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In re Marco M.

In re Marco M.

In re Marco M

In re Marco M.

Filed 1/14/13 In
re Marco M. CA4/1








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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 re MARCO M.
et al., Persons Coming Under the Juvenile Court Law.


Plaintiff and Respondent,



Defendant and Appellant.


(Super. Ct. No.

from a judgment of the Superior Court of href="">San Diego
County, Ronald F. Frazier, Judge. Affirmed.

D. appeals the judgment terminating her parental rights to her sons, Marco M.
and Jesus C. (together the boys).
Jasmine contends the juvenile court abused its discretion by denying her
modification petition (Welf. &
Inst. Code, § 388)href="#_ftn1"
name="_ftnref1" title="">[1]
and erred by declining to apply the beneficial relationship and sibling relationship
exceptions (§ 366.26, subd. (c)(1)(B)(i) & (v)) to termination of
parental rights.href="#_ftn2" name="_ftnref2"
title="">[2] We affirm.


Jasmine began using
drugs in 1996 or 1997, when she was 13 years old. She began using methamphetamine in 2000 or
2001, when she was 17 years old. Marco
was born in August 2002 and Jesus was born in May 2006. When Jasmine gave birth to a daughter, T.C.,
in June 2007, they each tested positive for methamphetamine. T.C. became a dependent of the juvenile
court, and Jasmine received more than two years of reunification services. Jasmine completed a substance abuse treatment
program in August 2008 and reunified with T.C. in July 2009. During T.C.'s dependency, Marco and Jesus
remained in Jasmine's care under a voluntary case plan. Jasmine's son J.D., born in June 2008, was
also in Jasmine's care.

Jasmine used
methamphetamine the day after she completed substance abuse treatment. In December 2009, there was a substantiated
report she left the children home alone at night while she was at a neighbor's

In October 2010,
the San Diego County Health and Human Services Agency (the Agency) received a
report Jasmine was neglecting the children.
A social worker went to Jasmine's apartment and found her asleep. When Jasmine woke up, she appeared to be
under the influence of drugs. Jesus and
J.D. ran outside the apartment building, down the sidewalk and past two other
buildings. Jasmine yelled for them to return,
but they ignored her. The social worker
followed Jesus and J.D. and brought them home.
She found cleaning supplies accessible to the children, empty bottles of
medical marijuana and little food.
Jasmine signed a safety plan.
When the social worker returned to the home nine days later, she found
drug paraphernalia and marijuana.
Jasmine admitted she did not have a medical marijuana card.

On November 5, 2010, the Agency filed dependency
for the children. The
petitions alleged Jasmine admitted using methamphetamine in the last two weeks
and marijuana in the last four days. She
said she used drugs when she felt stressed.
She acknowledged she used drugs while caring for the children, but claimed
she took walks so she was not around them when she did so. Marijuana and drug paraphernalia were in the
home and accessible to the children.

The boys were
detained in Polinsky Children's Center (PCC) for two weeks before being moved
to a foster home. The siblings were
detained in a separate foster home. The
boys and siblings remained in separate foster homes throughout the proceedings.

On November 15, 2010, Jasmine admitted that since the children's detention, she had been
drinking alcohol every night until she became dizzy. On November 22, during a visit with the
children at a restaurant supervised by the foster parents, Jasmine ran outside
with the children, put them in a car and drove away with them. Jasmine did not have car seats for the
children and did not fasten their seat belts.
She nearly ran over another child as she drove away from the
restaurant. The police recovered the
children and took them to PCC, where the foster parents picked them up. The boys were distraught. Jasmine was arrested and charged with child
abduction. She pleaded guilty and
received three years' probation.

In January 2011,
the court made true findings on the petitions, ordered the boys placed in
foster care and ordered reunification
for Jasmine. Jasmine began
a new substance abuse treatment program, but was discharged for fraud. She entered another program, but did not
progress. At the six-month review
hearing in September, the court terminated services and set a section 366.26
hearing. A few days later, Jasmine began
another substance abuse treatment program.
She completed the program in March 2012.
In May, the court terminated Jasmine's parental rights to the siblings.

Problems arose with
the boys' foster parents, and on May 17, 2012, after a report of
physical abuse by the foster father, the boys were moved to a respite
home. That month, Jasmine filed her
section 388 petition. In June, the boys
began a transition to the home of experienced foster parents with an approved
adoptive home study. On July 5, the
court granted Jasmine's section 388 petition in part by allowing unsupervised
visits with the boys, monitored by the social worker from a distance of 300
yards. On July 11, the boys' transition
into the approved adoptive home was completed.
In August, the court denied the portion of Jasmine's section 388
petition seeking the boys return to her custody, and terminated parental


388 allows the juvenile court to modify an order if a party establishes, by a
preponderance of the evidence, that changed circumstances exist and the
proposed modification would promote the child's best interests. (In re
Zachary G
. (1999) 77 Cal.App.4th 799, 806.)
When a case is past the reunification phase, the focus is on the child's
need for permanency and stability, and there is a rebuttable presumption that
it is in the child's best interests to remain in the current placement. (In re
Stephanie M
. (1994) 7 Cal.4th 295, 317.)
We review the denial of a section 388 petition for an abuse of discretion. (In re
Jasmon O.
(1994) 8 Cal.4th 398, 415.)

As changed
circumstances, Jasmine's section 388 petition alleged she completed a
14-hour domestic violence awareness group in February 2012 and a six-month
substance abuse treatment program in March.
The petition alleged return to Jasmine's custody was in the boys' best
interests because she had become a suitable caregiver and there was a
parent-child bond. Psychologist Robert
Kelin, who conducted a bonding study in April, found "there could be
detriment to [the boys] if they were to lose contact with [Jasmine]."href="#_ftn3" name="_ftnref3" title="">[3]

Jasmine had a
history of child neglect. She had a
substance abuse history of many years, with periods of treatment and
relapse. She received a total of more
than two and one-half years of reunification services in this case and T.C.'s
case. When the court set the section
366.26 hearing in September 2011, it stated Jasmine "needs to have a long[-]term successful track record in
drug treatment[;] [s]he hasn't finished a parenting class [and] she needs
therapy." Nearly one year later,
Jasmine had attended seven therapy appointments. She had just completed a parenting class, but
the Agency had not seen a progress report.
Visits with the boys remained monitored, and had been closely supervised
until recently.

Jasmine did not
enter an after-care program following her completion of drug treatment, but
completed four steps of a 12-step program.
In June 2012, she resumed attending Alcoholics Anonymous and Narcotics
Anonymous meetings, and obtained a sponsor.
At the time of the hearing, she was on step 1 with the sponsor. Jasmine had previously achieved a period of
sobriety about equal in length to her latest period of sobriety. She planned to move to a sober living
facility, but was currently living with relatives who had histories of drug
abuse and child welfare referrals. The
home was inappropriate for the boys. The
court did not abuse its discretion by finding Jasmine had not met her burden of
showing changed circumstances.

The court did not
abuse its discretion by finding Jasmine had not met her burden of showing it
would be in the boys' best interests to be returned to her custody. Because this case was past the reunification
phase, the focus was on the boys' need for permanency and stability, and there
was a rebuttable presumption it was in their best interests to remain with
their foster parents, who wished to adopt them.
(In re Stephanie M., >supra, 7 Cal.4th at p. 317.) As noted above, Jasmine's home was
inappropriate for the boys. At the
hearing on the petition, Jasmine's counsel proposed that as an alternative to
the boys' return, the court continue the hearing to allow them to transition
into Jasmine's care. Counsel did not say
how long this might take. The boys were
suffering from uncertainty about their future, and needed stability, structure
and attention Jasmine was unable to provide.


a dependent child is adoptable,href="#_ftn4"
name="_ftnref4" title="">[4]
the court must terminate parental rights at the section 366.26 hearing unless
the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); >In re Helen W. (2007) 150 Cal.App.4th
71, 80-81.) One exception exists if
"[t]he parents have maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship." (§ 366.26,
subd. (c)(1)(B)(i).) A beneficial
relationship "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 re Autumn H. (1994) 27 Cal.App.4th
567, 575.) If terminating parental
rights "would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed, the preference for
adoption is overcome . . . ." (>Ibid.)
The existence of a beneficial relationship is determined by considering
"[t]he age of the child, the portion of the child's life spent in the
parent's custody, the 'positive' or 'negative' effect of interaction between
parent and child, and the child's particular needs . . . ." (Id.
at p. 576.) Examining the evidence most
favorably to the judgment (ibid.), we
conclude substantial evidence supports the court's finding "the benefits
of adoption outweigh the parental-child bond. . . ."href="#_ftn5" name="_ftnref5" title="">[5]

suffered from anxiety and depression.
Early in the case, he received a diagnosis of adjustment disorder with
mixed disturbances of emotions and conduct.
He began psychotherapy, and made marked improvement developmentally and
behaviorally. The idea of adoption
increased Marco's anxiety and confusion.
He said he enjoyed visits and wished to return to Jasmine's care.

also exhibited behavioral problems and was in href="">psychotherapy. During visits, he spent a great deal of time
seeking Jasmine's attention, an indication their bond might be insecure. Jesus's therapist reported his behavior had
improved, although the July 2012 change of placement had exacerbated his
difficulties. Jesus told his therapist
he did not want to be adopted.

the time of the section 366.26 hearing, Marco was nearly 10 years old and Jesus
was six years old. They had been out of
Jasmine's care for one year nine months, and before the inception of this case,
they were sometimes in the care of relatives.
When the boys were in Jasmine's care, she did not always supervise them
properly, and Marco assumed a parental role with Jesus and the siblings.

visits with the boys were supervised until the latter part of this case, and
even then they were monitored. She was
late to recent visits, and was more than one hour late to a visit in mid-July
2012, causing the boys great anxiety.
That month, Jesus reported Jasmine talked to him about coming home, confusing
him. At a visit in late July, Jasmine
expressed anger about the boys' participation in an adoption event and Marco
tried to comfort her.

social worker believed Jasmine and Marco shared a strong bond, but it was one
of sister and brother. During visits,
Marco asked Jasmine to manage Jesus's behavior, and if she did not accede, he
became upset. Kelin, who conducted the
bonding study, concluded Marco and Jasmine shared "between a moderate and
strong bond," but noted Marco assumed a parental role with Jasmine. Kelin assessed Jesus's bond with Jasmine as
"at least . . . moderate." The social worker described Jasmine's
relationship with Jesus as that of a mother and son. The social worker believed the boys would
suffer some detriment if they no longer had contact with Jasmine, but it did
not outweigh their need for stability.
The boys were adjusting to their adoptive placement and were
affectionate with their foster mother.
The foster parents were committed to understanding and meeting the boys'
needs. They helped reduce Marco's
parentified behavior, and provided the structure, love and patience the boys

relies on In re S.B. (2008) 164
Cal.App.4th 289, in which this court concluded the juvenile court erred by
declining to apply the beneficial relationship exception. (Id.
at p. 301.) That case is
distinguishable. There, the appellant
father visited consistently (id. at
pp. 293-294, 298, 300), "complied with 'every aspect' of his case
plan" (id. at p. 298),
empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (>id. at p. 298).


366.26, subdivision (c)(1)(B)(v), provides an exception to termination of
parental rights when termination would substantially interfere with the child's
sibling relationship and the severance of the relationship would be so
detrimental to the child to outweigh the benefits of adoption. (In re
(2002) 101 Cal.App.4th 942, 951-953; § 366.26, subd. (c)(1)(B)(v).)
The juvenile court must "balance the beneficial interest of the
child in maintaining the sibling relationship, which might leave the child in a
tenuous guardianship or foster home placement, against the sense of security
and belonging adoption and a new home would confer." (In re
, at p. 951, citing In re
Autumn H., supra,
27 Cal.App.4th at p. 575.) Factors to be considered include whether the
children were raised in the same home; whether they shared significant common
experiences or have existing close and strong bonds; and whether ongoing
contact is in the child's best interests, including his or her long-term
emotional interests, as compared to the benefits of adoption. (§ 366.26, subd.
(c)(1)(B)(v).) "[T]he application
of this exception will be rare, particularly when the proceedings concern young
children whose needs for a competent, caring and stable parent are
paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.) Examining the evidence most favorably to the
judgment, we conclude that substantial evidence supports the finding Jasmine
did not meet her burden of proving the exception. (In re
, at pp. 947, 952.)

boys and the siblings were very attached to one another. The boys had contact with T.C. during her dependency,
and lived with her after Jasmine reunified with her. The boys lived with J.D. until the detention
in this case. The boys always lived
together, and were in the same approved adoptive home. No placement was available for all of the
children together in San Diego County, but there were sibling visits during
this case. The boys' foster parents and
the siblings' caregivers were committed to ongoing contact between the boys and
the siblings.href="#_ftn6" name="_ftnref6"
title="">[6] Furthermore, the social worker believed the
boys needed the benefits of adoption more than they needed maintenance of the
sibling bond. Substantial evidence
supports the conclusion that even if termination of parental rights were to
substantially interfere with the sibling relationships, this would not be so detrimental
to the boys as to outweigh the benefits they would achieve through adoption.


judgment is affirmed.

Acting P. J.





name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.


name="_ftn2" title="">[2] Jasmine contends the sibling
relationship exception applied to the boys' relationship with each other, and
to the boys' relationship with their younger sister, T.C., and younger brother,
J.D. We refer to T.C. and J.D. together
as the siblings, and we refer to the boys, T.C. and J.D. collectively as the


name="_ftn3" title="">[3] The bonding study lasted one or one and
one-half hours.


name="_ftn4" title="">[4] Jasmine
does not contest the adoptability finding.


name="_ftn5" title="">[5] The court did not expressly address the
regularity of visitation and contact.
For the most part, Jasmine visited the boys regularly.
Early in the case, she missed three weeks of visitation, distressing the


name="_ftn6" title="">[6] The siblings' caregivers would have
taken Marco and Jesus into their home had it been large enough for four

Description Jasmine D. appeals the judgment terminating her parental rights to her sons, Marco M. and Jesus C. (together the boys). Jasmine contends the juvenile court abused its discretion by denying her modification petition (Welf. & Inst. Code, § 388)[1] and erred by declining to apply the beneficial relationship and sibling relationship exceptions (§ 366.26, subd. (c)(1)(B)(i) & (v)) to termination of parental rights.[2] We affirm.
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