker, but used methamphetamine in April
2009 and was incarcerated twice between September 2008 and July 2009. Father agreed to a corrective action plan,
which included additional drug treatment, more testing, and attending a 12-step
program three times a week. He had
already completed a 12-class series on substance abuse when he relapsed. His counselor, Dr. Shirley Rowland, who had
worked with father since October 2008, recommended additional treatment.
The parents were
given an additional six months of services in July 2009. The parents were divorced by December
2009. The dependency was terminated by
the juvenile court in January 2010, with physical custody to mother and joint
legal custody for the parents.
In July 2010,
the minor’s half sibling L.C. filed a probate guardianship petition on behalf
of the minor, alleging the parents continued to use alcohol and controlled
substances. The probate court denied a
temporary guardianship petition because of a current child welfare referral.
DHHS filed a new
dependency petition in September 2010, alleging jurisdiction under section 300,
subdivisions (b) and (j) on the basis of the parents’ continued substance abuse
problems, mother’s domestic violence with her boyfriend, and the parents’ child
welfare history. The minor was detained
later that month.
The November
2010 jurisdiction and disposition report related an interview with father in
which he admitted leaving a stash of marijuana in the minor’s bedroom in
September 2010 while doing yard work in the apartment complex. A friend gave father the marijuana, which
father intended to sell because he no longer used the drug. Father also admitted to occasionally drinking
beer, but denied having a substance abuse problem. He had been doing well in his substance abuse
program until he relapsed in February or March 2010, and started drinking beer
every other day. The minor told the
social worker that her father drinks, but on a moderate basis.
The minor felt
safe living with her half sibling L.C.
She requested visitation with both parents; the parents had not made
themselves available for visits.
In December
2010, the juvenile court sustained the petition and denied services to the
parents pursuant to section 361.5, subdivision (b)(13).
The April 2011
selection and implementation report related that father’s monthly visits went
well, and the minor enjoyed spending time with him. The minor’s caretakers, L.C. and her husband,
expressed their desire to adopt the minor, and were referred to adoption home
study in March 2011. The minor was
agreeable to adoption, and seemed to enjoy the love and stability offered in
her half sibling’s home. The report also
noted that father had been enrolled in a residential drug treatment program
since December 2010.
Father filed a
petition for modification (§ 388) in April 2011, seeking custody of the
minor or six months of reunification services.
He alleged as changed circumstances his ongoing participation in
treatment for drug and alcohol abuse.
In an addendum
report filed later that month, DHHS noted the minor continued to “thrive” in
her placement with L.C., and had just recently started calling her prospective
adoptive parents “mom” and “dad.” L.C.
“wholeheartedly” wanted to adopt the minor.
The minor’s
therapist told the social worker she would be very concerned about maintaining
the case under a plan of family reunification as it would be highly confusing
to the minor. While the minor wanted to
see her father, the therapist said it would be “devastating” for her to reunify
with father and have him fail once again.
At a contested
hearing on the petition for modification, Christy Howell, father’s counselor at
“The Effort” drug treatment program, testified that “he was very open and
willing to change his life,” which was a key component to successful
treatment. Father was in the program for
almost four months, during which he attended every meeting, complied with the
program’s rules, and never tested positive.
Father would
call and check in even after he left the program. He was using the skill set he learned at The
Effort, and he had been clean and sober for five months. While she was aware of his relapses, Howell
believed father could remain clean so long as he applied the tools he acquired
at The Effort.
Father testified
that he shared a strong bond with the minor, having been part of her life since
she was born. Admitting his prior
relapses, father said his most recent recovery was different because he now had
a support group. He could stay clean
this time because, unlike his previous efforts, father had a 12-step
program.
Father recently
completed parenting and life skills classes.
The life skills class taught him how to cope with his stress and
personal issues alongside his addiction.
The 14-session parenting class taught him positive discipline, why
children misbehave, and why some children act as they do.
After graduating
from The Effort, father went to the “Mather Community Campus” (Mather), a
structured environment that offered mental health and employment programs. He could stay there for two years, and the
minor could reside there if placed with him.
Father felt
reunification with the minor was in her best interests. Asked why, father replied, “Because she needs
a father. I mean, I know her mom ain’t
there, but I miss my daughter so much.
You know, it hurts me not being around her. I know I can take care of her [and] support
her and give her the nourishing that she needs.” Father also related how it hurts him to see
the minor say “I miss you Daddy. I want
to come home” at the end of visits, and that the minor was his “last shot”
after losing his other children.
Father’s
sponsor, Shade Adkins, was a graduate of The Effort program who sponsored
residents. He had been father’s sponsor
for about four months. Father was doing
“well” and his attendance at Mather was “a very good step in the right
direction.”
Dr. Rowland had
treated defendant for substance abuse since October 2008. She was out of communication with father
before his most recent relapse, but treated him since then. According to Rowland, father’s previous
relapses were due to “major crises in his life and feeling extreme
stress.” In Rowland’s opinion, father
now had the tools to stay clean and sober, which he did not have when he failed
in 2008. In addition, father’s
problematic relationship with mother was less of a concern now as he was ready
to let go of the relationship.
Dr. Rowland saw
the minor with father four to five times a year. The minor was very comfortable with
father.
A DHHS family
service worker testified that the minor called father “dad.” She was excited when she first saw him on
visits, and hugged him when he arrived.
During visits they talked, read, and played games together. The minor “appeared comfortable” and was
“affectionate” with father.
Father may have
tried to discuss mother during a visit, but the family service worker
redirected him. During a March 2011
visit, he told the family service worker he wanted to give a card from mother
to the minor. The family service worker
gave the card to the minor’s caregiver, after obtaining approval from the
social worker.
The juvenile
court denied the petition for modification, finding that father failed to
establish changed circumstances or that the petition was in the minor’s best
interests.
At the section
366.26 hearing, father’s counsel argued the beneficial parent-child
relationship exception to adoption was applicable. The juvenile court rejected the argument and
terminated parental rights.
DISCUSSION
I. Parent-child
Relationship Exception to Adoption
Father claims
the juvenile court erred in failing to find the beneficial parent-child
relationship exception to adoption. We
disagree.
At a hearing
under section 366.26, if the juvenile court finds by
minor is likely to be adopted, the court must terminate parental rights and
order the minor placed for adoption unless “[t]he court finds a compelling
reason for determining that termination would be detrimental” due to one of the
statutorily enumerated exceptions.
(§ 366.26, subd. (c)(1)(B).)
Section 366.26,
subdivision (c)(1)(B)(i) 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.”
The parent has
the burden of establishing an exception to termination of parental rights. (In re
Zachary G. (1999) 77 Cal.App.4th 799, 809.) “Because 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 ruling declining to find an exception to adoption must be affirmed if
it is supported by substantial evidence.
(In re Zachary G.,
p. 809; In re Derek W. (1999) 73 Cal.App.4th
823, 827; In re Autumn H. (1994)
27 Cal.App.4th 567, 576.) “On
review of the sufficiency of the evidence, we presume in favor of the order,
considering the evidence in the light most favorable to the prevailing party,
giving the prevailing party the benefit of every reasonable inference and
resolving all conflicts in support of the order.” (Autumn
H., at p. 576.)
Father asserts
he has a strong, well-established bond with the minor that justifies applying
the exception. He notes the minor was
excited to see him on visits, was very comfortable with him during visits, and,
according to his testimony, called him “dad” at the end of visits. Father also relies on the therapist’s 2008
report, which finds the minor bonded to father, and statements from the minor
that she missed father and wanted to maintain contact with him. From this, father concludes severing the
parental bond will greatly harm the minor.
Father’s
argument overlooks significant evidence showing how terminating parental rights
is in the minor’s best interests. The
most recent statement from her therapist expressed much concern about
continuing the case, as it would be confusing to the minor, and another failed
reunification would be devastating to her.
The minor spent considerable time (two years) in the dependency system,
and, in light of his history, father’s chances for reunification were
inherently risky. In short, continuing
the parental relationship presented a genuine risk to the minor. Since applying the exception to adoption
risked harming the minor, substantial evidence supports the juvenile court’s
finding that father had not met his burden in establishing his was one of the
extraordinary cases justifying the exception to adoption.
II. The Section
388 Petition
Father contends
it was an abuse of discretion for the juvenile court to deny his section 388
petition.
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 minor’s best
interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (
the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.)
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.) “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
child’s need for prompt resolution of [her] custody status.” (Marilyn
H., at p. 309.)
The child’s best
interests are of paramount consideration when a modification petition is
brought after the termination of reunification services. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child,
the juvenile court looks not to the parent’s interests in reunification but to
the needs of the child for permanence and stability. (In re
Marilyn H., supra, 5 Cal.4th
at p. 309.) “[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 court’s discretion to decide
that a child’s interest in stability has come to outweigh the natural parent’s
interest in the care, custody and companionship of the child.” (In re
Jasmon O. (1994) 8 Cal.4th 398, 419.)
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.” (In re Jasmon O., supra,
8 Cal.4th at p. 415.) “It is
rare that the denial of a section 388 [petition] merits reversal as an abuse of
discretion . . . .”
(Kimberly F.,
p. 522.)
Father asserts
“[t]he record presents compelling evidence [he] was well on the way to fully
resolving his substance abuse problem.”
He finds significance in the fact that his most recent effort was his
first residential drug treatment. Also,
father notes testimony from his counselor that he was “very open and willing to
change his life,” and that he flourished during his four months in the
program—never missing a meeting, obeying all the rules, and always testing
negative, a performance the juvenile court acknowledged as “superb.”
The problem with
father’s argument is the nature of what he is trying to overcome: his drug and alcohol addiction, his history
of relapses, and his comparatively short period of sobriety. Kimberly F.
suggested it was unlikely that a parent who lost custody because of a drug
problem could prevail on a section 388 petition, because “[i]t is the nature of
addiction that one must be ‘clean’ for a much longer period than 120 days to
show real reform.” (Kimberly F., supra,
56 Cal.App.4th at p. 531, fn. 9.)
In light of father’s history of relapses from treatment, an extra month
of sobriety does not make a difference.
Since the evidence shows father presented changing rather than changed
circumstances, it was not an abuse of discretion for the juvenile court to deny
his petition. (In re Casey D., supra,
70 Cal.App.4th at pp. 48-49.)
DISPOSITION
The orders of the juvenile court are
affirmed.
BUTZ , J.
We concur:
HULL , Acting P. J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] The parties point out that other courts apply
a different standard of review regarding exceptions to adoption. (See, e.g., In re Jasmine D., supra,
78 Cal.App.4th at p. 1351 [abuse of discretion]; In re I.W. (2009) 180 Cal.App.4th 1517, 1528 [“whether the
evidence compels a finding in favor of the appellant as a matter of
law”].) Since there is little practical
difference between the abuse of discretion and substantial evidence standards
(see Jasmine D., supra, 78 Cal.App.4th at p. 1351) and, since the standard
in I.W. is worse for father, the
result here would be the same under any standard.
