In re N.L.

Filed 12/3/08 In re N.L. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Harry L. Jacobs, Commissioner.

Roni Keller, under appointment by the Court of Appeal, for Defendants and Appellants.

James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, A.C., appeals from the juvenile courts order denying her petition pursuant to Welfare and Institutions Code section 388 to modify the courts prior orders terminating her reunification services.^[1] The court terminated appellants parental rights to N.L. pursuant to section 366.26. Appellant also contends the court erred in failing to apply the parent-child relationship exception rather than accepting adoption as the final plan for N.L.

FACTS AND PROCEEDINGS

Earlier Proceedings

Appellant had three children with R., R.L, A.L, and N.L.^[2] In January 2005, appellant tested positive for amphetamines during the birth of A.L. A voluntary family maintenance plan was opened. In November 2005, appellant tested positive for methamphetamine during the birth of R.L. A voluntary family maintenance plan was opened, appellant was assessed by a drug and alcohol counselor and the case was eventually closed.

In August 2006, allegations of severe neglect in the care of R.L. and A.L. were substantiated. The children were made dependents of the court and appellant was offered reunification services in August 2006 until March 20, 2007, when reunification services were terminated and the case was set for a termination hearing pursuant to section 366.26.

On August 2, 2007, appellant again tested positive for methamphetamine during the birth of N.L. A petition was filed on August 21, 2007, alleging that appellant had failed to obtain prenatal care for N.L., failed in a reunification plan with two older children, was scheduled for a hearing to terminate her parental rights, had tested positive for methamphetamine on August 16, 2007, and had received family services in the past. Appellants parental rights to R.L. and A.L. were terminated on August 30, 2007.

A combined jurisdiction/disposition hearing was conducted on September 27, 2007. The primary issue at the hearing was whether to bypass reunification services for both parents. Appellant was elected house mom of her residential program. Appellant testified that she attended substance abuse classes twice a week and was on the first step of a twelve step program. Appellant attended anger management classes and parenting classes and had been clean for 42 days. Appellant wanted her son back because she had taken parenting classes and wanted to be a good parent to him.

Appellant provided medical records showing she had seen a doctor during her pregnancy in the months of May, June, July, and August 2007. Appellant explained that she had been using drugs since she was age 15. Appellant and R.s two other children were removed in 2006. Appellant admitted that she had a positive test for methamphetamine on August 16, 2007.

The juvenile court found N.L. to be within the provisions of section 300, subdivision (b) and adopted the recommendation of the human services agency to deny reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11). The court noted that although appellant and R. were beginning to change their circumstances, their circumstances still had not changed.^[3]

Recent Proceedings

The social workers report for the section 366.26 hearing was filed on December 21, 2007. N.L. was placed in a foster home. Appellant visited N.L. once a month between August and December 2007. Appellant acted appropriately during the visits. Appellant told the social worker that she did not want her parental rights terminated because she was in a residential treatment facility during the previous five months and was doing the best that I can. Appellant stated she was complying with everything she needed to do in her program. The foster parents told the social worker that they wished to adopt N.L. The social worker described N.L. as healthy with no developmental delays and was adoptable. The social worker recommended termination of parental rights with a plan of adoption.

On January 8, 2008, appellant filed a petition pursuant to section 388 to modify the prior order of the juvenile court denying her reunification services. The petition stated appellant was residing in an inpatient substance abuse program, completed a parenting education class, and was clean and sober. Appellant stated the child should be with his natural mother in a safe and loving environment. The petition to modify and the section 366.26 hearing were continued until March 3, 2008.

Appellant testified that she had resided at the inpatient substance abuse program from August 20, 2007 until she completed the program on February 13, 2008. Appellant explained that she had learned structure, had obtained a certificate from the program, and now understood how to nurture, love and discipline.

Appellant attended parenting classes for 18 weeks and wanted to be allowed reunification services. Appellant stated that because she was clean and sober, she could be a loving mother. There was a bed available for N.L. in the residential treatment program. Appellant further planned to attend outside meetings and to talk to her support group.

Appellant explained the first three steps of her program as: admitting she was powerless over her addiction, coming to believe one is greater than oneself, and deciding to turn ones life over to God. Appellant admitted she had not finished step one with her sponsor. In fact, appellant did not yet have a sponsor. According to appellant, the last time she had an illegal drug was the second week of August 2007. Appellant conceded that off and on she had been taking illegal drugs for 12 years.

The court found changing, but not changed circumstances in appellants case. The court acknowledged that six months in the residential treatment program represented a change of circumstances, but not changed circumstances. The court noted that the petition did not adequately address a benefit to the minor, who had been in the care of others throughout his young life. The court found that reinstatement of services would not contribute to the establishment of permanence for the child and denied appellants section 388 petition. The court found the appropriate permanent plan was adoption and terminated the parents parental rights.

DISCUSSION

Section 388 Petition

Appellant argues the court abused its discretion by denying her section 388 petition. We disagree.

It was appellants burden of proof to show there was new evidence or there were changed circumstances that made a change of the childrens placement in their best interest. ( 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.).) The petition must be liberally construed in favor of its sufficiency. (Ibid.)

The references in In re Marilyn H., supra, 5 Cal.4th at page 310, to a prima facie showing is not an invitation to section 388 petitioners to play hide the ball in pleading changed circumstances or new evidence. A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 6.) If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)

Likewise, the mandate for liberal construction of a section 388 petition does not entitle a petitioner to avoid describing the changed circumstances or new evidence. Section 388 and the pertinent rule of court (Cal. Rules of Court, rule 5.570 [formerly rule 1432(a)(6)]) require the petition allege changed circumstance or new evidence that requires changing a prior order. (Jasmon O., supra, 8 Cal.4th at pp. 398, 415.)

We agree with the juvenile courts ruling that appellant failed to sustain her burden for a section 388 petition. Since her last relapse, appellant had been sober just over six months. She was only in the first step of her 12-step program and, at the time of the hearing, had not yet found a sponsor. Appellant had been in prior treatment programs and still relapsed. Appellant had, in the past, received reunification services for N.L.s two older siblings and she failed to both stay sober and to reunify with her other children. Appellant showed changing circumstances, but not changed circumstances.

The parent bears the burden of showing in a section 388 petition both a change of circumstance and that the proposed change is in the best interests of the child. A petition only alleging changing circumstances, which would lead to a delay in the selection of a permanent home, to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or the childs best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

To understand the element of best interests in the context of a section 388 motion brought, as in this case, shortly before and during the section 366.26 hearing, we look to the Supreme Courts decision in Stephanie M. At this point in the proceedings, a parents interest in the care, custody, and companionship of his or her children is no longer paramount. Rather, the focus shifts once reunification efforts end to the childrens needs for permanency and stability; there is in fact a rebuttable presumption that continued out-of-home care is in the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) A court conducting a modification hearing at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (Ibid.) Notably, both here and in the juvenile court, appellant ignores the childrens need for permanence and stability in advocating her position. Neither the juvenile nor this court, however, may do so.

Parent-Child Relationship

Appellant contends the court erred when it declined to find termination would be detrimental to the childs best interests. She claims she was entitled to such a finding because she maintained regular visitation with her child and she would benefit from continuing the relationship ( 366.26, subd. (c)(1)(B)(i) [formerly subd. (c)(1)(A)]). On review of the record, we find no abuse of discretion.

Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) If, as in this case, the child is likely to be adopted, 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 compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347 (Jasmine D.).) Instead, it is the parents burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809 (Zachary G.).) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the issue on appeal is whether the juvenile court abused its discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

While it is undisputed appellant maintained monthly visitation with N.L. as permitted by the court, the court could properly conclude that appellant and her infant son did not share a parent/child relationship. N.L.s affection for appellant does not demonstrate a parent/child relationship. We may not reweigh or express an independent judgment on the evidence (In re Laura F. (1983) 33 Cal.3d 826, 833), as appellant would have us do by focusing solely on her insistence on maintaining her parental rights and ignoring other evidence before the court.

In any event, appellant failed to establish her relationship with N.L. was so strong that the child would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The loss of a childs frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Appellants visitation with N.L. was not so frequent as to show a sustained relationship.

Appellant focuses on her constitutional and natural rights as a parent rather than the best interests of her child. There are few, if any, factors in the record that would support a finding by the juvenile court of an important and beneficial relationship. (See Zachary G., supra, 77 Cal.App.4th at p. 811.) Appellant ignores N.L.s very young age, the fact N.L. spent little time with her, and, most importantly, N.L.s need for stability, continuity and permanence. We conclude the trial court properly balanced those factors along with the positive interaction between appellant and N.L. during their visits.

[T]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs 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.) A juvenile court must therefore: balance[] 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. (Id. at p. 575.) (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, appellant failed to introduce any such evidence. Accordingly, we conclude the court did not abuse its discretion by rejecting appellants argument.

DISPOSITION

The juvenile courts order terminating parental rights is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.

^[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

^[2] Appellant had three older children from a prior relationship. Those childrens father has custody of them and does not permit appellant visitation.

^[3] R. filed a writ petition to this court, case No. F053881. We denied the petition on December 14, 2007.