In re A.L.

Filed 8/14/06 In re A.L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Peter Riddle, Judge. (Retired judge of the San Diego Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Amber C., the mother of A.L., appeals the judgment terminating her parental rights under Welfare and Institutions Code^[1] section 366.26. Amber contends the juvenile court erred by denying her section 388 petition seeking the return of A. to her custody and by failing to apply the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In late April 2004, Amber gave birth to A. Amber tested positive for marijuana and PCP. She admitted she had smoked marijuana and PCP a few days before A. was born even though her doctor had warned her of the negative effects of these drugs on her unborn child during a prenatal appointment two months earlier when Amber tested positive for the two drugs.

On May 3, 2004, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of A. under section 300, subdivision (b), alleging A. was at substantial risk of harm because of Amber's substance abuse during the pregnancy. The court ordered A. be detained in out-of-home care. The court also ordered Amber to undergo an evaluation by the Substance Abuse Recovery Management System (SARMS).

Between May 27 and June 10, Amber had four positive tests for PCP.

On June 18, Amber submitted to the petition, and the juvenile court made a true finding. The court ordered her to participate in SARMS.

On July 20, the court declared A. a dependent child and ordered her placed in a licensed foster home. The court ordered Amber to comply with her case plan, which included SARMS drug testing, 12-step meetings, parenting classes and individual therapy, if appropriate. The court granted Amber liberal supervised visitation and gave Agency discretion to lift the supervision and expand the visits if A.'s counsel agreed.

During the first six months of reunification services, Amber complied with her case plan. She was employed, completed a parenting class and was going to a therapist. Amber also completed substance abuse treatment at the CRASH program, and was participating in CRASH aftercare treatment. She was given eight hours of unsupervised visitation with A. a week, and Agency recommended overnight visits as well. Amber told the social worker she had made changes in her life and said, "'Having my baby taken away from me was a big wake-up call. I realized I had to choose one way or the other . . . . Either I was going to keep using and lose my baby, or I had to get it together and do the right thing. I really don't want to lose my baby.'"

On December 29, the court authorized overnight visits for Amber and A., and gave Agency discretion to start a 60-day trial visit.

On February 10, 2005, the court ordered overnight visits between Amber and A. twice a week. However, Amber had tested positive for PCP a week earlier, apparently unbeknownst to the court. As a result of the positive test, Amber was cited for contempt and her visits with A. were changed back to supervised. At first, Amber denied using the drug, maintaining the positive test resulted from her spilling PCP on her skin. A week later, she admitted to the social worker that she had lied about not using PCP.

Although she was participating in weekday aftercare at CRASH and continuing to participate in therapy, Amber was inconsistent in visiting A. Amber's therapist reported the relapse was another "wake-up call" for Amber with respect to her commitment to sobriety and reunification with A.

On June 29, the court authorized unsupervised visits between Amber and A. The court also granted Agency discretion to begin overnight visits and a 60-day trial visit with the concurrence of A.'s counsel.

On July 7, Amber had a random test at the CRASH program and tested positive for alcohol. Initially, she had lied to the CRASH counselor and said she had taken Nyquil cold medicine. Later, she admitted drinking alcohol. On July 13, Amber was arrested for robbery, battery and petty theft. Her aunt, with whom she had been living, refused to allow her to continue living there.

At the contested 12-month review hearing on August 25, the court terminated reunification services for Amber and set a section 366.26 hearing.

Agency assessed A. as likely to be adopted based on her young age, good health, and the fact that relatives were interested in adopting her, including her great-aunt. A. was placed in an adoptive placement with her great-aunt on January 3, 2006, and was adjusting well.

On January 26, Amber filed a section 388 petition, requesting A. be placed with her. As changes in circumstance, Amber alleged she had enrolled in the KIVA residential drug treatment program, which allows women to have their children live with them, was taking another parenting class and was testing negative for drug and alcohol use. Amber also alleged placing A. with her was in the child's best interests because she visited with A. every week, and that A. enjoyed the visits and had not yet bonded to her new caregiver. The court granted a hearing on Amber's petition.

Amber had enrolled in KIVA on October 27, 2005, and had begun working on a 12-step program. She was given random drug tests and all of the results were negative. Amber had consistently visited A. since the previous September. During those visits, Amber and A. interacted with each other and showed mutual affection. Amber played with A., changed her diapers, and provided her with snacks. Amber was positive and appropriate. A. appeared to enjoy the visits and called Amber "mommy."

Nonetheless, the social worker opined that Amber and A. did not share a parent-child relationship because A. only appeared to enjoy the visits sometimes and did not initiate affection with Amber. A. "engages others who are present at visits almost as much as she engages [Amber]," the social worker reported. The social worker noted that Amber was not providing for A.'s daily needs. A. indiscriminately used "mommy" to address people.

In a bonding study requested by Amber, psychologist Raymond Murphy opined that Amber and A. shared a subsidiary rather than primary bond.

On February 21 and March 6, the court held a contested hearing on Amber's section 388 petition and the permanent plan for A.

Angela Nelson, a KIVA counselor, testified that Amber had enrolled in the program on October 27, 2005. Amber was participating in parenting, addiction relapse prevention, and 12-step groups. She had completed the first of five phases at KIVA and was working on the second phase. Nelson opined that Amber had made substantial progress in addressing her drug problem because she had acknowledged the problem, recognized her triggers and was working on the 12 steps.

Amber testified she had used drugs for almost five years. She acknowledged A. was removed from her custody because she used drugs during her pregnancy. Since then, she participated in SARMS, a month-long outpatient drug program at Healthy Beginnings, a 90-day inpatient drug program at CRASH, aftercare through CRASH, individual therapy, a parenting class and child visitation. Amber admitted to four relapses and lying about her most recent relapse. She believed her relapses occurred because she did not use the tools she had acquired in the previous programs and stopped going to meetings and sharing. In her four months at KIVA, Amber learned recovery was a slow process and she needed to surround herself with other recovering individuals and stay committed to her recovery. She said her triggers were her former friends, the places she used to frequent and certain behaviors, such as going to clubs. Before entering KIVA, Amber was in denial about being an addict, but now she was able to accept that she was one. Although she could not say she would never relapse, Amber believed that KIVA was giving her the tools to remain clean. When she completed the KIVA program, she planned to go to a sober living home, return to school, get a job, and stay connected to a 12-step program.

Amber was visiting A. once a week for two hours. A. ran to Amber at the beginning of visits and hugged her. A. called Amber "mommy." During visits, Amber played and talked with A. and gave her snacks. Sometimes, A. was upset at the end of visits.

Rita Panayeva, who monitored the weekly two-hour visits between Amber and A., characterized the visits as "boring" for the most part. Panayeva testified Amber did not come to the visits prepared and did not provide structured activities for A. The monitor said the two most recent visits were better because Amber was more active and A. was happy. Panayeva opined that Amber needed more parenting classes. A. also called the social worker and a babysitter "mommy." Panayeva had not observed A. becoming upset when the visit was over.

Social worker Ann Gwyn opined that Amber's enrollment in KIVA was not a change of circumstance. Gwyn testified Amber had participated in drug treatment programs three times previously and relapsed six times. Although Amber twice claimed she experienced a "wake-up call," she continued to abuse drugs.

Gwyn believed it would be detrimental to return A. to Amber's care. A.'s young age and total dependence on her caregiver presented risk factors, and Amber had not shown she could live independently and remain drug free.

The social worker opined that Amber and A. did not have a parent-child relationship; they were more like playmates during visits. Gwyn noted that Amber had never provided for A. on a daily basis, and A. did not look to Amber as a parent. Gwyn also pointed out that Amber had been inconsistent in visiting A.; when Amber was not using drugs, she visited regularly, but when she relapsed, Amber would either arrive late to visits or not show up.

Among other documentary evidence admitted at the hearing was Murphy's bonding study.

The court denied Amber's section 388 petition. The court found that Amber's participation in KIVA was not a change in circumstance because she previously had been in drug treatment programs. The court also found that A. deserved permanency.

The court found, by clear and convincing evidence, that A. was likely to be adopted and adoption was in her best interest. The court also found that none of the statutory exceptions to adoption applied. Regarding the beneficial parent-child relationship exception, the court found Amber had established consistent visitation, but had failed to show that A. would benefit from continuing her relationship with Amber. The court terminated parental rights.

DISCUSSION

I. The Juvenile Court Did Not Err by Denying Amber's Section 388 Petition

Amber contends the juvenile court abused its discretion when it denied her section 388 petition. The contention is without merit.

Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition shall set forth why the requested modification is in the best interests of the dependent child. (§ 388, subd. (b).)

The parent bears the burden of showing, by a preponderance of the evidence, that a change of circumstances exists and the proposed change is in the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court may consider the entire factual and procedural history of the case in considering a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

Rulings on section 388 motions are reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) An order on a section 388 motion will not be disturbed on appeal unless the court has exceeded the bounds of reason by making an

"'. . . "arbitrary, capricious, or patently absurd determination . . . . "'" (Ibid.)

Amber alleged as changed circumstances her enrollment in the KIVA drug program, negative drug testing and participation in another parenting class. Although these developments were positive, they did not constitute changed circumstances within the meaning of section 388. At most, these developments showed "changing circumstances" regarding Amber's ability to remain drug free and to parent a child. (In re Casey D., supra, 70 Cal.App.4th at p. 47 [mother's short drug recovery period and failure to complete prior treatment programs showed only changing circumstances and the court did not abuse its discretion in denying her § 388 petition]; see also In re Baby Boy L. (1994) 24 Cal.App.4th 596 [mother with long history of drug abuse only showed she was beginning to rehabilitate, not changed circumstances].) Amber's four months of sobriety after almost two years of dependency jurisdiction showed only changing circumstances, not changed circumstances. Amber's long-standing substance abuse problem had not been eliminated; the evidence showed only that Amber was making yet another attempt to treat it. Amber's successes at KIVA during the previous four months were commendable, but her four-month stint in the program did not establish a change of circumstances--particularly in light of her history of relapses. Changing circumstances concerning a parent's substance abuse problem are not a sufficient showing to grant a section 388 petition. (See In re Casey D., supra, 70 Cal.App.4th at p. 47.) On this record, we cannot say the juvenile court abused its discretion in finding Amber had not established changed circumstances as required by the statute.

Furthermore, to prevail, Amber had to show that granting her petition would be in A.'s best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) This is more difficult to accomplish when the changing circumstances come after reunification services have been terminated and the child's need for a permanent, stable home is paramount. At this point, the balancing of the parent's rights versus the child's rights shifts, and the child's interest in a stable, permanent home outweighs the parent's interest in reunification. (See In re Jasmon O. (1994) 8 Cal.4th 398, 420.) As this court has observed:

"A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.]" (In re Casey D., supra, 70 Cal.App.4th at p. 47.)

A. was in a stable loving home with her great-aunt, who wished to adopt her. Although this placement had occurred only six weeks before the contested section 388 hearing, A. had adjusted well to living with her great-aunt. Contrary to Amber's assertion that A. had not had time to bond with her new caregiver, the record shows that over the past year the great-aunt had regularly visited A., been A.'s part-time caregiver, and taken the child on court-approved trips to see other relatives. The court acted well within its discretion in finding Amber failed to show it would be in A.'s best interests to place the child with her.

Amber relies on In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 and its three-part test for analyzing the "best interests" requirement of a section 388 petition:

"(1) the seriousness of the problem which led to the dependency and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated and the degree to which it actually has been."

The reliance is misplaced because Amber cannot prevail on any of the three factors set forth in In re Kimberly F.

First, the original problem in this case, Amber's substance abuse, was indisputably a serious problem. Amber used PCP and marijuana during her pregnancy despite her doctor's warning not to do so because of the high risk to unborn A. After A.'s birth, Amber enjoyed periods of sobriety of varying lengths, but she repeatedly relapsed.

Second, the evidence showed that the bond between A. and the great-aunt was at least as strong as that between A. and Amber. According to Murphy's bonding study, Amber and A. had a subsidiary bond, not a primary bond. A. had never looked to Amber as her primary support system; A., who was removed from Amber's custody at birth, had never lived with Amber. Starting in January 2005, the great-aunt had consistent and on-going contact with A., had been A.'s part-time caregiver, and had taken the child on court-approved overnight trips.

Third, Amber had not shown that she had ameliorated the problems that led to the dependency and removal of A. Although Amber had made progress with her substance abuse problem while at KIVA, the juvenile court could reasonably conclude that it was insufficient to show she could provide A. with the stability and permanency that the great-aunt could offer. Amber's four months of sobriety at KIVA did not demonstrate that she would not relapse again when she was no longer in a structured environment.

Amber's reliance on In re Michael D. (1996) 51 Cal.App.4th 1074 is also misplaced. With respect to changed circumstances, the mother in that case had remained drug free for two years, was engaged to marry a man with a career in the Navy, and had stable housing. (Id. at p. 1080.) In re Michael D. is also distinguishable regarding the best interests prong of section 388. The mother in that case, through visitation, had built such a strong, nurturing parental role with her five-and-one-half-year-old son that he was terrified at the prospect of separation from her. The child repeatedly and spontaneously said he wanted to live with his mother. When, at the close of a hearing, the child's caregiver requested he spend the evening with her, he became distraught. The child burst into tears and said he wanted to stay with his mother. (Id. at pp. 1087-1088.) The record here does not contain any similar compelling evidence of a parental bond that should not be severed.

In sum, the juvenile court did not abuse it discretion by finding the proposed change was not in A.'s best interest and by denying Amber's section 388 petition.

II. The Court Properly Found None of the Statutory Exceptions to Adoption Applied

Amber contends the juvenile court erred by not finding that the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) applied. The contention is without merit.

Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts favorably to the prevailing party, and drawing all legitimate inferences to uphold the lower court's ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception applies. (§ 366.26, subd. (c)(1).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)

The beneficial parent-child relationship exception is codified in section 366.26, subdivision (c)(1)(A), which provides that after the court finds the child is likely to be adopted the court shall not terminate parental rights if it finds termination would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The exception applies only if both prongs are met.

The juvenile court found Amber had regular contact with A. Substantial evidence supported that finding. At issue, therefore, is whether Amber had a beneficial parent-child relationship with A. within the meaning of section 366.26, subdivision (c)(1)(A).

To establish such a relationship, the parent must show more than frequent and loving contact, an emotional bond with the child, pleasant visits, or incidental benefit to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial parent-child relationship exception to adoption, a parent must show the "relationship 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." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) The court's balancing test must be performed on a case-by-case basis, taking into account variables such as "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child and the child's particular needs . . . . " (Id. at pp. 575-576.)

Further, the parent must show the benefit arises from a parental rather than caretaker or friendly visitor relationship. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) We affirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist." (In re Casey D., supra, 70 Cal.App.4th at p. 51, italics added.)

Substantial evidence supported the court's finding that the parent-child beneficial relationship exception to adoption did not apply. Although Amber and A. had a positive relationship, it was not a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). Amber did not play a parental role in A.'s life and never had. The foster parents first and the great-aunt more recently assumed the parental role for A. by providing her with a safe, stable and nurturing home.

The quality of the visits showed Amber and A. were merely playmates who enjoyed each other's company. Amber was a friendly visitor, who at times appeared not to know how to engage A. in reciprocal play and how to respond as a parent when A. misbehaved. When the visits ended, A. did not get upset, according to the visitation monitor. Although A. called Amber "mommy," A. addressed several other people as "mommy" as well.

Further, Amber did not meet her burden of showing the benefits of continuing her relationship with A. outweighed the well-being A. would gain in a permanent adoptive home. The record does not contain any evidence that A. would experience emotional damage if parental rights were terminated. Moreover, A., who was in out-of-home care her entire life, needed a sense of permanency. When the pleasure A. gained from visits with Amber is balanced against having stability and a sense of belonging in her life, it is clear that the benefits of adoption outweighed continuing her relationship with Amber, whose substance abuse history made it questionable that she would ever be able to protect and safely parent A. Further, the benefits that a permanent adoptive home outweighed any detriment A. might suffer if Amber's parental rights were terminated. In balancing "the strength and quality of the natural parent/child relationship in a tenuous placement against the security and sense of belonging a new [adoptive] family would confer," the juvenile court could reasonably conclude termination of Amber's relationship with A. would not be detrimental to A. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)^[2]

Amber's reliance on In re Amber M. (2002) 103 Cal.App.4th 681 and In re Brandon C. (1999) 71 Cal.App.4th 1530 is unavailing.

In re Amber, supra, 103 Cal.App.4th at pages 689-690, in which a psychologist who conducted a bonding study opined the mother and child shared a primary attachment and primary maternal relationship that would make termination of parental rights detrimental, is distinguishable. Additionally, the child's therapist and the court-appointed special advocate believed the relationship should continue because the mother and child shared a strong bond. (Ibid.) Amber did not present bonding study evidence that she and A. shared a primary attachment or expert evidence that severing her relationship with A. would be detrimental to the child.

The case of In re Brandon C., supra, 71 Cal.App.4th 1530 is unhelpful to Amber because it was in a different posture than this case. In that case, the juvenile court found the beneficial relationship exception did apply, and the Court of Appeal declined to reweigh the evidence, holding there was substantial evidence to support the finding. (Id. at pp. 1537-1538.) Here, the juvenile court found the beneficial relationship did not apply. We, too, decline to reweigh the evidence and hold substantial evidence supports the court's finding that the exception to adoption under section 366.26, subdivision (c)(1)(A) did not apply.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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

^[2] We note that because the prospective adoptive parent was the maternal aunt, A.'s ties with her biological family would remain.