In re C.H.
Filed 6/26/12 In re
C.H. CA3
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opinion has not been certified for publication or ordered published for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
(Sacramento)
----
In re C.H. et al., Persons
Coming Under the Juvenile Court Law.
C069096
(Super.
Ct. Nos.
JD230261,
JD230262)
SACRAMENTO COUNTY DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
J.O.,
Defendant and Appellant.
J.O., mother of
the minors, appeals from orders of the juvenile court denying her
terminating her parental rights. (Welf.
& Inst. Code, §§ 366.26, 388, 395.)
discretion in denying the petitions for modification and erred in failing to
apply the beneficial relationship exception to avoid termination of her
parental rights. We shall affirm.
FACTUAL BACKGROUND
The minors,
Ja.O., age five, and C.H., age two, were detained in October 2009 pending the
jurisdictional and dispositional hearings on petitions that alleged the minors
were at risk of physical harm due to parental substance abuse and domestic
violence. Although there were prior
referrals for abuse and neglect, the parents had not previously been subject to
the jurisdiction of the juvenile court.
The juvenile court sustained the petitions, adjudged the minors
dependents and returned them to the custody of the mother.
The parents
received 12 months of child welfare services, which included
programs, Dependency Drug Court, a domestic violence program, parenting
education and drug testing. The parents’
participation in services was marred by repeated relapses and failures to
complete programs.
In December
2010, the minors were detained on supplemental petitions (§ 387) that
alleged the mother failed to benefit from services and continued to abuse
drugs. The court reviewed the parents’
ongoing incidents of substance abuse and domestic violence, behavioral problems
of the older child, the quality of visitation, the length of services already
received, the parents’ failure to benefit from services and the minors’ needs
for permanence and stability and concluded there was not clear and convincing
evidence that reunification was in the minors’ best interests. The court denied further services for both
parents and set a selection and
implementation hearing.
The social
worker’s report filed in June 2011 for the section 366.26 hearing recommended a
permanent plan of long-term foster care.
The minors were placed with the paternal grandmother who was committed
to C.H. but there was a question about her commitment to Ja.O. Thus, while the minors were generally
adoptable, the social worker wanted the minors placed in long-term foster care
with a reassessment for a guardianship placement in six months.
Shortly
thereafter, the minors were removed from the paternal grandmother’s home at her
request, because she felt she could no longer care for them, and they were
placed in a potential adoptive home.
In August 2011,
mother filed petitions for modification (§ 388) seeking an order for
return of the minors under a family maintenance program or an order for family
reunification services. She alleged, as
changed circumstances, that she had completed a residential treatment program,
was living in transitional housing, had returned to work and was in an
outpatient program. She further alleged
the proposed change was in the minors’ best interests because they were bonded
to her.
The social
worker filed an addendum in response to mother’s petitions detailing mother’s
extensive substance abuse history and failure to maintain sobriety for any
significant period of time, which culminated in multiple relapses in January
and February of 2011. During that time,
mother used heroin, methamphetamine, alcohol and THC. Throughout the dependency, mother had
multiple safety plans and was referred to many programs that she did not
complete. The addendum noted that mother
was currently clean and living in a recovery home but questioned her ability to
maintain sobriety in an independent setting.
The addendum concluded the minors needed permanence and there was a
prospective adoptive placement for them.
At the hearing
in August 2011, the juvenile court first considered evidence on the petitions
for modification. A counselor from
mother’s residential treatment program,
Cornerstone, testified mother completed the program and was successful
there. The counselor believed mother
could maintain sobriety because she continued in treatment programs after she
left Cornerstone. The counselor was not
aware of the extent of mother’s relapses prior to entering the residential
treatment program.
The house
manager of mother’s transitional living residence testified mother had been in
residence about four months, had been clean and sober and was doing more
meetings than required. Mother could
stay up to two years in the transitional living facility.
Mother’s
supervisor at work testified she first met mother in February 2011. Mother relapsed, then returned to work in May
2011. Mother was extremely dependable
and there were no current concerns about her employment. Although mother did discuss the dependency
case with her, mother did not say that she had used heroin, methamphetamine,
marijuana and alcohol in January and February of 2011.
The visit
supervisor testified the minors were excited to see mother at every visit. At the end of the visits they were ready to
go and mother was appropriate in handling the end of visits. Generally, the minors fell asleep on the way
home after visits.
The father
testified that he opposed mother’s petitions for modification as it was not in
the minors’ best interests.
The court
extensively reviewed the history of the case and mother’s periods of success
and relapses in 2010 and 2011. The court
noted that, although mother was sober at the time of the hearing, she had used
multiple substances at the beginning of the year. She had been offered residential treatment
before and refused it. The court found
it hard to accept the prediction of the Cornerstone counselor, given the
relatively short time mother was there and in the transitional living
program. The court recognized that
mother’s ultimate success in sobriety would take time and said that the issue
was whether the minors should have to wait for her to demonstrate long-term
sobriety. The court concluded that it
was not fair to the minors, who had a right to live in a safe, permanent
environment, to leave them in an uncertain placement hoping that mother would
succeed. Given the long history of
substance abuse and multiple relapses of increasing seriousness, the court
concluded there was not a preponderance of evidence to support a finding of
changed circumstances or that it was in the minors’ best interests to grant the
petitions for modification.
The court took
evidence on the section 366.26 hearing issues, and agreed to consider the
earlier testimony of the visit supervisor.
Mother testified about her visits with the minors and that she felt
bonded to them. She acknowledged she had
relapses, but testified there had been quality time in between and that the
minors told her they wanted to come back to her.
The court found
the minors were generally adoptable.
Further, there was no evidence of trauma from being separated from their
parents. The court stated it could not
find that the evidence of the bond the minors had with mother outweighed their
needs for a stable home and terminated parental rights.
DISCUSSION
I. Section 388
Petitions
Mother argues
the court abused its discretion in denying her petitions for modification.
A parent may
bring a petition for modification of any order of the juvenile court pursuant
to section 388 based on new evidence or a showing of changed circumstances.
the burden of establishing that the change is justified. [Citation.]
The standard of proof is a preponderance
of the evidence.” (In re
Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is
committed to the sound discretion of the juvenile court and, absent a showing
of a clear abuse of discretion, the decision of the juvenile court must be
upheld. (In re Stephanie M.
(1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th
1057, 1067.) The best interests of the
child are of paramount consideration when the petition is brought after
termination of reunification services. (In
re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child,
the juvenile court looks not to the parent’s interests in reunification but to
the needs of the child for permanence and
stability. (Ibid.; In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
The court
reviewed mother’s lengthy history of substance abuse and concluded that
circumstances had not changed despite her recent and relatively brief period of
stability. Further, ordering more
services for her was not in the minors’ best interests because they had a right
to permanence and a safe home. Mother,
who had a long history of substance abuse, had not shown she was able to
maintain sobriety outside a structured setting.
Due to the nature of achieving sobriety and mother’s past history of
multiple relapses of increasing seriousness, the evidence did not show that
mother, with additional services, could provide a stable, safe home for the
minors in a reasonable period of time.
There was no abuse of discretion in denying mother’s petitions for
modification.
II. Beneficial
Relationship Exception
Mother contends
the juvenile court erred in failing to apply the beneficial relationship
exception to avoid termination of parental rights.
At the selection
and implementation hearing held pursuant to section 366.26, a juvenile court
must choose one of the several “‘possible alternative permanent plans for a
minor child. . . .
Legislature is adoption.
[Citation.]’ [Citation.] If the court finds the child is adoptable, it
must terminate parental rights absent
circumstances under which it would be detrimental to the child.” (In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances that
permit the court to find a “compelling reason for determining that termination
[of parental rights] would be detrimental to the child . . . .” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the
burden of establishing the existence of any circumstances that constitute an
exception to termination of parental rights.
(In re Melvin A. (2000)
82 Cal.App.4th 1243, 1252; In re
Cristella C. (1992) 6 Cal.App.4th 1363, 1373; Cal. Rules of
Court, rule 5.725(e)(3); Evid. Code, § 500.)
One of the
circumstances in which termination of parental rights would be detrimental to
the minor is: “The 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).)
The benefit to the child must promote “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
other words, the court balances the strength and quality of the natural
parent/child relationship in a tenuous placement against the security and the
sense of belonging a new family would confer.
If severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that the child would
be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.” (
27 Cal.App.4th, 567, 575.) Even
frequent and loving contact is not sufficient to establish this benefit absent
a significant, positive emotional attachment between parent and child. (In re
Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419;
904, 924.)
Although mother
regularly visited the minors and there was a bond between them as shown by
their excitement at seeing her, the minors were ready to go home at the end of
visits and showed no trauma at being separated from mother. Accordingly, the evidence established that
the strength and quality of the bond did not outweigh the benefit to the minors
of permanence and stability offered by an adoptive home. The juvenile court did not err in finding the
exception to the preference for adoption did not apply.
DISPOSITION
The orders of
the juvenile court are affirmed.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
NICHOLSON , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] We grant mother’s request for judicial notice
of our prior appellate opinion and file in a related appeal,
2011, C067683), review denied and opinion ordered nonpublished
September 14, 2011, S194892. (Evid.
Code, §§ 452, 459.)
