In re S.A.

Filed 5/15/08 In re S.A. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellant, the mother of the minor, appeals from the juvenile courts order terminating parental rights. (Welf. & Inst. Code, 366.26, 388, 395.)^[1] Appellant contends the juvenile court erred by denying her request for modification and that her due process rights were violated by the termination of her parental rights. We shall affirm.

Facts and Procedural History

In April 2007, a dependency petition was filed by the Sacramento County Department of Health and Human Services (the Department) concerning the one-week-old minor, alleging that appellant had tested positive for methamphetamine 10 days before the minors birth and had used methamphetamine on and off throughout her pregnancy. The petition further alleged that appellant had an extensive history of substance abuse and had failed to participate in court-ordered treatment on multiple occasions. According to the petition, appellants parental rights to six other children had been terminated in dependency proceedings between 2001 and 2007.

Appellant did not contact the Department to visit the minor for nearly two weeks after the minor was placed in protective custody, claiming she had not known whom to contact. When interviewed by the social worker, appellant stated she was willing to do anything necessary to reunify with the minor. Appellant completed a substance abuse assessment and attended outpatient treatment while awaiting admission into an inpatient program. However, she admitted she had used methamphetamine and alcohol two days prior to her assessment.

Appellant entered residential treatment in late April 2007.  By the time of the jurisdictional hearing in June 2007, she had remained in residential treatment and was having weekly visits with the minor. Appellants counselors at the residential treatment program spoke highly of her participation and attitude. Nonetheless, the juvenile court sustained the allegations in the petition in relevant part and denied reunification services based on section 361.5, subdivision (b)(11) (bypass of services when parental rights to another child have been severed and there has been no reasonable effort to treat the problems leading to removal of that child). The court noted that appellant had made recent efforts to address her substance abuse but that it was so late in light of her history that it could not be considered a reasonable effort under all the circumstances. A section 366.26 hearing was set to select and implement a permanent plan for the minor.

Approximately two months later, appellant filed a request to modify the juvenile courts order denying services. As changed circumstances, appellant alleged she had completed residential treatment and was living in transitional housing, she continued to test negative for controlled substances, she had completed a parenting class, she was attending counseling and she continued to visit the minor. She asserted it would be in the minors best interests to order reunification services because [she] has shown her commitment and willingness to follow through.

Meanwhile, according to the report for the section 366.26 hearing, the minor had been placed in a prospective adoptive home and had bonded with the family. With regard to visits, it was reported that appellant had refused to follow the rules set for the visitation, did not accept direction regarding the care of the [minor] and got into arguments with the family service worker. The social worker acknowledged that appellant was participating in an array of services but recommended against granting appellants request for modification based on appellants lengthy substance abuse history, her failure to express concern for the well-being of her last child to be made a dependent and her contentiousness with the family service worker. The social worker was concerned that even though [appellant] is in recovery, enough time has not elapsed that her overall success and behaviors can be judged adequately.

The hearing on appellants request for modification occurred in December 2007. Appellant testified that she had been in residential treatment for 90 days, where she participated in programs addressing parenting, anger management, domestic violence, relapse prevention, life skills, money management and triggers. According to appellant, she then went into transitional housing, followed by another program in which she went to treatment four days per week for three months. At the end of November, appellant moved into a two-year program, where the minor would be able to live with her. Appellant was having monthly visits with the minor.

Appellant (who was 32 years old at the time of the hearing) acknowledged she had used methamphetamine regularly since age 21, including during her pregnancy with the minor. She explained that, previously, she did not admit she had a problem and blamed the fact that she lost her children on others. She testified: Im doing everything I can to fix it[.]

The juvenile court found changed circumstances in appellants commitment to her sobriety, but concluded it would not be in the best interests of the minor to forego permanency . . . while further efforts at reunification are made with [appellant]. In support of this conclusion, the court pointed to appellants lengthy history of drug abuse, the fact that this was her first serious attempt at rehabilitation, her lack of a relationship with the minor and her resistance to direction from the Department.

Following its denial of appellants modification request, the juvenile court proceeded with the section 366.26 hearing. Appellant did not present any evidence but entered an objection to the Departments recommendation. The court terminated parental rights and ordered a permanent plan of adoption.

Discussion

I

Appellant contends that the order terminating her parental rights violated her right to due process, claiming that, because she overcame the presumption that reunification services would be fruitless prior to the section 366.26 hearing, the court was left without [the] clear and convincing evidence of parental unfitness it needed to terminate appellants parental rights[.] This claim is without merit.

Initially, we note that appellant did not assert this claim before the juvenile court and arguably has forfeited the issue. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)

In any event, under Californias dependency scheme, the finding of unfitness required before a court may terminate parental rights is established at hearings occurring prior to the section 366.26 hearing. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) By the time termination is possible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer reason to believe that positive, nurturing parent-child relationships exist [citation] and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished. (Id. at p. 256.)

Appellant argues that, because she was not granted reunification services, she was not afforded the numerous findings of parental unfitness contemplated by the statutory scheme. She acknowledges that a finding under any of the subdivisions in section 361.5, subdivision (b), has the potential to satisfy the parental unfitness finding, but maintains that a static finding in this regard, along with a finding justifying removal, do not always combine to make the more long-term showing [of] unfitness at the section 366.26 hearing. Without authority, she asserts that where a parent overcomes the presumption that services will be fruitless by participating in services without the assistance of the Department, section 361.5 unconstitutionally results in a parent arriving at a section 366.26 hearing before clear and convincing evidence of parental unfitness has been developed.

Appellant is mistaken. Appellant was denied services under section 361.5, subdivision (b)(11), which provides for a bypass of services when it is shown by clear and convincing evidence that parental rights to another child have been severed and the parent has not subsequently made a reasonable effort to treat the problem leading to removal of that child. A parent who has not made reasonable efforts to treat a problem that is sufficiently severe to have led to termination of parental rights with another child has demonstrated unfitness as a parent. This procedure does not run afoul of the federal Constitution: After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. (Santosky v. Kramer (1982) 455 U.S. 745, 760 [71 L.Ed.2d 599], italics omitted.) Thus, additional evidence of unfitness is unnecessary and irrelevant to the inquiry at a permanent plan hearing.

In appellants case, the evidence of unfitness at the dispositional hearing wascompelling. She had failed to reunify with six other children as a result of her substance abuse, resulting in the termination of her parental rights to each of those children. Her participation in reunification services in the past had been nearly nonexistent. She used drugs throughout her pregnancy with the minor and tested positive for drugs and alcohol after the dependency proceedings had been initiated. Appellants unfitness was well established at the dispositional hearing. Due process did not require that it be reestablished at the section 366.26 hearing.

II

Appellant also contends that the juvenile court abused its discretion by denying her request for modification. Again, we disagree.

Section 388, subdivision (a), provides in part: Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.

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 best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The petitioning party has the burden of proof by a preponderance of 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. (In re 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 childs need for prompt resolution of his custody status. (In re Marilyn H., supra, at p. 309.)

The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parents 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.)

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. (1994) 8 Cal.4th 398, 415.)

In the present matter, the juvenile court noted that if it granted the requested modification, the minor, who had never lived with appellant and had little relationship with her, would be placed in limbo while appellant attempted to reunify with her, and that this would not be in the minors best interests. As mentioned previously, our Supreme Court has held that a childs needs for stability and permanence are the focus when a request for modification is brought after the termination of reunification services. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Such was the juvenile courts focus here.

Inexplicably, appellant cites In re Kieshia E. (1993) 6 Cal.4th 68--a case addressing the de facto parent doctrine--in urging that her modification request was in the minors best interests because no evidence existed to overcome the presumption in favor of family reunification. To the contrary, the evidence in support of the juvenile courts earlier finding under section 361.5, subdivision (b)(11), overcame any presumption favoring reunification.

Nor do we agree with appellant that her extensive history of substance abuse was irrelevant to the juvenile courts evaluation of her request for modification. Appellant had been in recovery for only a brief time relative to her years of substance abuse. She remained in a treatment program, suggesting that her sobriety was still a work in progress. In most cases, if a parents circumstances have not changed sufficiently to permit placement with that parent of an otherwise adoptable child, reopening reunification does not promote stability for the child or the childs best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) Appellants history of substance abuse was an important factor in making this determination.

Relying on In re Kimberly F., supra, 56 Cal.App.4th 519, appellant also mistakenly suggests that, by considering the minors bond with her foster parents and her lack of a bond with appellant, the juvenile court improperly engaged in a simple comparison of households. The court did no such thing.  As recognized by the appellate court in Kimberly F., it is vital to consider a childs bond to his or her parent and present caretaker when determining the childs best interests for purposes of a modification request. (Id. at p. 531.) The juvenile court here appropriately noted that appellant had very little relationship with the minor. It did not engage in a comparison of the social and economic advantages the minor would be afforded in appellants versus the foster parents household in making its evaluation, which would have been improper.

In sum, the juvenile court acted well within its discretion in concluding that a modification of its prior order was not in the minors best interests.

Disposition

The juvenile courts orders are affirmed.

DAVIS, Acting P.J.

We concur:

HULL, J.

ROBIE , J.

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^[1] Hereafter, undesignated section references are to the Welfare and Institutions Code.