In re R.N.

Filed 9/14/06 In re R.N. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired Judge of the Imperial Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Tracey V. appeals a judgment terminating her parental rights to her minor daughter, R.N., under Welfare and Institutions Code section 366.26.[1] Tracey contends the court erred by denying her section 388 petition for modification seeking to have R.N. returned to her custody.[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2004, the San Diego County Health and Human Services Agency (the Agency) filed a petition in the juvenile court on behalf of newborn R.N. under section 300, subdivision (b). The petition alleged R.N. was born with a positive toxicology for cocaine and that Tracey had admitted to smoking cocaine twice a month while pregnant. The petition further alleged R.N. was at risk of suffering serious physical harm or illness because of Tracey's drug use. The Agency's detention report revealed Tracey had a long history of substance abuse that had remained untreated. In addition, Tracey reported she had already lost custody of her other three children due to substance abuse. At the detention hearing, the court made a prima facie finding on the petition. The court ordered R.N. detained in out-of-home care and granted Tracey supervised visitation.

According to the jurisdiction/disposition report, Tracey had been offered services on behalf of her three older children but was unable to reunify with them. Tracey expressed to social workers she was undecided as to whether she wanted to reunify with R.N. or relinquish her for adoption. The Agency provided Tracey with referrals for services and Tracey was made aware she had six months to complete her case plan or a permanent plan may be implemented for R.N. At the jurisdiction and disposition hearing, the court found the allegations of the petition to be true by clear and convincing evidence, declared R.N. a dependent, and placed her in foster care. The court ordered Tracey to participate in the Substance Abuse Recovery Management System (SARMS) program and other reunification services.

In its six-month status report, the Agency noted Tracey had participated in parenting classes, had begun individual therapy, and was showing a strong willingness to participate in services. Tracey acknowledged to social workers she was benefiting from the parenting classes and therapy. However, Tracey tested positive for drugs and had yet to secure full time employment. The Agency recommended Tracey remain enrolled in a structured drug treatment program for an additional six months. At the October 2004 six-month review hearing, the court found Tracey had made moderate progress with her case plan and ordered six additional months of reunification services.

During the next six months, the court ordered Tracey to participate in dependency drug court at her own request because she needed additional supervision and support in order to follow her drug recovery plan. At the time of her 12-month review hearing, Tracey had been drug free for about three months. She had completed a parenting class, was continuing with therapy and remained in compliance with the requirements of the SARMS program. The social workers allowed Tracey to begin having short, unsupervised visits with R.N. The frequency of Tracey's visits with R.N. went beyond the social workers' expectations. The Agency recommended six additional months of services and, at the April 2005 12-month review hearing, the court followed the Agency's recommendations and ordered an additional six months of services.

In its 18-month report, the Agency reported Tracey began to have difficulties complying with her drug treatment program. In May 2005, she was discharged from the drug program for repeated unexcused absences. She also tested positive for cocaine use and spent three days in custody. Tracey did not appear in drug court on several occasions and was discharged from the drug court program. Shortly thereafter, Tracey told her SARMS counselor she did not want to continue attending the drug treatment program. She stopped attending therapy and domestic violence counseling and told the social worker she decided she wanted R.N. to be placed for adoption.

The Agency further reported Alfred N., R.N.'s father, had been released from prison and was living with Tracey. About one month after his release, Alfred threatened to kill Tracey, in addition to choking her and inflicting bruises to her arm. Tracey refused domestic violence treatment and told the social worker she was "not a victim." At the contested 18-month review hearing, the court found returning R.N. to Tracey's custody would be detrimental. The court terminated reunification services and set a selection and implementation hearing.

In its section 366.26 reports, the Agency highlighted Tracey's lack of success with her case plan and denial for the need of domestic violence treatment. Tracey continued to struggle with her untreated drug addiction and did not recognize the impact domestic violence would have on R.N. The social worker believed Tracey did not have a beneficial parent relationship with R.N. and continuing the relationship would result in detriment to R.N. The Agency recommended a permanent plan of adoption for R.N. in order to provide her with stability and security.

Tracey filed a section 388 petition for modification, seeking to have R.N. returned to her custody. In support of her petition, Tracey alleged she was employed as a caregiver and was participating in services. The services included attending group meetings at the CRASH program. The meetings addressed issues of domestic violence, substance abuse, and parenting. She further alleged her relationship with Alfred had ended and that he was now in custody and not scheduled to be released for a long time. Tracey stated it would be in R.N.'s best interests to be returned to her because she loved R.N. and R.N. expressed love and affection for her.

At the April 2006 hearing on her modification petition, Tracey testified she was employed as a caregiver and was participating in services. These services included 12-step meetings, and currently she was in the process of working on step number one. Tracey expressed her love for R.N. and felt that R.N. reciprocated the love. Tracey admitted her last visit with R.N. was two or three months before the hearing and that she was now pregnant with her fifth child.

The court considered a bonding study conducted by Dr. Raymond Murphy. The study assessed the nature of Tracey and R.N.'s relationship. Dr. Murphy noted R.N. displayed affection toward Tracey by giving her lots of hugs. Tracey brought R.N. several toys to play with and R.N. enjoyed playing with Tracey. However, most of the physical contact was initiated by Tracey, and although R.N. was aware of Tracey's presence, R.N. generally did not reciprocate the love and attention she received. Dr. Murphy did not believe R.N.'s behavior evidenced that she had a "primary attached relationship" with Tracey.

Social worker Carol Fowler agreed with Dr. Murphy's assessment and testified R.N. would remain at high risk of abuse or neglect if returned to Tracey's custody. Fowler based her opinion on Tracey's ongoing drug addiction, her failure to complete a domestic violence program, and the fact that she had already lost custody of her three other children.

After considering the reports and testimony of witnesses, the court denied Tracey's section 388 petition. The court subsequently adopted the Agency's recommendations and terminated parental rights. Tracey timely filed a notice of appeal from the denial of her section 388 petition. She later timely filed an amended notice of appeal to include the judgment terminating her parental rights, denial of the section 388 petition, and all other related orders.

DISCUSSION

Tracey contends the court erred by denying her section 388 modification petition to have R.N. returned to her custody. Tracey asserts she showed: (1) circumstances had changed; and (2) granting her petition was in R.N.'s best interests.

A

Under section 388 a parent may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) When two or more inferences reasonably can be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M., at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.

When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity " 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.) Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interests of the child." (Ibid.)

B

As changed circumstances, Tracey alleged she had obtained employment, secured her own apartment, and was participating in recovery meetings that addressed several issues including domestic violence, substance abuse and parenting. She also enrolled in a 12-step Narcotics Anonymous (NA) program and ended her relationship with Alfred. However, the evidence shows Tracey's circumstances had not sufficiently changed. Tracey had yet to complete any of these recovery services and she was still working on completing the first step of the NA program. She claimed she tested drug free about two months before the hearing but she did not produce documents confirming the test results. Even assuming Tracey was remaining drug free, any recent sobriety in light of her lengthy history of drug abuse and prior failed attempts at rehabilitation and reunifications services showed her circumstances at best were merely "changing." A petition that alleges merely changing circumstances does not promote stability for the minor or the minor's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Casey D., supra, 70 Cal.App.4th at p. 47.)

Even had Tracey shown sufficient changed circumstances, she did not show returning R.N. to her custody was in R.N.'s best interests. After termination of reunification services, the focus of dependency proceedings is to provide the child with permanency and stability. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256; In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The problems leading to dependency were serious. Tracey abused drugs for many years, resulting in her inability to care for her first three children. She used drugs while pregnant with R.N. and R.N. tested positive for cocaine at birth. During the dependency period, Tracey had enrolled in and failed to complete several drug treatment programs, continued to test positive for drug use, and had failed to recognize the detriment domestic violence would have on R.N. Further, at the time the court held a hearing on the section 388 petition, R.N. had been out of Tracey's custody for more than two years. Although Tracey had appropriate visits with R.N. during this time, Tracey showed no indication she would be able to parent R.N. In addition, their relationship did not outweigh R.N.'s need for stability and security. According to the bonding study, R.N. did not show signs of being attached to Tracey. It therefore was not in R.N.'s best interests to postpone implementing a permanent plan of adoption. The court acted within its discretion by denying Tracey's section 388 modification petition.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

McINTYRE, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

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

[2] Initially, we dispose of the Agency's contention urging us to dismiss the appeal. The Agency contends Tracey's notice of appeal indicated she was appealing the judgment terminating parental rights under section 366.26 and the order denying her section 388 modification petition. Tracey did not, however, address the judgment terminating her parental rights in her opening brief. The Agency asserts Tracey abandoned her appeal by failing to raise any contentions concerning the termination of her parental rights rendering her challenge of the section 388 petition moot. When a parent appeals the termination of parental rights at the section 366.26 hearing, appealing the termination ruling preserves appeal of a section 388 petition raised at the section 366.26 hearing. (See In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316-1317.) Under section 366.26., subdivision (b)(1), adoption may not go forward, of course, until after the appellate rights of the parents have been exhausted. An appellant normally abandons an issue set forth in the notice of appeal by not addressing it in his or her briefing. (See Martinez v. County of Los Angeles (1986) 186 Cal.App.3d 884, 887, fn. 2.) However, in this specific situation arising in dependency appeals, a parent need not specifically address the section 366.26 issue since the termination of parental rights must necessarily be reversed if the section 388 petition was erroneously denied.