In re D.G.

Filed 5/22/08 In re D.G. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from orders of the Superior Court of Los Angeles County. S. Patricia Spear, Judge. Affirmed.

Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Angela Williams, Deputy County Counsel, for Plaintiff and Respondent.

_____

Mary K. (Mother) appeals from an October 16, 2007 order denying her a hearing on her petition for modification (Welf. & Inst. Code,  388) and terminating her parental rights to her son, D.G. (Alex), born in August 2004. We affirm because the juvenile court did not abuse its discretion in denying her petition without a hearing and substantial evidence supports the courts rejection of the beneficial relationship exception to termination of parental rights (Welf. & Inst. Code, former  366.26, subd. (c)(1)(A), now subd. (c)(1)(B)).^[1]

BACKGROUND

Mother and Joseph G. (Father), who have a history of domestic violence and drug abuse, were homeless in early 2005. After Alex was four months old, Mother failed to keep up his immunizations. The Los Angeles County Department of Children and Family Services (DCFS) detained Alex in November 2005 when he and Mother were living in the back house on property owned by the paternal uncle. Mothers home was unsafe, unsanitary, and contained drug paraphernalia. The day after Alex was detained, Mother tested positive for methamphetamine; a few weeks later, she tested positive for prescription drugs. Alex was placed in foster care and then was placed with the maternal grandmother for about six months. In July 2006, Alex was placed with family friends who are also his prospective adoptive parents.

In January 2006, the juvenile court sustained a petition, finding that Alex was a dependent pursuant to section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect), based on the parents history of domestic violence, resulting on one occasion in Fathers arrest for his violent conduct; the parents history of drug abuse and frequent use of cocaine; Mothers possession of drug paraphernalia within access of Alex; Mothers maintenance of an unsafe and unsanitary home; and Mothers failure to provide Alex with appropriate immunizations. Alex was removed from parental custody. The parents were afforded monitored visits and reunification services. Mother was ordered to attend a drug rehabilitation program with random weekly testing, NA/AA aftercare, individual counseling, domestic violence counseling, and parenting.

Although Mother began her drug treatment program in December 2005 with good attendance, by May 2006 she had relapsed. Mother tested positive for methamphetamine on four occasions in May and June 2006, during which time she did not regularly visit Alex. In June 2006, Mother entered a 90-day residential drug treatment program and also completed 12 weeks of domestic violence counseling. According to the foster mother, Father spoke to Alex by telephone during Mothers visits. The social worker admonished Mother that Father was not permitted to have unmonitored contact with Alex and if he wanted contact with Alex, Father first was to contact DCFS. Mother agreed to comply. Father had not had any visits with Alex, had not contacted DCFS, and appeared in juvenile court for the first time in July 2006.

In September 2006, Fathers reunification services were terminated. Mother was working full time and had monitored visits with Alex twice a week. The juvenile court found that Mother was in partial compliance with the case plan. Although Mother was arrested for petty theft of food from a market and spent 40 days in jail in October and November 2006, Mother completed her parenting program and was found to be in full compliance with her case plan. In December 2006, Mother was afforded unmonitored four-hour visits twice a week. In January 2007, Mother moved into a sober living home and continued to test negative. Her unmonitored visits increased to eight hours per week and then to 12 hours per week. In March 2007, Mother began weekend overnight visits with Alex at her sober living home.

In April 2007, the foster mother reported that Alex returned from visits with Mother talking about Father, which he had never done before. Alex also would exhibit defiant conduct and have frequent tantrums upon his return from unmonitored visits. The foster mother saw Alex with Mother and Father on April 30, 2007, and took a picture of them with her cell phone. Alex identified the man as Daddy. When the social worker questioned Mother about contact with Father, Mother said that the man was a male friend and that Mother had not had contact with Father since September 2006. Mothers visitation was changed to monitored visits once a week, and Alexs behavior became more stable upon a return to monitored visits. Alex enjoyed visiting Mother and would cry when Mother left at the end of her visits, but he would calm down once he was in the car to return home with the caregiver. Mother began more intensive therapy and told DCFS in June 2007 that she realized that her on-going contact with Father was another addiction that she needed to resolve.

In June 2007, the juvenile court found Mother to be only in partial compliance with the case plan, terminated Mothers reunification services, and set a section 366.26 hearing for October 2007. Mothers monitored visits were restricted to every other week. In July 2007, DCFS reported that the prospective adoptive parents home study was approved.

According to the section 366.26 report, Mothers visits and interactions with Alex were appropriate. Alex also had frequent visits with the maternal grandmother and his older half siblings. The foster parents were very motivated to adopt Alex, and they were very bonded to the child as he is to them.

On October 16, 2007, Mother filed a section 388 petition, seeking placement of Alex in her home, a sober living home. Attached to the petition was a letter from her program supervisor at the sober living home, stating that Mother continued to reside in the home and was eligible to reside in the home until August 2008; a condition of residency was that Mother submit to random weekly drug testing; Mother tested negative from January to October 2007; Mother was enrolled in parenting classes, had nearly completed domestic violence classes, and was in compliance with all of the program rules. Mother was also working full time. Mothers program supervisor wrote that Mother has demonstrated that she is willing to go to any lengths in order to be a responsible parent. She has acknowledged the mistakes she has made in the past and is using them as an opportunity for further growth.

Mothers petition stated that the requested change would be better for Alex because she has maintained consistent visitation with my son. I engage in positive activities such [as] educational games and toys. He recognizes me as his mother and shows affection for me. His bond with me is strong and it would be detrimental to him if my parental rights are terminated.

At the October 16, 2007 hearing, the juvenile court stated that the [section] 388 petition does not indicate a change of circumstance, it shows a changing circumstance, and Mother is still working on some of the issues that brought the child before the court, so the 388 petition is denied, and the court will move forward on the trial of the [section 366.26]. The juvenile court found that Alex was adoptable. Mothers attorney argued, Its her position . . . that shes maintained very consistent visitation with her child, she engages in positive activity with her child, that she has acted as a parent on behalf of her child. She asserts that the child recognizes her as his mother and that it would be detrimental to the child to terminate her parental rights. [] With regards to the change in circumstances, . . . Mothers stated position is that she had previously completed a domestic violence class and that this is the second class in order to empower her strongly.

Alexs attorney argued in favor of termination of parental rights and also against Mothers section 388 petition, stating, I dont think that theres any way that it could be interpreted that the 388 shows that home of parent mother would be in this childs best interest. Shes still in transitional housing. She has not demonstrated full compliance with the case plan. [] The mother had been doing extremely well, and she was having unmonitored contact with the child. And she basically broke the trust of both this court and the department and the child by allowing him to have unfettered contact with his father, a father who had done absolutely nothing with respect to the case plan . . . , and then lied about this to both the social worker and the court. And it wasnt until undisputed photographic evidence was provided that the mother finally fessed up and admitted that, yes, this had been going on. And this was after she had completed her first domestic violence [program]. So while . . . she went through the motions and did the programs, she obviously did not make sufficient progress. And I just dont see how she can say that this is in the childs best interest. [] . . . [] . . . Its time for this child to have permanence. Hes been with this [prospective adoptive] family for over a year . . . . They are completely committed to this child.

After arguments of all attorneys, the juvenile court remarked, I realize that Mother is making progress. But as I said in denying the 388, its a work in progress. She still needs to deal with her relationship with dad and the fact that its been violent and that its not in the childs best interest. In rejecting the beneficial relationship exception to termination of parental rights, the juvenile court stated, The test is whether the character and quality of the relationship with the mother is so strong and so helpful for the child and it actually outweighs the benefits of the child being adopted by this family, and in this case I cant say that. [] She is having good quality visits, but theyre monitored. The child has really blossomed since hes been in this caretakers home. And court certainly cannot find that Mothers relationship is of the character and quality thats envisioned by the case law such that it would defeat the termination of her parental rights. Parental rights were terminated. Mother appeals from the October 16, 2007 orders denying her section 388 petition and terminating parental rights.

DISCUSSION

A.Denial of Section 388 Petition for Modification

We review the summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460 (Angel B.); see also In re Josiah S. (2002) 102 Cal.App.4th 403, 419.) A parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing on the petition. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).) Cases have interpreted section 388 to require both a prima facie showing of a change of circumstances and that the proposed change of order is in the best interest of the child. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) Although the petition should be liberally construed in favor of its sufficiency (ibid.), conclusory allegations are not sufficient (Anthony W., supra, 87 Cal.App.4th at p. 250). After the termination of reunification services, the focus shifts from reunification to the need of the child for permanency and stability. (Angel B., supra, 97 Cal.App.4th at p. 464.) Cases have held that simple completion of educational programs, including drug counseling, does not, in itself, show prima facie that either the requested modification or a hearing would be in the minors best interest. (Id. at pp. 464465.)

Mother argues that the juvenile court abused its discretion in finding no changed circumstances because it was undisputed that she had tested negative for drugs in the past 16 months, was in compliance with all of her programs, and but for [her contact with Father, she] would have regained custody of Alex instead of having her parental rights terminated. Even if we assume that Mother made a prima facie showing of changed circumstances, we conclude that the petition did not make a prima facie showing that a change of order would be in Alexs best interest. In her opening brief, Mother argues that placement of Alex in her home was in his best interest because [t]he undisputed evidence was that Alex was bonded to [Mother] and knew her as his mother. No such bond was shown to exist between Alex and his caregivers. She also contends that the evidence did not establish that Alex was at serious risk from brief contact with his father with [Mother] present. Furthermore, the court and DCFS could have closely monitored Alex in [Mothers] care and worked with the sober living home to ensure his safety.

We disagree with Mothers claim that there was no evidence of a bond between Alex and his caregivers. Substantial evidence shows that Alex and his caregivers were bonded to each other and that the caregivers were providing Alex with a stable, secure, and loving home. By October 2007, Alex had lived an equal amount of time (about 15 months) with his Mother and with his foster family. But the focus of the proceeding in October 2007 was not reunification; it was Alexs need for permanency and stability. The petition showed that Mother had temporary housing at the sober living home, but the petition was silent as to whether Mother would have appropriate housing for Alex after leaving the sober living home in August 2008. The juvenile court did not abuse its discretion in determining that the petition, liberally construed, did not show that a change of placement to Mothers home would promote Alexs interest in permanency and stability.

Even now, Mother fails to show how an evidentiary hearing on the petition would have established that a change in placement would promote Alexs need for permanency and stability; her arguments focus on her progress in resolving the issues that led to Alexs removal. Mother asserts in her opening brief that, had she been granted an evidentiary hearing, she could have called her domestic violence counselor as well as her individual therapist to testify about whether in their opinions she had truly learned from her error and was capable of protecting Alex. Such testimony could have changed the courts mind, especially given that [Mothers] progress had otherwise been stellar. If [her] ability to protect Alex from [Father] were no longer a concern, there is no question that it would have been in Alexs best interests to be with his mother. The foregoing proposed evidence goes to the issue of Mothers progress with her programs, but not to the issue of whether a change in placement would promote Alexs need for stability and permanence. For all of the foregoing reasons, we conclude that the juvenile court did not abuse its discretion in summarily denying Mothers section 388 petition.

B. Beneficial Relationship Exception to Termination of Parental Rights

Section 366.26, subdivision (c)(1)(A) affords an exception to termination of parental rights 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)(A).) A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of a beneficial relationship is determined by considering [t]he age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) We review the juvenile courts order under the traditional substantial evidence standard. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)

Assuming that Mother maintained regular contact and visitation, we conclude that substantial evidence supports the juvenile courts finding that Alexs well-being would be promoted more by adoption than by the continuation of the parent-child relationship in a more tenuous placement. Many of Mothers arguments on this point are premised on the claim that there was no evidence to indicate that Alexs primary bond was with his caregivers rather than with [her]. We disagree with her characterization of the evidence pertaining to the relationship between Alex and his caretakers. The section 366.26 report is replete with statements describing the loving and nurturing relationship between Alex and the caretakers. The juvenile court reasonably could have inferred that Alexs primary bond was with his caretakers because they were very bonded with Alex and Alex had been living in their home for about the same period of time that he had lived with Mother. And, as noted above, there was no indication that upon her departure from the sober living home, Mother would have appropriate housing for Alex. The juvenile court reasonably concluded that Alexs well-being would be promoted more by adoption.

DISPOSITION

The orders of October 16, 2007, are affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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^[1]Unspecified statutory references are to the Welfare and Institutions Code. Because former section 366.26 governed the juvenile courts decision and governs this appeal, references to section 366.26 shall mean former section 366.26.