In re P.A.

Filed 12/21/09 In re P.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.

Pamela J. Walls, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Mother P.J.A. (Mother) appeals after the termination of her parental rights to her daughters, P.A. and S.A., at a Welfare and Institutions Code section 366.26^[1]hearing.

Mother now claim as follows:

1. The juvenile court abused its discretion by denying Mothers section 388 petition to reinstate her reunification services.

2. The juvenile court erred by refusing to find that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) applied and terminating her parental rights to S. and P.

We find no error. Hence, we will affirm the termination of Mothers parental rights.

I

PROCEDURAL AND FACTUAL BACKGROUND

A. Detention

On May 7, 2007, the Riverside County Department of Public Social Services (the Department) filed a section 300 petition for 7-year-old P. and newborn S. P.s biological father was J.J., who was incarcerated; S.s alleged father was M.C., and his whereabouts were unknown.^[2]

In early May 2007, the Department received notice of an immediate referral from Rancho Springs Medical Center because then-26-year-old Mother had given birth to S., and they had both tested positive for methamphetamines. Social workers from the Department interviewed P. She was underweight for her age, and her upper teeth were rotten. Mother and P. had been living with maternal grandmother, J.A. P. reported that she sometimes was not fed at home.

A deputy from the Riverside County Sheriffs Department informed the Department that J.A.s house was known as a place where drugs were sold. When the deputy was able to get into the home, all of the adults present were under the influence of drugs. There was no food in the refrigerator.

P. and S. were taken into protective custody. Mother was interviewed at the hospital and denied she lived with J.A. She admitted using drugs right before S.s birth. J.A. told the Department that she had been taking care of P. almost her entire life and that P. lived with her. J.A. denied that Mother lived with her.

In 2000, when Mother gave birth to P., Mother had tested positive for marijuana. P. was not taken away at the time because Mother was bonding with her and was no longer using drugs. Referrals in 2002, 2003, 2004, and 2006, for neglect of P. were unfounded. In early 2002, Mother had given birth to A.A. They both tested positive for methamphetamines. Mother lied about her name and agreed to give A. up for adoption. A.s adoption was finalized in June 2003.

Mother had prior convictions for possession of controlled substances in 2005. J.A. also had prior convictions for possession of controlled substances for sale. Mother had not benefitted from previous offers of assistance with substance abuse.

The Department recommended that both S. and P. be detained from Mother and their alleged fathers. The specific allegations in the section 300 petition were that Mother had tested positive for drugs, as had S. ( 300, subd. (b)); Mother had extensive substance abuse history (ibid.); Mother had left P. in the care of individuals she knew were abusing drugs, and P. was neglected (ibid.); Mother and P.s father, J.J., had extensive criminal histories (ibid.); J.J. had failed to provide for P. (id., subds. (b) and (g)); and S.s father, M.C., had failed to provide for her (id., subds. (b) and (g)).

On May 8, 2007, the juvenile court found that there was a substantial risk that the children would suffer serious physical harm or illness if placed in Mothers care or that of their respective fathers ( 300, subd. (b)) and that the children had been left without any provision for support (id., subd. (g)). The juvenile court ordered that the children continue to be removed from their parents custody.

B. Jurisdiction/Disposition

According to a report filed by the Department on June 4, 2007, it was recommending reunification services to Mother only. J.J was still incarcerated for possession of controlled substances. M.C. could not be found.

P. met with a social worker on May 31, 2007. She wanted to go home. She had had a recent visitation with Mother and was sad. She now said that she had been adequately fed while living in J.A.s house. She did not remember ever going to the dentist or when she had last seen a doctor.

Mother was interviewed on May 31, 2007. She was late to the appointment and made several different excuses. Mother now claimed that J.A. actually lived in the garage of the home and that there was plenty of food in a refrigerator in the garage. Mother denied that J.A. currently was taking drugs. She admitted being out of compliance with her court-ordered drug diversion program but was working on getting reenrolled.

Mother admitted she had smoked methamphetamine two days prior to S.s birth; she said she had been stupid. Mother was not in a relationship with either J.J. or M.C. She had pulled out her hair because she was depressed after she gave A. up for adoption and ended up shaving her head. Mother only used methamphetamine and marijuana on occasion; she denied she had a drug problem. Mother agreed to receive drug treatment and do whatever she could to get her daughters back.

P. was on track developmentally and did not require any counseling. S. did not appear to have any developmental delays.

It was unclear where Mother was going to live should she regain custody of S. and P.; she was not employed. Visitation was occurring twice per week and was going well.

On July 31, 2007, the juvenile court held a contested jurisdiction hearing in the matter. Mother and the Department submitted on the Departments records. M.C. had come forward and was made part of the proceedings.

The juvenile court found that S. came with section 300, subdivision (b) because there was a substantial risk that she would suffer serious physical harm or illness if placed in Mothers care. For P., the juvenile court also found that she faced a substantial risk of physical harm if left in Mothers care (ibid.) and that she had been left without any provision for support (id., subd. (g)). Mother was granted reunification services for both children.

C. Six- and 12-month Review Reports

In the Departments six-month status report, it recommended that services for S. and P. be continued for six months. Mother had lived at several addresses during the reporting period and was still unemployed. She claimed to be living with a friend in Lake Elsinore but did not know the address. P. was in excellent health, her teeth were being fixed, and she was doing very well at school. S. was also doing well.

In 2007, Mother had agreed to participate in a drug diversion program and was to participate in drug education and testing. She had not completed the program and had been dropped from it due to her failure to pay for it. There were no available records for her performance. A hair follicle test on Mother was unable to be completed because she had a scalp infection, and her hair was only one-half inch long. Mother was unable to provide the Department with a home address and had failed to appear for a random drug test on November 23, 2007.

Mother had not completed her parenting classes. Although she claimed to be going to Narcotics Anonymous (NA), she had no attendance cards to confirm her attendance. Mother had been attending visitation two times per week. J.A. was also at some of the visits. P. enjoyed the visitations. The Department felt there was a chance of returning both P. and S. to Mothers care if she could show advancement in her case plan.

Although Mother had no means of taking care of P. and S., she did show that she was nurturing toward them. The permanent plan was to return them to Mother.

On December 18, 2007, at the six-month review hearing, the juvenile court found returning the S. and P. to Mothers care at that time would place them at substantial risk of detriment to their physical or emotional well-being. However, the permanent plan was to return S. and P. to Mothers care. The court ordered the Department to continue providing services for Mother.

In the 12-month review report filed on June 2, 2008, the Department recommended that reunification services for Mother be terminated and that a section 366.26 hearing be set. S. and P. were placed with P.s paternal aunt, R.J. M.C. was determined to be the biological father of S.

Mother claimed that she got a job as a secretary but provided no details. She was living with a friend in Lake Elsinore but was moving back in with J.A. P. continued to thrive in R.J.s home and was doing well in school. S. was developing normally and was a happy baby.

Mother had provided documentation that she would complete her drug diversion program on July 31, 2007, but there was no proof she had completed the program. She had not signed up for a drug treatment program that was required in addition to drug diversion. Mother had failed to appear for random drug tests on five occasions, but when she showed up on six other dates, she tested negative. Mother gave no excuse why she had missed five appointments.

Mother had three classes left in her parenting program and was not currently enrolled. She was diagnosed with suffering from major depression that needed to be treated. She had proof of attendance at NA and Alcoholics Anonymous (AA) meetings.

Since October 2007, Mother had been on time to visitation only twice. P. reported that she enjoyed visits with Mother but did not like it when Mother wore clothes that did not cover up her butt. P. was doing well in the placement and school, and S. was always in a happy mood. The Department concluded that it was not possible at that time to return P. or S. to Mothers care due to her inability to complete her case plan and provide a stable home. Further, although she was appropriate at visitation, she was consistently late. R.J. wanted to adopt both girls. She had filed a request to be their de facto parent.

In an addendum to the 12-month review report filed on July 24, 2008, it was reported that M.C. had been incarcerated and was awaiting a trial. Mother had stopped attending her therapy sessions because she did not like the therapist.

D. Contested 18-Month Review Hearing

On September 8, 2008, the court called a contested 12-month review hearing in the matter. Mother had submitted several cards showing consistent NA and AA attendance. She also had been told she would be accepted at a drug treatment facility. The parties agreed to continue reunification services for Mother until the 18-month date, and the juvenile court so ordered.

An 18-month status review report was filed on October 14, 2008. The Department recommended that reunification services for Mother be terminated and that a section 366.26 hearing be set to establish the permanent plan of adoption for S. and P.

On September 11, 2008, a search was conducted at J.A.s home. Eight adults in the home, including J.A., were arrested for possession of drugs and possession of drugs for sale. Mother was present during the search but was not arrested.

Mother had told the Department she was renting J.A.s home and was living alone there. She also claimed to have obtained a job working 40 hours per week for $10 per hour. Mothers psychiatrist had reported that she was pregnant again, but it had not been confirmed by the Department. Mother also had a recent failure to appear warrant out for her arrest.

P. continued to thrive with R.J. and to do well at school. However, R.J. had reported P. was displaying negative behavior and sadness. S. was developing normally and was a sweet, happy baby.

Mother had had an appointment at a drug recovery program but was put on a waiting list. She was told to check in each week, and she would be admitted when space was available. Mother did not check in weekly, and she had been dropped from the waiting list. Mother had six random drug testing appointments during the reporting period. She missed three, tested negative for two, and tested positive for amphetamines on September 2, 2008.

Mother had completed the parent education program. She had left individual therapy. She had not gone to her scheduled appointments with a psychiatrist so she was dropped by the doctor. Mother failed to provide copies of any NA or AA attendance cards. She had also failed to appear for a scheduled hair follicle drug test.

Mother had continued visitation with P. and S. She was late on occasion with no excuse. Mother had read a letter to P. during one visit advising P. how sorry she was for the situation, and P. had been visibly upset since the visit. S. appeared to enjoy her visits with Mother. P. had told social workers at the Department that she wanted to go home with her Mother, but, if she could not, she would like to stay with R.J.

The contested 18-month review hearing was held on November 25, 2008. The parties submitted on the reports. The court found that returning the children to Mother would create a substantial risk of detriment to them. It concluded that the Department had offered reasonable services to Mother; however, Mothers progress in alleviating or mitigating the problems that caused removal of the children had been unsatisfactory. Accordingly, the court terminated Mothers services. It scheduled a section 366.26 hearing to consider terminating parental rights. Mothers visitation was continued. R.J. was granted de facto parent status as to both girls.

On January 21, 2009, a new section 300 petition was filed for a fourth child, C.A. Mother had given birth to C. in early 2009, and both Mother and C. had tested positive for methamphetamines at the time of the birth. C. had been detained.^[3]

E. Reports for Section 366.26 Hearing

In a report filed on March 13, 2009, the Department recommended that parental rights be terminated as to P. and S. and that they be freed for adoption. The Department reported to the juvenile court that Mother had given birth to C. and that they had both had methamphetamines in their systems. Mother was now reporting that she was unemployed and not paying rent to J.A. Mother was still on a waiting list for a substance abuse program. Both J.J. and M.C. were in substance abuse programs.

P. was doing well socially and in school. She had been seen by a therapist but progressed so well that the sessions had been discontinued. S. was continuing to develop normally and was bonded to P.

P. and S. had bonded with R.J., who was willing to adopt both girls to keep them together. She was also willing to adopt C. if Mothers parental rights were terminated. R.J. had a steady job and was buying her own home.

As for visitation, Mother was consistently 15 to 20 minutes late, which was disappointing to P. Mother also had failed to show up on one occasion. However, when visitation between Mother, P., and S. occurred, Mother was affectionate, and the visits went well. R.J. had requested that visitation no longer occur in her home because Mother had exhibited strange behavior during the visits; R.J. believed Mother might have been under the influence of drugs.

R.J. agreed that after adoption she would maintain some visitation between the girls and their parents. P. had stated she was happy to be adopted by R.J. but wanted continued visitation with her mother and father.

On May 6, 2009, Mother filed section 388 petitions in regard to the girls.

F. Hearing on the Section 388 Petitions and Section 366.26 Hearing

The hearing on the section 388 petitions and the contested section 366.26 hearing were conducted on May 5, 2009.^[4] The trial court found that none of exceptions in section 366.26, subdivisions (c)(1)(A) through (F) applied. It terminated the parental rights of Mother, J.J., and M.C., freeing P. and S. for adoption.

II

DENIAL OF MOTHERS SECTION 388 PETITIONS

Mother claims the trial court erred by denying her section 388 petitions because she had shown changed circumstances, and it was in the best interests of S. and P. to grant the petitions.

A. Additional Factual Background

Mother filed written section 388 petitions for S. and P. claiming that since reunification services had been terminated, she had consistently attended NA and AA meetings and had been doing well in a drug treatment program. She attached the same documentation to both petitions showing that she had been accepted into a drug treatment program on March 27, 2009, and was doing well.

Mother argued at the hearing on the section 388 petitions that she was progressing remarkabl[y] well in the drug treatment program. She had completed more services in the previous four months than during the 18-month review period. She had maintained consistent visitation. P. enjoyed visitation with Mother. Mother asked that reunification services be reinstated and that the section 366.26 hearing be vacated.

The Department requested that the section 388 petitions be denied. Mother was admitted to the treatment program in March 2009. She had been involved with the Department since 2002 and had four children born testing positive for controlled substances. Her enrollment in a treatment program in March 2009 was not enough to show changed circumstances. Further, P. and S. were doing very well in the adoptive home.

The trial court denied Mothers section 388 petitions. P. and S. had been removed from Mothers custody in May 2007, and she had not sought treatment until March 2009. Mother had been given reunification services for a significant period of time and had done nothing during that time. The trial court ruled, There may be a change, but the Court is left to speculate whether this is a change that will last a month or for a lifetime, and the Court has to consider the best interest of the children. [] I find that in many ways it, at this point, is too little too late for the mother, so I am not finding a change of circumstances on the mothers behalf.

B. Analysis

Under section 388, a party may petition the court to change, modify or set aside a previous court order. ( 388, subd. (a).) A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. [Citation.] The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. [Citation.] (In re S.J. (2008) 167 Cal.App.4th 953, 959-960 [Fourth Dist., Div. Two].) It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . . (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)

Here, the juvenile court found that there were no changed circumstances as the changes that Mother did make were too late. 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 . . . might be able to reunify at some future point, does not promote stability for the child or the childs best interests. [Citation.] [C]hildhood does not wait for the parent to become adequate. [Citation.] (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)

Mother had tested positive for marijuana when she gave birth to P. in 2000 and positive for methamphetamines when she gave birth to S. in 2007. In between, in 2002, she gave birth to A., who also tested positive for methamphetamines, in 2002. Mother tested positive for amphetamines on September 2, 2008. In 2005, she had two arrests for possession of controlled substances. In early 2009, Mother gave birth to C., and both she and C. tested positive for methamphetamines. Clearly, Mothers drug problems spanned at least a seven-year period and was serious. Despite being in jeopardy of losing P. and S. to adoption, she continued to use methamphetamines, as evidenced by her use during her pregnancy with C.

During the 18 months that Mother was granted reunification services, she completed practically none of her case plan. She never followed through on an in-patient drug program despite being advised numerous times that she must complete such a program.

Mother claims in her brief that the juvenile court could see that Mother was at an indescribable disadvantage because she was raised by a mother who was drug addicted herself. Although it may be true that Mother was raised in an environment that involved drug use, it does not excuse that for 18 months Mother did very little to complete her case plan. Had Mother made any concerted effort during the 18-month review period, the results of these proceedings might have been different. This equally applies to her argument in the reply brief that the intensity of the drug treatment program in which Mother was participating warranted granting her section 388 petition. Even if it was an intense program, the juvenile court simply did not have a prolonged period of sobriety and program participation on which to rely to justify a grant of further reunification services.

The juvenile court did not abuse its discretion when it found that Mother had not established by a preponderance of the evidence that her circumstances were changed rather than merely changing. (In re Casey D. (1999)70 Cal.App.4th 38, 47.) The trial court properly found that there were no changed circumstances.

Although not addressed by the juvenile court because it found no changed circumstances, it reasonably could have found that granting the petition would not be in the best interest of S. and P. Once services have been terminated, the juvenile courts focus shifts from family reunification to the childs permanent placement and well-being, and the burden accordingly shifts to the parent to show that a termination of parental rights is not in the childs best interests. [Citations.] (In re Nolan W. (2009) 45 Cal.4th 1217, 1235.)

S. had never lived with Mother. Further, P. had been taken care of by J.A. for a majority of her life. When P. was detained, she was under weight, and her upper teeth were rotten. There was little or no food in the home, and it was a known drug house. Mother had no permanent residence other than with J.A., where drugs continued to be found throughout the dependency proceeding. Mother had no job and had only a few months of drug treatment to combat her at least seven-year addiction. Although visitation between Mother and S. and P. was pleasant for all, Mother was consistently late.

On the other hand, P. and S. were thriving in R.J.s home. P. was getting good grades; she was healthy and receiving the necessary medical and dental treatment. S. was a happy baby and was bonded to R.J., who was willing to adopt both children in order to maintain their sibling relationship. This relative placement clearly promoted future relationships with Mother and her children while protecting the childrens stability and well-being.

The juvenile court reasonably could have concluded that the childrens best interest was the stability that adoption by R.J. would provide rather than providing additional reunification services to Mother in the hopes that she might be able at some point to provide a stable home environment for the girls. Mother did not have a stable home and was still addressing her significant drug problems.

Accordingly, based on the juvenile courts finding that Mother had failed to show changed circumstances, and because it was not in the childrens best interests to grant the petition, the juvenile court did not abuse its discretion by denying Mothers section 388 petitions.

III

BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION

Mother contends that the juvenile court erred by finding the beneficial parental relationship exception in section 366.26, subdivision (c)(1)(B)(i) did not apply here.

A. Additional Factual Background

At the contested section 366.26 hearing, the Department submitted on its section 366.26 report. The trial court also indicated that it would consider the evidence submitted with the section 388 petitions. Stipulated testimony was submitted that if P. were to testify, she would say that she wanted to live with Mother, but if she could not, she wanted to be adopted. P. wanted to continue visitation with Mother and J.J.

Mother argued the beneficial relationship exception applied. While Mother had not finished her case plan, she had maintained visitation. Further, there was a bond between Mother and each of the girls. Mother asked that the juvenile court consider a lesser plan of legal guardianship. J.J. wanted R.J. to adopt P.

The trial court found that S. and P. were adoptable. It ruled as to the beneficial relationship exception, Notwithstanding [P.] indicating that she would like to live with her mother and the desire for continuing that relationship, I think the uniqueness of the current caregiver and potential adoptive parent is one that will guarantee that that relationship continues, notwithstanding adoption. [] I do not find that any of the exceptions to adoption apply in this case. Later, in advising the parents as to what had occurred, the juvenile court stated, Ive ruled against you today. I just think its in their best interest. After two years, these children really need stability, and I believe the best opportunity for that is in the home that they are currently in, so Ive made that ruling.

B. Analysis

In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. ( 366.26, subds. (b)(1) & (c)(1).) This rule is subject to a number of statutory exceptions (id., subds.(c)(1)(A) & (c)(1)(B)(i)-(c)(1)(B)(vi)), including the beneficial parental relationship exception, which applies when termination would be detrimental to the child because [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Id., subd. (c)(1)(B)(i).) There must be a compelling reason to apply the beneficial parental relationship exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.)

The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. [Citations.] (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) We determine whether there is substantial evidence to support the courts ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold a courts ruling. [Citation.] The reviewing court must affirm the trial courts rejection of these exceptions if the ruling is supported by substantial evidence. [Citations.] (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.)

Although not specifically found by the juvenile court, the evidence did establish that Mother maintained regular visitation throughout the dependency proceeding. Although she was late to many of the visitations, she was present at a majority of the visits and interacted with her children. Hence, the only question was whether the juvenile court properly found that S. and P. would not benefit from maintaining the parent-child relationship with Mother.

[C]ourt[s] ha[ve] interpreted the phrase benefit from continuing the relationship to refer to a parent-child relationship that promotes 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 parent's rights are not terminated. [Citation.] (In re Mary G., supra, 151 Cal.App.4th at p. 207.) The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.] (Ibid.)

Here, as set forth extensively, ante, Mother had a severe drug problem and had only recently entered into treatment. She did not have a stable living environment. Although P. expressed an interest in living with Mother, there is no indication that S. had any significant bond with Mother. S. had never lived with Mother. Further, although P. certainly could be expected to want to be with her Mother, she had not done well in Mothers care. She was underweight and her teeth were rotting at the time of the detention. She had been living in a home where drugs were used on a regular basis, and Mother had no means of leaving that environment. Mother continued to struggle with her drug problem, as evidenced by giving birth to a fourth child who had tested positive for methamphetamines late in these dependency proceedings.

Both P. and S. needed a permanent, stable, and loving home. R.J. was able to provide that. Finally, we agree with the Department that the record supports that R.J. would maintain contact between Mother and S. and P.

There is no evidence that S. and P. would be greatly harmed by severing their relationship with Mother. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953.) There was substantial evidence presented to support the juvenile courts finding that the beneficial parental relationship exception to terminating parental rights did not apply.

IV

DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

MILLER

J.

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

^[2] J.J. and M.C. have not filed appeals in this case.

^[3] C. is not a subject of the instant appeal.

^[4] Although the section 388 petitions filed by Mother were dated May 6, 2009, it is clear a hearing on the petitions was held prior to the termination of parental rights.