In re D.A.







Filed 9/30/11 In re D.A. CA4/2





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re D.A., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.A. et al., Defendants and Appellants.	E053180 (Super.Ct.No. RIJ119352) OPINION

APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant J.A.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant L.A.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
D.A. (minor) (born June 2008) came to the attention of the Riverside County Department of Public Social Services (the department) on February 18, 2010, when paternal grandfather (grandfather) called the police; J.A. and L.A. (mother & father, respectively; collectively “parents” were involved in a verbal altercation in grandfather’s front yard when father punched mother in the face while she was carrying minor. Father attempted to punch mother again, but missed, hitting minor in the face instead, causing visible injuries. The juvenile court removed minor from parents’ custody and granted them six months of reunification services. The juvenile court eventually terminated reunification services and set the date for the selection and implementation hearing. On the date set for the selection and implementation hearing, mother filed a Welfare and Institutions Code section 388^[1] petition alleging an additional six months of reunification services would be in minor’s best interest due to a change in mother’s circumstances. On March 8, 2011, the juvenile court denied the petition and terminated parents’ parental rights. Parents appeal contending the court erred in denying mother’s section 388 petition, and in finding the beneficial parental relationship exception did not apply to bar termination of mother’s parental rights. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
After the incident on February 18, 2011, described ante, the department attempted to contact parents at grandfather’s residence; however, both parents fled the scene leaving minor with grandfather. Grandfather also left the residence with minor. The social worker spoke with a renter of grandfather’s who stated father, “was well known to be a drug user.” The renter said parents slept at the home several nights a week, frequently argued, and the police had been called out to the home on prior occasions due to the fighting. When the department eventually contacted grandfather that evening, he reported the earlier incident was one involving mutual combat. He reported parents lived with the maternal grandmother (grandmother), but spent the night in his home several nights a week when they had “problems” with grandmother. Grandfather reported calling the police on February 1, 2010, when mother attacked father. Grandfather stated father used marijuana. The department took temporary custody of minor and placed her in foster care.
Later that evening, the social worker received a call from mother. Mother reported she had been involved with father for two and one-half years, but they had broken-up two months previously; she now rarely saw him. Mother denied living with father or staying at grandfather’s home, averring instead that she lived with grandmother. Mother stated that although she and father argued often, their arguments had become physical on only three occasions: the instant incident; on February 1, 2010, when she was arrested for assaulting father; and sometime in January 2010. Mother initially denied any history of drug use, but admitted father had forced her to partake of marijuana one week earlier. Mother visited with minor the next day.
A check of parents’ records revealed father was on probation for burglary, and a warrant for his arrest had been issued in the current case for child endangerment. Mother had been the subject of a prior department intervention in which she had purportedly run away from home and used drugs. Mother had also been arrested for domestic violence committed against father on February 1, 2010. Despite mother’s contention father had attacked her, and that his injuries were old, the report reflected father had fresh injuries. The department filed a juvenile dependency petition on February 22, 2010, alleging minor had suffered and/or was at risk of suffering serious physical harm due to parents’ ongoing acts of domestic violence, drug abuse, and prior criminal histories. The detention report reflected that mother minimized her substance abuse issues and the prior instances of domestic violence.
On February 23, 2010, the juvenile court formally detained minor and issued a temporary restraining order (TRO) against father. The jurisdictional and dispositional report filed on March 22, 2010, reflected mother denied all the allegations against her, but acknowledged father smoked marijuana and remained at-large. Mother now reported she had been with father for four years. The social worker noted mother’s immaturity and lack of communication resulted in an inconsistency in attendance at scheduled visits with minor; mother frequently asked for changes after arrangements had been finalized. Mother did not believe she needed to participate in a domestic violence program. Indeed, according to the social worker mother continued to minimize any threat domestic violence posed to minor; mother stated the instant incident resulted in “‘just a little scratch. [Minor] wasn’t hurt bad. I don’t see why everyone is making such a big deal out of this. [Father] had just a little too much to drink. It was an accident. The police should never have been called.’”
Nevertheless, the social worker opined the prognosis for reunification with mother appeared auspicious; mother was focused on completing her high school education, desired to pursue a career in nursing, loved minor, had family support, and obtained a TRO against father. Mother had weekly visitation with minor, which was deemed “loving and appropriate”; the social worker opined visitation could be liberalized following the jurisdictional and dispositional hearing. Father’s whereabouts remained unknown. On March 25, 2007, the day originally scheduled for the jurisdictional and dispositional hearing, it was noted that father was in custody; the hearing was continued so the court could issue an order requiring father be transported to the hearing.
On March 29, 2010, the department filed an amended petition. Father made his first appearance. Parents submitted on the petition. The juvenile court sustained the petition; adjudged minor a dependent of the court; removed minor from parents’ custody; and offered reunification services in accordance with a case plan that required, among other things, that parents complete a certified domestic violence prevention plan, stay free from use of illegal drugs, and comply with all required drug tests.
The department’s status review report filed on September 15, 2010, reflected that mother remained unemployed and was now on probation for the incident of domestic violence that occurred on February 1, 2010. Father was serving a six-year prison sentence for child endangerment. Mother had begun individual counseling on April 15, 2010, but initially had difficulty maintaining regular attendance; however, her subsequent attendance had improved and become more consistent. Mother’s therapist reported mother had “not dealt in depth with the issues of the relationship with the father and her feelings.” Mother disclosed a past drug history to her therapist, which the social worker alleged mother had earlier denied. The therapist recommended continued participation in individual therapy.
The social worker had referred mother to a domestic violence program on March 1, 2010, but mother had failed to start. On July 6, 2010, the social worker spoke with mother; mother said she was unaware she was required to participate in a domestic violence program. The social worker gave mother another referral; mother reported that she attempted to sign up, but no openings were available until August 17, 2010. On September 8, 2010, the social worker again spoke with mother, who claimed she had not begun a domestic violence program because the program had canceled her intake appointment; mother failed to reschedule another intake appointment.
The social worker referred mother for random drug testing on July 6, 2010. This required that mother call-in on a daily basis and report for testing when her assigned “color” was randomly called. On July 19, 2010, mother reported to the test site as directed, but was turned away because she had no identification. The social worker met with mother on July 26, 2010, and created identification for her. On August 2, 2010, and September 3, 2010, mother was unable to test because the testing site did not have mother on its list; however, mother did not inform the social worker of any difficulties until September 8, 2010. The social worker subjected mother to saliva drug testing on July 6, 2010, and September 9, 2010; the results were both negative.
Mother had weekly visits scheduled with minor, but she missed a few visits.^[2] The foster mother reported that mother occupied a passive role during visitation, letting foster mother or grandmother take responsibility for minor during visits. Moreover, while the foster mother characterized mother’s visitation as consistent, she reported that mother appeared to be under the influence of drugs during some of the earlier visits. Nevertheless, the foster mother subsequently characterized mother’s interaction with minor during visitation as appropriate. The social worker concluded that mother had not completed services and “does not appear to have benefitted from the services that she did participate in.” Father had not completed his case plan due to his incarceration.
An addendum report filed on October 20, 2010, reflected that minor had been placed with her paternal great-aunt (aunt) for the first of several weekend visits on October 15, 2010, as a transition to permanent placement expected on November 4, 2010. Mother had completed her intake at a domestic violence program on October 4, 2010, which would consist of 12 group sessions and one individual session. Mother completed an on-demand drug test on September 29, 2010, but the results remained pending.^[3] Mother completed another saliva drug test on October 14, 2010, which was negative. Mother remained unemployed and had an unstable housing situation. Mother failed to show for a probation appointment on July 28, 2010, and as of September 15, 2010, was deemed out of compliance with the conditions of her probation by her probation officer. The foster mother reported mother cancelled a scheduled visit on September 28, 2010, allegedly due to work; however, the foster mother was informed by grandfather that mother went to a party instead. Foster mother continued to assert that mother did not pay full attention to minor when visiting.
On November 8, 2010, the juvenile court terminated parents’ reunification services and set the selection and implementation hearing for March 8, 2011. On February 18, 2011, mother filed a section 388 petition, on a JV-180 form, requesting an additional six months of reunification services. Mother reported she had continued to engage in individual therapy, had two jobs, had obtained a one-month lease on a place of her own, visited minor consistently, continued to work on her case plan, and had a strong bond with minor. The selection and implementation report issued that same day reflected mother was earning $200 monthly from babysitting, tutoring her relatives, and selling Avon products.^[4] Mother remained on probation, but her progress was deemed satisfactory. Mother completed her domestic violence program on January 21, 2011. She continued to have appropriate weekly supervised visitation with minor though one of the prospective adoptive parents reported mother did not like to “handle” minor when she acted up. Mother alleged she continued to participate in individual counseling, had attended additional parenting classes, and had started a substance abuse program; however, she failed to provide the department with any documentation of her participation in such programs. The social worker recommended the juvenile court terminate parents’ parental rights. The juvenile court ordered a hearing on mother’s section 388 petition on the same date scheduled for the selection and implementation hearing.
On March 8, 2011, the juvenile court held a hearing on mother’s section 388 petition. Mother’s counsel handed the juvenile court documentation that on February 10, 2011, mother had enrolled in a voluntary substance abuse treatment program.^[5] The juvenile court then noted that “detention was over a year ago, and this was a six-month case where mother was given an additional six months of services at the six-month hearing. It looks like she’s in the process of changing her life and her circumstances, but I cannot find based upon the evidence before the court that her circumstances have changed.” The juvenile court found no change in mother’s circumstances, and that reinstitution of reunification services would not be in minor’s best interest; thus, it denied mother’s section 388 petition. The juvenile court then terminated parents’ parental rights; it designated adoption as the preferred placement option.
DISCUSSION
A. SECTION 388 PETITION
Mother contends the court abused its discretion in denying her section 388 petition.^[6] Mother asserts the juvenile court’s erroneous statement that she received 12 months of services requires reversal because its ruling was based on a mistaken premise. Moreover, mother maintains the problem that lead to the dependency proceedings, father’s striking of mother and minor, had been eliminated due to father’s incarceration. Additionally, mother asserts she has a stronger bond with minor than the prospective adoptive parents. Finally, she argues her fulfillment of her case plan supported granting the petition. We hold the juvenile court acted within its discretion in denying mother’s petition.
“The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the child’s best interests. [Citations.] This is determined by the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. [Citation.] After termination of services, the focus shifts from the parent’s custodial interest to the child’s need for permanency and stability. [Citation.] ‘Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.’ [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686 (Amber M.).)
Section 388 can 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. (1997) 56 Cal.App.4th 519, 528.) “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 child’s need for prompt resolution of his custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, the best interests of the child are of paramount consideration when a petition for modification is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
First, the court’s mistaken statement that mother had received 12 months of reunification services does not appear to be a premise upon which the juvenile court based its denial of mother’s petition. Rather, it was the fact that mother had more than 12 months since detention to ameliorate the problems which led to minor’s removal. Nonetheless, contrary to mother’s contention, she had not done so. Although mother had finally completed a domestic violence program, mother had still failed to show she was able to stay free from drug use. Certainly, there were difficulties with regard to mother meeting all her testing requirements; nevertheless, mother had apparently been under the influence during several visits with minor. Mother’s last negative drug test occurred on October 14, 2010, nearly five months earlier.
Contrary to mother’s assertion, she had lied to the department regarding her past drug history; she only admitted to the social worker that she had smoked marijuana once, the week before the initiating incident, at father’s insistence. Mother apparently told her therapist she had a much longer-standing problem than the one time she had conceded to the department. Mother’s history with the department supported this history of drug use. The social worker early on had concluded mother minimized “her substance abuse issues[.]” Although mother had recently enrolled in a treatment program, no documented details of that program emerged below, including whether mother had or would be tested for drug use.^[7] Thus, mother failed to demonstrate her ability to stay free from drug use. Chronic substance abuse is generally considered a more serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 528, 531, fn. 9 [“It is the nature of addiction that one must be “clean” for a much longer period than 120 days to show real reform.”]; In re Amber M., supra, 103 Cal.App.4th at p. 686 [no abuse of discretion in denying section 388 petition where mother established only a 372-day period of abstinence.]; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [Fourth Dist., Div. Two] [three-month period of sobriety insufficient to show changed circumstances].)
Second, although father’s attack upon mother and minor was the instigating event, which led to the department’s involvement; mother’s own participation in incidents of domestic violence was a basis for the juvenile dependency petition. Indeed, mother had been arrested, and apparently convicted, for at least one act of domestic violence against father. Mother failed to appear for at least one of her probation appointments during the pendency of the proceedings below, for which she was deemed out of compliance with the conditions of that probation. The social worker also noticed mother’s minimization of the instances of domestic violence. Mother did not believe she needed to participate in a domestic violence program. She believed the initiating event was unremarkable and never should have been reported. Her completion of a domestic violence program more than two months after reunification services had been terminated reflects the low priority mother placed upon its relevance to her situation. Moreover, we cannot overlook the explosive primary and secondary negative effects, which the combination of drug abuse and domestic violence can have upon minors. Additionally, no documentation established whether the domestic violence program had been beneficial to mother; in other words, simply having completed the program did not mean mother had gained any useful insight into her domestic violence issues and how they affected minor. Indeed, mother’s therapist opined mother had little insight into the issues pertaining to her relationship with father. The social worker noted mother “does not appear to have benefitted from the services that she did participate in.”
Third and finally, nothing in this record establishes mother had a stronger bond with minor than the prospective adoptive parents. Indeed, at some point in the proceedings it was learned that grandfather had been the primary caregiver for minor, not mother. Although parents had been living with grandmother, but staying occasionally at grandfather’s residence, minor had been living for the most part with grandfather. Grandfather reported minor “has been living with him most of her life and he has taken care of her.” While mother’s weekly visits with minor had been deemed appropriate, mother often took a passive role, letting first the foster mother and grandmother, and then the prospective adoptive parents, take the primary role in caring for minor during visits. There is simply no evidence in this record mother was ever minor’s primary caregiver or that her bond with minor was as strong or stronger than the prospective adoptive parents. Indeed, the social worker continuously noted the “especially strong bond” between grandfather and minor, but never noted a similar bond between mother and minor. Mother’s purported ability to calm minor at the selection and implementation hearing is not a clear indication of an especially strong bond, particularly on this cold record. Finally, minor had been living with the prospective adoptive parents for nearly four months at the time of the selection and implementation hearing and had been noted to have “bonded well” with them. The juvenile court acted within its discretion in denying mother’s petition.
B. BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION
Mother contends insufficient evidence supports the juvenile court’s finding the beneficial parental relationship exception did not apply. We disagree.
Once reunification services have been terminated and a minor has been found adoptable, “adoption should be ordered unless exceptional circumstances exist . . . .” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Under section 366.26, subdivision (c)(1)(B)(i) one such exception exists where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parent has the burden of proving termination would be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.) “[I]t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., at p. 1350; see also In re Casey D., at p. 51.) “We determine whether there is substantial evidence to support the trial court’s ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.] If the court’s ruling is supported by substantial evidence, the reviewing court must affirm the court’s rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). [Citation.]” (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.)
It is important to note that parents bore the burden of proving detriment to minor should their parental rights be terminated. Here, as discussed above, the record is devoid of any proof that parents occupied primary caregiver status to minor for any of the 20 months of her life prior to the department’s intervention. Indeed, the social worker noted, “The parents . . . have not provided regular care for [minor]. [G]randfather . . . has been the primary caregiver for [minor] since she was born and this can be observed by the very close bond and special relationship that [minor] has displayed during . . . visits with [him].” Although mother visited with minor consistently, she never progressed beyond weekly supervised visitation. Mother missed a number of visits with minor. Mother took a passive role in caring for minor when she did visit, requiring the foster mother, grandmother, and prospective adoptive parents to take the lead. Mother appeared to be under the influence during several visits. Minor had been living with the prospective adoptive parents for nearly four months and had bonded well with them. Thus, substantial evidence supported the juvenile court’s determination that termination of parental rights would not be detrimental to minor.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


/s/ MILLER
J.

We concur:


/s/ RAMIREZ
P. J.


/s/ McKINSTER
J.


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