In re Walter D.

















Filed 12/10/12 In
re Walter D. CA2/4

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION FOUR




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In re WALTER D., a Person Coming Under the Juvenile Court Law.	B238514
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANGELA A., Defendant and Appellant.	(Los Angeles County Super. Ct. No. J972681)

APPEAL
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Stanley Genser, Referee. Affirmed.

Cristina
Gabrielidis Lechman, under appointment by the Court of Appeal, for Defendant
and Appellant.

Office
of the County Counsel, John F. Krattli, Acting County Counsel,
James M.Owens, Assistant County Counsel, Jeanette Cauble, Deputy County
Counsel for Plaintiff and Respondent.

Angela A. appeals from an order of
the juvenile court terminating her
parental rights to her son, Walter D., and finding him adoptable. She contends the court erred in finding
Walter adoptable and in denying her motion under Welfare and Institutions Code
section 388.href="#_ftn1" name="_ftnref1"
title="">^[1] We find no basis for
reversal and affirm.



FACTUAL AND PROCEDURAL SUMMARY

Mother
had a long history of substance abuse.
She had lost custody of Walter’s eight older siblings through href="http://www.fearnotlaw.com/">dependency proceedings. Her parental rights had been terminated as to
six of them, and two were in legal guardianships. Walter was born in July 2010, while his
mother was in custody. He tested
negative for drugs. Walter’s alleged
father was incarcerated and is not a party to this appeal. The Department
of Children and Family Services (DCFS) filed a petition alleging that
Walter is a child coming within the jurisdiction of the juvenile court under
section 300, subdivisions (b) and (g).
Walter was detained in foster care.
Reunification services were not recommended for the parents pursuant to
section 361.5, subdivision (b). A first
amended petition was filed in September 2010, alleging jurisdiction under
section 300, subdivision (b) because mother’s 23-year history of substance
abuse made her unable to provide care and supervision for the child.

The
jurisdiction report outlined mother’s criminal history. Initially, mother admitted her long history
of substance abuse, but maintained that she did not need a treatment program to
address the issue. At the adjudication
hearing, mother submitted on the first amended petition. It was sustained as further amended, finding
that Walter is a minor described by section 300, subdivisions (b) and (g). Walter was in respite care with an aunt. He screamed and cried whenever placed on his
back and exhibited shakiness. After
being hospitalized for a cold, he was at home with a nebulizer. The aunt was willing to adopt him.

At
the contested disposition, the court admitted DCFS reports. Mother did not submit any evidence, but her
attorney asked the court to grant reunification services. Mother planned on entering a transitional
house shortly. Walter was declared a
dependent of the court and was removed from the custody of his parents. The court denied reunification services to
mother. A permanency planning hearing
was set pursuant to section 366.26.

The
DCFS report for the section 366.26 hearing stated that Walter was receiving
excellent care from his aunt, who had adopted one of his siblings. DCFS found the home to be a stable and
nurturing environment. Walter was in
good health, and his breathing condition was improving. Walter was meeting developmental milestones,
and was rejected for early start services at a regional center because he did
not have an established risk condition exhibiting significant developmental
delays. At eight months, he was sitting
with support, holding a bottle, and growing two front teeth. He enjoyed meals, naps, and slept well at
night. Mother’s monitored visits with
Walter were going well. He also had
frequent sibling visits. The aunt
remained committed to adopting Walter, who had a strong bond with her. DCFS reported that mother had not taken steps
toward sobriety and continued to struggle with her addiction. A continuance was requested by DCFS because
the adoption home study for that aunt’s home was incomplete due to the need to
complete additional paperwork.

In
a status review report prepared for June 3, 2011, the children’s social worker
reported that Walter was clean, well cared for, and well dressed. He was comfortable with his aunt, Brenda A.,
and her son, J. He was very alert,
rolling over, eating well, cooing, and reaching out to people. Brenda A. was cooperative and in regular
contact with the social worker. DCFS
continued to recommend that Walter be adopted by Brenda A. Mother’s whereabouts were unknown because she
had left her treatment program and refused the entreaties of her family to
return. The section 366.26 hearing was
continued to October 11, 2011 because the adoptive home study was not yet
complete.

On
October 11, 2011, mother filed a section 388 petition, alleging she was in an href="http://www.fearnotlaw.com/">outpatient treatment program and was
consistently visiting Walter. She sought
to have Walter placed with her. She
submitted a letter from a 9 to 12 month intensive drug abuse program which
reported that she was consistently attending the program and actively
participating. Her six drug tests had
been negative. The court set a hearing
on the section 388 petition and a contested section 366.26 hearing.

DCFS
recommended against granting the section 388 petition because mother had left
her treatment program for 13 days, during which she relapsed. In addition, concerns were raised about her
visits with Walter and another son, because she continued to smoke despite
requests by Brenda A. to stop due to the impact on Walter’s breathing. Mother had been sober for only a short
time. The social worker met with mother,
and the executive director of the substance abuse program where mother resided
in a sober living house. Mother was
clean and sober and impressed the social worker with her progress in treatment.


A
second meeting was held with mother, the treatment program director, the social
worker, and members of mother’s family.
After mother expressed regret for her earlier choices, she said she
remained committed to sobriety. Her
family members supported her, but said that they did not believe she was ready
to parent a child in light of her prior cycles of treatment, relapse, and
failure to successfully parent her children.
Three of mother’s adult children told her they did not believe she was
ready to parent Walter. Mother became
upset and stormed out of the room, slamming the door so hard it shook the
walls. Security was called as a
precaution. Mother said that she was
angry because her family was ganging up on her rather than supporting her
sobriety. She was able to calm down and
return to the meeting. Mother had tested
clean for drugs continuously on nine occasions.
DCFS recommended that the section 388 petition be denied because mother
had not had sufficient time to demonstrate that she could remain sober and
parent Walter.

In
December 2011, DCFS notified the court that a co-adoption home study had
approved the maternal aunt, Brenda A. and her son J. to adopt Walter. J. was employed as Brenda’s In-Home Support
Services worker. Although Brenda had
some health problems, her physician concluded that she could adopt Walter. Neither Brenda nor J. had a history of
arrests or convictions, or DCFS referrals.
They understood the responsibilities of adoption and were committed to
adopting Walter and providing him a permanent home. Walter was found to be happy and thriving in
their home.

At
the section 388 hearing on December 2, 2011, mother requested family
reunification services, based on her successful enrollment in a drug treatment
program where she had tested negative for drug use. It was expected that she would complete the
program in February. She had regular
visits with Walter. The court expressed
doubt about mother’s completion of the program in two months, in light of her
earlier relapse and absence from the program.
Mother’s counsel argued that sufficient changed circumstances had been
demonstrated to establish that reunification services would be in Walter’s best
interests. Counsel for Walter asked the
court to deny the petition. He
acknowledged mother’s recent progress, but emphasized that Walter was mother’s
ninth child in the dependency system and that she had lost custody of the other
eight. He cited mother’s history of
treatment and relapse. He argued that
mother had not demonstrated sufficient changed circumstances and that
reunification services would not be in the child’s best interests. Walter had been with his aunt Brenda since he
was age four months and was doing well.
Walter’s counsel argued it was in his best interest to be with Brenda
where he had a stable home and extended family support. DCFS argued that mother had not met the
criteria for a section 388 petition.

The
juvenile court ruled that mother had not met either prong of section 388. In light of mother’s lengthy history of
addiction and failed attempts at sobriety, and the fact that she had been in
treatment for less than a year, the court found that she had not established a
substantial change in circumstance. The
court also found that there was “absolutely no evidence presented that it would
be in the best interest of the child at this stage of [the] proceedings to
provide mother further family reunification services that would deny the child
permanency which is set by statute in terms of timetables.” The court found that the likelihood of mother
reunifying with Walter within six months was very slim because of her
history. It concluded that mother had
not met her burden of proof and denied her section 388 petition with prejudice.

The
court then held the section 366.26 hearing.
Mother testified that Walter had been out of her care his entire life,
and that she had visited him every Saturday for the preceding six months. She described spending time with Walter and
three of her other children. Mother
admitted smoking during her visits with Walter.
Her attorney argued that parental rights should not be terminated
because she has a bond with the child.
He asked the court to consider a legal guardianship, which would give mother
an opportunity to file another section 388 petition once she completed her
treatment program.

Counsel
for Walter asked the court to terminate parental rights because Walter was
adoptable and the aunt had an approved home study. She argued that mother had not demonstrated
that an exception to adoption applied under section 366.26. The court found that Walter is
adoptable. It ruled that there was no
evidence that severing mother’s parental relationship would cause him any
detriment. The court also found that
mother had not acted in a parental role with Walter. Her parental rights were terminated. Adoption was identified as the permanent
plan.

Mother
filed a timely appeal from these
orders.



DISCUSSION

I

Mother
argues the court erred in denying her section 388 petition because she had a
record of demonstrated sobriety and because Walter likely would continue to
have her in his life.

A
parent may petition the juvenile court under section 388 to change any previous
order. (§ 388, subd. (a).) “The petitioner has the burden of showing by
a preponderance of the evidence (1) that there is new evidence or a change of
circumstances and (2) that the
proposed modification would be in the best interests of the child. [Citations.]”
(In re Mickel O. (2011) 197
Cal.App.4th 586, 615.) “[T]he petitioner
must show changed, not changing,
circumstances. [Citations.] The change of circumstances or new evidence
‘must be of such significant nature that it requires a setting aside or
modification of the challenged prior order.’
[Citation.]” (>Ibid.)
The denial of a section 388 petition is reviewed for abuse of
discretion. (Id. at p. 616.)

We
find no abuse of discretion on this record.
While mother had some success in treatment, she had not yet completed
the program and admittedly had left it once before during a relapse. She had been sober for only six months. In light of her lengthy history of substance
abuse and failed treatment attempts, this progress does not constitute changed
circumstances sufficient to meet the first requirement of section 388.

Mother
argues that reunification services were in Walter’s best interests “because
Walter was likely to continue to have Mother in his life.” She explains this is because Walter was
placed with a maternal aunt who intended to allow mother future contact. She contends that reunification services
should have been ordered to promote her continued sobriety. While mother may have shown that
reunification services would have been in her best interest, she did not
demonstrate how they would have been in Walter’s interest.

The
juvenile court did not abuse its discretion in denying the section 388
petition.

II

Mother
challenges the sufficiency of the evidence to support the court’s finding that
Walter was adoptable.

“At
a section 366.26 hearing, the court may select one of three alternative
permanency plans for the dependent child—adoption, guardianship or long-term
foster care. [Citation.] If the child is adoptable, there is a strong
preference for adoption over alternative permanency plans. [Citations.]”
(In re Michael G. (2012) 203
Cal.App.4th 580, 588–589.) “A finding of
adoptability requires ‘clear and convincing evidence of the likelihood that
adoption will be realized within a reasonable time.’ [Citation.]
The question of adoptability usually focuses on whether the child’s age,
physical condition and emotional health make it difficult to find a person
willing to adopt the child.
[Citation.] If the child is
considered generally adoptable, we do not examine the suitability of the
prospective adoptive home.
[Citation.] If the court finds
the child is likely to be adopted within a reasonable time, the juvenile court
is required to terminate parental rights unless the parent shows that
termination of parental rights would be detrimental to the child under one of
the exceptions listed in section 366.26, subdivision (c)(1)(A) and (B). [Citation.]”
(Id. at p. 589.) We review a determination that a child is
generally adoptable for substantial evidence from which the court could find
clear and convincing evidence that the child was likely to be adopted within a
reasonable time. (Ibid.)

Mother
claims Walter’s prognosis for future cognitive and emotional issues is an
obstacle to his adoption. Despite the
fact that he tested negative for drugs at birth, she contends it is likely that
he was exposed to them in utero. She
also cites his premature birth and subsequent href="http://www.sandiegohealthdirectory.com/">breathing problems. Mother points to developmental disabilities
and psychological issues experienced by several of her other children to assert
that Walter is likely to suffer from the same issues. Without citation to the record, mother cites
research from the National Institute of Health regarding the long-lasting
negative effects of prenatal cocaine exposure.


Mother’s
argument is speculative and contrary to the record regarding Walter’s
development. The record establishes that
he was meeting developmental goals, was eating and sleeping well, and
interacting with others. He had been
rejected for services through a regional center because he did not meet the
criteria. Walter was healthy and his
breathing problem was improving. This is
substantial evidence that Walter was adoptable.

Mother
also contends that adoption was an inappropriate plan because there was a
likely legal impediment to a mother and son co-adopting. But since Walter was properly found to be
generally adoptable, the suitability of prospective adoptive parents is not
determinative on the issue whether parental rights should be terminated. The issue as to “whether a dependent child is
likely to be adopted focuses on the child rather than on the prospective
adoptive family.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.) This is not the situation addressed in other
cases where the social worker’s opinion that the child is adoptable was based
solely on the existence of a particular adoptive parent. (Ibid.) The record establishes that Walter is
generally adoptable, not that he is adoptable only by Brenda and J. (Id.
at p. 1651 [opinion that children were likely to be adopted was based on their
young ages, good physical and emotional health, progress in several areas, and
ability to develop relationships].)



DISPOSITION

The
orders of the juvenile court denying mother’s section 388 petition and
terminating her parental rights are affirmed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS







EPSTEIN,
P. J.

We concur:







MANELLA, J.







SUZUKAWA, J.