In re N.V.

Filed 6/18/08 In re N.V. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Thomas L. Bender, Judge.

David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant.

David P. Prentice, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.

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Delores V. appeals from orders terminating her parental rights (Welf. & Inst. Code,  366.26) to her young daughter and son.^[1] Appellant contends the court erred by denying her petition to regain custody at the permanency planning phase. She also joins in arguments made by the childrens fathers in their respective appeals, In re N.V. (F054277) and In re R.V. (F054279). The father in In re N.V. (F054277) challenged the denial of a petition he brought to regain custody of his daughter N.V. We concluded the court did not abuse its discretion because N.V.s father did not satisfy his burden of proof. The father in In re R.V. (F054279) claimed he was denied timely notice of the proceedings regarding his son R.V. We concluded the court failed to conduct a paternity inquiry of the mother but under the circumstances the error neither violated his due process rights nor was it prejudicial. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In April 2006 and 2007, appellant gave birth to drug-exposed infants. During both pregnancies, appellant also failed to seek prenatal care so as to place the infants at an increased substantial risk of suffering serious physical harm. Respondent Madera County Department of Social Services (department) in turn detained each newborn and initiated sequential dependency proceedings.

The Madera County Superior Court, in June 2006, adjudged N.V. and, a year later, adjudged R.V. juvenile dependents and removed each child from parental custody. In N.V.s case, the court ordered an array of reunification services for appellant. However, she dropped out of drug treatment after less than two months. She tested positive for methamphetamine as recently as the day before R.V. was born. It was not until May 2007, following R.V.s birth, that appellant began to take serious advantage of those court-ordered services.

Because appellant did not make significant progress toward alleviating the causes of N.V.s foster care placement, the court in June 2007 terminated reunification services in N.V.s case and denied appellant reunification services in R.V.s case. The court in turn set hearings to select and implement permanent plans ( 366.26) for each child.

Two months later in August 2007, appellant petitioned the court in each childs case to either return the children to her care with family maintenance services or reopen reunification services. She claimed to have been substance free since February 2007 and attached the negative results of an August 2007 hair follicle drug test. She also attached progress reports describing her exceptional attendance and participation in her substance abuse program since mid-May 2007 and her demonstrated commitment to remain substance abuse free. If she continued her perfect attendance, she would complete her program in late August or early September 2007. Reunification allegedly would be in the childrens best interests because, in appellants view, children had a right to be raised by their birth parents who had overcome their issues. Also, their knowledge of her as well as continuing the process of attachment and bonding would assist the childrens healthy development.

The court set appellants petitions for contested hearing which the court conducted in mid-October 2007. At the hearing, appellant testified on her own behalf. She started by describing her recent part-time employment. Two weeks earlier, she began cleaning houses for at least 25 hours a week. With financial help from each childs father, she also rented a two-bedroom apartment that she moved into the week before her testimony. She furnished the apartment with bedroom furniture for the children and had new clothes ready for them as well. Appellant believed she was ready to have her children placed with her because she claimed she had been sober and clean for close to nine months.

Appellant also brought to court a letter from her substance abuse program counselor stating she had completed the program in September 2007. The October 17, 2007 letter which the court received into evidence also summarized appellants drug history, treatment plan, participation and prognosis.

The counselor revealed in his letter that appellant had a lengthy history of methamphetamine abuse. Her prior behavior was consistent with severe methamphetamine addiction. She completed an intensive outpatient drug program which included group and individual counseling as well as Narcotics Anonymous (NA) meetings and parenting classes. In the counselors view, she exceeded attendance expectations in that she did not miss a single counseling appointment unlike many of the counselors clients. Appellant also attended far more than the minimum of twice-a-week NA meetings. She completed her parenting classes the day before the court hearing on her petition. According to her counselor, appellant had moved from a life filled with chaos to a life of purpose and stability in a relatively short period of time.

It was impossible for the counselor to predict her recovery prognosis given the factors associated with addiction. Nonetheless, he rated appellants prognosis as good because the steps she took dramatically improved her chances. According to the counselors letter, appellant had been willing to detach from those with whom she had associated in her addiction and had replaced that social circle with relationships she had developed through her recovery. He also saw her return to work as a positive step. Finally, the drug counselor ranked the risk posed by appellants addiction to her children as low.

On cross-examination, appellant testified she was continuing with one-on-one counseling as well as her NA meetings. In particular, she attended NA meetings seven days a week and had a sponsor.

No other evidence was introduced either in support or in opposition to appellants petition. Her attorney argued for an order returning custody, claiming appellant had established a significant change in circumstances. Further, she argued that the department failed to show that a change in the childrens placement would be detrimental to them. By contrast, the department argued it was appellants burden to not only prove a change of circumstances but also to establish a change would be in the childrens best interests. Not to discount appellants recent efforts, county counsel on the departments behalf also noted that despite her claim of sobriety since February 2007, appellant tested positive as recently as late April 2007.

The court took the matter under submission for a hearing in November 2007, when it would rule on appellants petitions and, depending on the outcome, conduct the childrens permanency planning hearing. On the continued hearing date, the court denied appellants petitions. The court acknowledged appellant was making progress but much of her effort was very recent and her history of substance abuse was long. Thus, in the courts view she had not completed the recovery process. The court also observed the children were young and currently placed in a safe environment.

Moving on to the issue of permanency planning, it was undisputed that the children were adoptable. The department placed the children together in June 2007 with a foster family committed to adopting the children. Although appellant and the childrens fathers opposed adoption, none of them presented any evidence that termination of parental rights would be detrimental to either child. Upon submission, the court found the children likely to be adopted and terminated parental rights.

DISCUSSION

Appellant contends the court abused its discretion by denying her modification petitions. According to appellant, she established the requisite changed circumstances. She further claims an order granting her relief would not have adversely affected her childrens need for permanence and stability. As she sees it, she deserved another opportunity to reunify with her children . . . [having] done everything humanly possible to beat her substance abuse problem and to establish a safe environment for [the children].

Any party may petition the court to modify or set aside a prior order on grounds of changed circumstance or new evidence. ( 388, subd. (a).) The petitioning party, however, must also show the proposed change is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (Id. at p. 318.) Having reviewed the record as summarized above, we conclude the court did not abuse its discretion by denying appellants section 388 petitions.

We agree appellant established a change of circumstances since June 2007, when the court terminated services in the case of N.V. and denied her services in the case of R.V. She successfully completed the elements of her substance abuse program and showed considerable progress in dealing with her addiction. However, the changes appellant had made were very recent in terms of coping with her recovery as well as a part-time job and her own apartment and relatively untested in light of her lengthy drug history and severe methamphetamine addiction. The court did not abuse its discretion with its concern about placing the children for the first time in her care under these changing circumstances.

We note in this regard appellant originally petitioned in the alternative for reunification services. However, at the hearing when asked what relief she sought, appellants counsel asked for family maintenance services, services afforded when the court authorizes a childs placement in the family home ( 16506). Thus, we do not criticize the court for not considering the possibility of alternative relief.

In any event, appellant failed to establish the second prong of the test for modification, that is, to show the proposed change was in the childrens best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Instead, she argued she was entitled to relief because there was no evidence that placement would be detrimental to the childrens interests. By so arguing, appellant improperly attempted to shift the evidentiary burden from herself to show best interests to the department to prove detriment.

It is the evidentiary burden of the party seeking a new and different court order to establish it would promote the childs best interests. ( 388, subd. (a); In re Stephanie M., supra, 7 Cal.4th at p. 317.) The standard the juvenile court must apply at a hearing for change of placement under section 388 does not require that it grant the change unless such a placement would be detrimental to the child. Rather, the court must decide whether the petitioning party carried the burden of showing that the proposed change of placement was in the childs best interests. (Stephanie M., supra, at p.325.)

Furthermore, given the timing of her modification petitions, it was incumbent on her to show the childrens need for permanency and stability would be advanced by an order returning custody to her. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Although appellant acknowledges the childrens legal interest in permanency and stability at the permanency phase, she assumes their interests still weighed in favor of family reunification. In her view, granting her another opportunity to reunify with her children would have given them the chance to grow up with their natural family and not adversely affected their need for permanence and stability. We disagree.

At the permanency planning stage, the focus shifts away from family reunification to the childrens needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id. at p. 302.) A court hearing on a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Simply put, appellant offered no evidence that the childrens need for permanency and stability would be advanced by changing their placement. By no means do we seek to minimize the mothers recent efforts to achieve sobriety or her fundamental interest in maintaining a parent-child bond. However, as previously noted, her changed circumstances were relatively new and essentially untested. Meanwhile, her children too had fundamental rights to protection from neglect as well as a stable and permanent placement. (In re Jasmon O. (1994) 8 Cal.4th 398, 419.)More time for appellant to prove herself did not necessarily equate with promoting her childrens interests. Accordingly, we conclude the court therefore properly exercised its discretion by denying appellants petition.

DISPOSITION

The orders terminating parental rights are affirmed.

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^* Before Cornell, Acting P.J., Gomes, J. and Kane, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.