In re M.S.
Filed 3/5/12 In re
M.S. CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Butte)
----
In re M. S., a Person Coming
Under the Juvenile Court Law.
BUTTE COUNTY DEPARTMENT OF
EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
S. S.,
Defendant and Appellant.
C067966
(Super.
Ct. No. J35055)
S. S. (mother)
appeals from the juvenile court’s denial of her petition to modify an existing
order and the subsequent termination of her
§§ 366.26, 388.) We shall affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Butte
County Department of Employment and Social Services (the department) filed
a section 300 petition as to the infant minor, M. S. alleging: The minor was detained at birth after testing
positive for methamphetamine. The minor,
born five weeks premature, required hospitalization in the special care unit
for 13 days. Mother tested positive for
marijuana and methamphetamine. Mother
said she had used drugs for 16 years, primarily marijuana, and had used
methamphetamine “‘one time’” one or two days before the minor’s birth. While the minor was in the special care unit,
mother failed to provide appropriate care for the minor’s special needs and was
reluctant to perform parenting duties; on one occasion, mother was very fidgety
and difficult to awaken when she needed to feed the minor. The minor’s paternity had not been
determined. The alleged father, R. B.,
was homeless and unemployed and had a recent history of criminal convictions
related to substance abuse.
name="_ftnref2" title="">[2]
The detention
report stated that R. B. claimed Native American ancestry and that notice under
the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)) would be sent to
the Estom Yumeka Maidu Tribe at Enterprise Rancheria in Oroville,
California.
The tribe responded that the minor, though not eligible for enrollment,
was a member “by tradition and cultural belief systems.”
The juvenile court
sustained the allegations of the section 300 petition.
The disposition
report recommended foster care for the minor and reunification services for
mother, who admitted her substance abuse problem and had begun to participate
in services to address it. Mother, now
35 years old, had used alcohol and drugs, including “pot and crank,” since she
was 16. She knew she had done wrong, but
considered herself a good mother; she had two sons, a 17 year old who lived
with her and an 11 year old who lived with his father.
At the
dispositional hearing, the juvenile court made the recommended findings and
orders.
The Estom Yumeka
Maidu Tribe designated an approved Indian foster home for the minor. The juvenile court ordered the minor placed
there.
At an interim
hearing, the juvenile court found ICWA applicable.
The department’s
six-month status review report recommended terminating mother’s services and
setting a section 366.26 hearing. Mother
had refused to enter a residential drug treatment program and had a poor
attendance record in outpatient programs.
She had had three positive methamphetamine tests, failed to show up for
testing on six other dates, and turned in two diluted samples for testing. Her visitation had been suspended and was now
conditional on negative drug testing.
Although she had completed a parent support group, she had not regularly
attended parenting classes. She believed
she had done everything needed to get the minor returned to her.
A state adoptions
bureau status report indicated that the bureau would follow ICWA’s placement
preferences. The minor was placed in a
tribal home, and the foster parents were willing to consider adoption.
At the contested
six-month review hearing, the juvenile court terminated mother’s services and
set a section 366.26 hearing.
An adoptions
assessment recommended the termination of parental rights and adoption. According to the assessment, there would be
no detriment to the minor from terminating parental rights or from any possible
interference with the minor’s relationship with her half siblings.
The minor had been
in her present foster home for over seven months, was thriving there, and had
bonded to the foster family. The
caretakers wanted to adopt, and a preliminary assessment indicated that they
were a suitable adoptive family; however, if they could not be approved for
adoption, there were other potential adoptive families known to the tribal
representative.
The foster mother
was 62 years old; the foster father was 57.
They had been married for 13 years.
They had five other children in informal placements or foster care,
ranging from 15 years old to two years old.
The foster father was unemployed and had an elementary school education;
he was arrested for an “immigration issue” several years ago, but an amnesty
program had resolved that problem, he reported “no additional criminal
history,” and the incident appeared to have been “an isolated occurrence.” The foster mother, who also had an elementary
education, was employed by Enterprise Rancheria and worked from home. The foster parents had demonstrated good
parenting practices with the other children in their home and could meet the
minor’s needs.
Shortly after the
adoptions assessment was submitted, mother filed a section 388 petition,
requesting the reinstatement of services or the placement of the minor in her
custody. Mother alleged that she was now
in a residential substance abuse treatment program and had been clean and sober
for “an extended period.”
The juvenile court
set the section 388 petition for hearing together with the section 366.26
proceeding.
The section 366.26
report recommended termination of parental rights and adoption. The minor was still thriving in the
prospective adoptive home. The tribe
supported the department’s plan, and the Indian expert did not object to
it. Mother had visited only twice in the
last four months. The prospective
adoptive parents were open to postadoption contacts with the minor’s birth
family, including mother.
The report of
Indian expert Angelina Arroyo recommended keeping the minor in her current
placement until a permanent placement plan had been determined. The minor was thriving and happy there, and
was clearly attached to the foster father.
Mother reported to
Arroyo that she had been in rehabilitation for 77 days and felt she was doing
well; she had moved to another county to start a better life. She had had a good three-hour visit with the
minor around a month ago. She had good
support from the maternal grandmother (who saw the minor every other week) and other
family members.
The foster family
reported to Arroyo that although the minor had a weak immune system, mother had
returned the minor from a visit without socks and the minor afterward became
ill. When mother was allowed to stay at
the foster home to visit the minor, mother did not respond to the minor’s
needs, but let the foster mother do it instead.
It was Arroyo’s
opinion that continued custody of the minor by the biological parent was likely
to result in serious emotional or physical harm to the minor.
A letter from the
“Family Program Facilitator” at Door To Hope, mother’s treatment program,
stated: Mother had been in residence for
just over two months and was now entering the last phase of treatment. Women who did “the initial [r]ecovery work”
for four to six months, then moved to a transitional facility with their
children, then stayed in a “clean and sober [c]ommunity” for another 18 months,
normally did very well.
In an addendum to
her report, Arroyo found that active efforts had been made to provide remedial
services and rehabilitation to prevent the breakup of the Indian family, those
efforts were unsuccessful, and that as a result there was proof beyond a
reasonable doubt that continued custody of the minor by the parent was likely
to result in serious emotional or physical damage to the minor.
of parental rights.
At the contested
section 388/section 366.26 hearing, state adoptions social worker Sydne Murua
testified that she believed the foster father was a legal resident, but not a
United States citizen. If he were to be
arrested or deported, Murua would assume that could affect the stability of the
prospective adoptive home. However,
Murua had no reason to doubt the foster mother’s statement that the foster
father completed an amnesty program and was no longer considered illegal.
he had no criminal history.
Murua believed the
foster parents had not obtained specialized training in the health issues of
children who tested positive for drugs at birth. Despite that fact, Murua considered their
home a suitable adoptive placement. The
minor had been assessed for developmental issues, and it was determined that
she did not have any at this point.
Mother’s
18-year-old son, St. S., testified that until mother went into rehabilitation,
he and she often visited the minor together.
Whenever mother saw the minor, mother got very excited and picked her up
as soon as she could. St. S. saw mother
hold the minor, change her, and feed her.
When he and mother visited, the minor looked to mother for care.
Since mother went
into rehabilitation, according to St. S., she seemed to be “a lot calmer” and
paid attention to more things than usual.
He had no concern that she would return to substance abuse.
mother’s care and it was important for the minor to be raised by her biological
family. He admitted that he had no
reason to think he would not still be able to see the minor if she were adopted.
Arroyo testified
that the minor was not a member of Enterprise Rancheria and was not eligible
for membership because enrollment was closed, but was nevertheless treated as
an Indian child due to her heritage.
Arroyo restated her opinion that active efforts had been made to provide
remedial services and rehabilitative programs to prevent the breakup of the
Indian family, those efforts had been unsuccessful in rehabilitating mother,
there was proof beyond a reasonable doubt that continued custody of the minor
by the mother at this time would likely result in serious emotional or physical
damage to the minor, and that mother was not in a position to be reunified with
the minor. A representative of
Enterprise Rancheria had told Arroyo that the tribe agreed with the
department’s recommendation.
Craig Busse, who
supervised visits with the minor by mother and her family members, testified
that mother’s interaction with the minor was appropriate; mother held the
minor, fed her, and changed her. Busse
did not observe any difference between the minor’s reaction to mother and the
minor’s reaction to other people in the room.
Mother had had
three two-hour visits in the months just prior to the hearing. Nothing that happened during those visits
gave Busse any concern about the minor’s safety with mother or mother’s
sobriety. Her actions and demeanor had
improved since she went into rehabilitation:
she seemed clearer, more focused, and more attentive.
Mother testified
that she was living in Salinas, California.
After completing Door To Hope’s outpatient program, she had just
graduated from its residential rehabilitation program; she was now in the
aftercare program, which would last a year.
The programs had numerous components, including relapse prevention. Mother had developed a “safety plan” during
her relapse prevention program. She knew
how to identify and deal with situations that might tempt her to relapse.
Methamphetamine
was mother’s drug of choice; starting at 19, she used it “[o]ff and on” for
about 17 years, resuming after a six-year period of sobriety. She last used it on May 5, 2010.
date. Her random drug tests in Door To
Hope were always negative. She had a
“huge support system,” was heavily involved with Alcoholics Anonymous and
Narcotics Anonymous, and had a sponsor.
She attended Narcotics Anonymous meetings three times a week. She believed her work on changing herself
would be a lifelong process.
When the minor was
born, mother did not have the capacity to be a good parent. Now, however, she believed that she had that
capacity because no one could love the minor as much as she did and she had
learned a lot in residential rehabilitation.
Her recent visits with the minor had gone “wonderful[ly].”
If mother regained
custody of the minor, she would go immediately into a six-month rehabilitation
program called Nueva Esperanza for children and their parents; appropriate
lodging for the minor would be available.
After that, she could stay for 18 months in a “clean and sober”
community called Pueblo on the Monterey Peninsula.
Mother planned to
go back to school to be a substance abuse counselor; she had a job lined up at
Door To Hope if she followed through with her remaining programs. She intended to stay in Monterey County as
part of her safety plan.
After hearing
argument, the juvenile court ruled: As
to section 388, mother had shown a change in circumstance, but had not shown
that placement of the minor with her or further reunification services would be
in the minor’s best interest. Therefore,
the section 388 petition was denied.
As to section
366.26, the court found by clear and convincing evidence that the minor was
adoptable, and mother had not proved that any exception to adoption
applied. Therefore, the court terminated
mother’s parental rights and ordered adoption as the minor’s permanent
plan.
DISCUSSION
Mother contends the juvenile court
erred by failing to grant her section 388 petition.
A petition to
modify a juvenile court order under section 388 must allege facts showing
new evidence or changed circumstances, and that changing the order will serve
the minor’s best interests. (
666, 671-672.) The petitioner has the
burden of proof on both points by a preponderance of the evidence. (Cal. Rules of Court, rule
5.570(h)(1)(D).) In assessing the
petition, the court may consider the entire history of the case. (In re
Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
To decide whether
mother met her burden, the juvenile court had to consider such factors as the
seriousness of the problem that led to the dependency, and the reason for the
problem’s continuation; the degree to which the problem may be and has been
removed or ameliorated; and the strength of the relative bonds between the
dependent child and the child’s parents and caretakers. This list is not exhaustive. (In re
B.D. (2008) 159 Cal.App.4th 1218, 1229; In
re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
When a parent
brings a section 388 petition after the termination of
interests of the child are of paramount importance. (In re
Stephanie M. (1994) 7 Cal.4th 295, 316-317.) Therefore, the juvenile court looks not to
the parent’s interest in reunification but to the child’s need for permanence
and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Where a section
388 petition has been denied after an evidentiary hearing, we review for abuse
of discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 866.) We reverse only if the ruling exceeded the
scope of the court’s discretion, or if under all the evidence (including
reasonable inferences from the evidence), viewed most favorably to the ruling,
no reasonable judge could have made that ruling. (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Where the evidence conflicts, we reverse only
if the evidence compels a finding for the appellant as a matter of law. (In re
I.W. (2009) 180 Cal.App.4th 1517, 1527-1529.)
Mother has never
had physical custody of the minor, who
was was detained at birth. Still an
infant, the minor has thrived for more than half her life in the care of the
foster parents who want to adopt her and to whom she looks to meet her
needs. Mother’s visits went well, but
there was no showing that the minor responded differently to her than to anyone
else in the room with her. Mother’s
rehabilitation from a drug habit that lasted for 17 years, which by her own
account included a relapse after six years of sobriety, is still far from
complete or certain. (Cf.
415, 423 [seven months of drug rehabilitation did not outweigh long history of
addiction and relapses].) Under these
circumstances, reopening services for mother, thus indefinitely deferring the
goals of permanence and stability for the minor, would not have been in the
minor’s best interest. (Cf.
Mother asserts
that the prospective adoptive home is unsatisfactory in comparison to what she
could offer the minor. Mother cites her
alleged rehabilitation and the alleged need to preserve and protect her
parental rights. Assuming that this
contention is properly raised under section 388 (see In re Kimberly F., supra,
56 Cal.App.4th at p. 530 [best interests standard under § 388 “cannot be a
simplistic comparison between the natural parent’s and the caretakers’
households”]), it is unpersuasive.
As we have noted,
the permanence of mother’s rehabilitation is as yet unknown, and her interest
in preserving her parental rights no longer controls once reunification
services have terminated. Rather, the
needs of the child for permanence and stability control. (In re
Stephanie M., supra, 7 Cal.4th at
p. 317.) Thus, the factors mother
counts in her favor weigh little.
Whether the
current foster family can adopt the minor, or whether a preferable adoptive
family might exist, is irrelevant to the minor’s best interests under section
388.
expert were of the opinion that the foster family could meet the minor’s needs,
and no evidence cited by mother shows otherwise.
The denial of
mother’s section 388 petition was not an abuse of discretion.
DISPOSITION
The orders denying mother’s section 388
petition and terminating her parental rights are affirmed.
ROBIE , J.
We concur:
HULL , Acting P. J.
HOCH , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Welfare and Institutions Code.
R. B. requested paternity testing,
which confirmed his biological fatherhood.
However, he then relinquished his parental rights.
