In re Anthony A.

Filed 10/19/06 In re Anthony A. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Traci A. (mother) appeals from the orders (1) denying her petition under section 388 of the Welfare and Institutions Code^[1] and (2) terminating her parental rights following a hearing under section 366.26. We affirm.

I. FACTUAL BACKGROUND

A. The Petition

In January 2004, while mother was in the county jail, the Sonoma County Human Services Department (Department) filed a petition under section 300, alleging, among other matters, that mother and the minor’s father had an extensive history of substance abuse and domestic violence that rendered mother unable to provide protection and regular care to Anthony.^[2]

Anthony was declared a dependent of the court and reunification services were ordered for both parents. Meanwhile, Anthony had been placed in temporary foster care. The plan for mother called for visitation; following the recommendations for counseling; completing a substance abuse evaluation and complying with treatment recommendations; submitting to random drug and alcohol testing; resolving all pending criminal matters; completing a domestic violence program; attending 90 twelve-step meetings in 90 days; completing parenting classes; and cooperating with the social worker.

B. Six-month Review

The six-month review eventually was held on December 8, 2004. The status review report recommended continuation of family reunification services for mother, but termination of the same for father. At that time Anthony was living with his maternal aunt and uncle and their two young children. Anthony was demanding, and the foster parents were not able to provide all the time and attention he wanted. They received some parenting assistance. Anthony was developing well and in good health.

Mother lived with her own mother and worked for her father. She was continuing her education and actively engaged in the case plan. Mother visited on Thursdays in her sister’s home, helping to bathe and feed Anthony. She took him on weekends from Friday evening through Sunday, returning him well fed, clean and happy. She was appropriate with Anthony and able to meet his needs.

Mother regularly attended counseling and used the sessions well. She completed a substance abuse evaluation and was attending classes and NA/AA meetings. Mother submitted to several random drug tests; all were clean except one which was positive for marijuana. As well, mother was enrolled in an anger management/domestic violence group, completed parenting classes and workshops, and was attending a weekly parenting class/play group with Anthony. She demonstrated good parenting skills. Finally, mother resolved pending criminal matters and cooperated with the social worker.

The social worker stated that in addition to following the case plan, appellant needed to show “she is actively involved in creating a new lifestyle that supports her positive growth. She needs to form new relationships with other recovering people who understand the difficulties she faces, instead of continuing to socialize with people with whom she used drugs.” Further, appellant needed to become more responsible for herself and depend on herself rather than her parents. The social worker did not recommend returning Anthony to his mother at that time because she was in the early phase of recovery from substance abuse and of dealing with the seriousness of violence in her relationships.

In September 2004, the Department filed an addendum report recommending that family reunification services be terminated and that Anthony be placed for adoption. Only “professionally supervised“ visits were recommended. This new assessment was based on the fact that appellant tested positive for methamphetamine after submitting to a random urinalysis. She denied a relapse. Two subsequent drug tests were clean. The social worker did not think mother was taking the necessary steps to truly change her life in a timely fashion, nor had she demonstrated that she considered Anthony’s needs above her own.

Mother was not present at the six-month review hearing because she was in a residential treatment program that did not release participants to attend court proceedings. Despite mother’s enrollment in the in-patient program, the social worker would not change the recommendation to terminate services because mother was “very, very early in her recovery and very early in even admitting to herself that she has a problem and confronting the issue.” The worker harbored a “suspicion that maybe things weren’t being taken to heart” and she was not “making changes in her actual life.” The court found that Anthony’s return would create a substantial risk of detriment, reasonable services had been offered, and mother had made minimal progress. The court set a section 366.26 hearing. Mother petitioned for extraordinary writ on grounds that the Department failed to provide reasonable services regarding domestic violence, and erred in finding there was not a substantial probability of return to mother within the next six months. We denied the petition on the merits. (Traci A. v. Superior Court (Feb. 15, 2005, A108782) [nonpub. opn.].)

C. Maternal Grandmother’s Section 388 Petition

In March 2005, the maternal grandmother filed a section 388 petition seeking placement of Anthony with her, and requesting a relative placement evaluation of her home. The grandmother indicated that Anthony’s aunt no longer was interested in adopting him. The grandmother initially wanted to be Anthony’s guardian so mother would have a chance to regain custody. The social worker told the grandmother she was in denial about her daughter. The grandmother started counseling to get a better perspective on codependency issues.

The State Adoptions Services Bureau (Bureau) conducted an adoption assessment. The assessment revealed that the grandmother did not support Anthony’s placement with the maternal aunt and put tremendous pressure on her, thereby scuttling that adoptive placement. The adoption worker believed the grandmother was in denial about mother’s past and present drug use and was unable to support Anthony’s best interests. The Bureau concluded that the grandmother’s request for adoptive placement should be denied; the Department concurred, and the court ruled accordingly.

D. Mother’s Section 388 Petition

Mother filed her own section 388 petition in April 2005. She alleged that she had completed the in-patient substance abuse program and was well into recovery. She had submitted to 20 urine tests, which were all negative. As well, mother was attending domestic violence and anger management groups; a relapse prevention group; a women’s group and counseling session; 12-step meetings and church. She was living in a transitional housing program, and visited Anthony regularly and consistently.

The juvenile court found that mother had made a prima facie showing entitling her to a contested section 388 hearing. At the time of the hearing, there were 14 days remaining until the maximum reunification point allowed by law. Mother requested a trial home visit and in-home dependency, which would stop the 18-month clock.

Dr. Silverstein testified that he conducted a psychological evaluation of mother on April 23, 2005. Her attorney at the time wanted an opinion on the prognosis for mother reunifying if she were offered another six months of services. Dr. Silverstein stated that mother “seemed mild to moderately depressed. The depression and some anxiety--also I think I noticed was in my opinion probably what’s called an adjustment disorder, . . . an acceptable response to environmental stressors that she was experiencing, namely, the custody dispute.” He felt this was a “fairly typical response to this kind of stress.” There were dependency issues in her personality makeup that required a long process to “deal with.” She was starting individual psychotherapy, thus making use of services she needed in order to progress. Her substance abuse issues were being addressed through a variety of activities.

As to his prognosis for relapse, Dr. Silverstein stated that the longer someone remains in treatment, the more confident he becomes that they are likely to remain clean and sober. He gave mother a “guarded prognosis” in April, about 50/50. At the time of trial, with two more months of remaining stable, he would call her prognosis “guarded and improving.” If mother were in a transitional housing program with Anthony and with full-time supervision, his assessment in terms of Anthony’s safety would be high. If mother were in an apartment, with the social worker showing up every week and with mother submitting to urine tests from time to time, the risks would probably be unacceptable.

With respect to completing the residential program, Dr. Silverstein indicated that mother completed the program but was not given graduation privileges because of a cigarette incident. Mother told him that she and a friend found a pack of cigarettes in a park. She smoked some cigarettes and discovered that there was a marijuana cigarette in the pack. She said she did not smoke the marijuana and tested negative for cannabis. Smoking cigarettes was not allowed on the program premises.

Mother, age 32 at the time of trial, testified that she had been sober for 246 days. She related her substantial drug history, as well as the programs and classes she had engaged in to address her problems. Mother stated that she made the decision to enter and stay in the women’s recovery program to make changes for herself. After that she enrolled in an aftercare program, participated in a 16-week women’s group, an eight-week relapse group and individual counseling, and had signed up for a sober parenting group. Additionally, she was involved in a domestic violence support group and attended 12-step meetings.

Once mother finished the residential program, she was allowed two visits a month. Anthony calls her “Mama.” At the time of trial, mother lived in a transitional housing program that allowed children to reside with their mother. She moved to that program in hopes that the court would allow Anthony to live there with her. Mother worked 30 hours a week as a billing administrator for a company owned by her father. She had a valid driver’s license and had arranged for in-home day care for Anthony. Additionally, Anthony was on a kinder-care waiting list. Her goal was to get a community college certificate in small business management and own her own business one day.

Mother wrote a letter to the court in September 2004 denying drug use and claiming that a positive drug test was a false positive. She explained this was an isolated incident, she was ashamed, and after taking a hard look at her life decided to go into residential treatment.

Mother’s friend and former roommate at the residential treatment program, Kathryn Creech, testified that appellant was “very interactive” with Anthony when he visited. She would come early to AA/NA meetings, set up the coffee, and stayed late as suggested. She “jumped right into recovery” and “hangs out with clean people.”

Kathy Gere, mother’s therapist since March 2005, said mother was “really working hard on developing her . . . interpersonal skills so that she doesn’t need to be using substances. . . . [S]he’s made [a] tremendous amount of progress. . . . [I]f she continues making the progress that she’s currently making, that her chances of staying clean and sober are very great.” Mother has started looking at her future and making solid plans, on her own. Mother would be able to parent as long as she has a strong support system. And, she has already set that up by going into a program where she will continue to receive support. If she stays on the same path, appellant has an “excellent chance of staying clean and sober . . . .”

The juvenile court denied mother’s petition. The court found that mother had shown a change of circumstances by being clean and sober for 265 days, after 17 or 18 years of addictive behavior. However, because her reformation was not complete--indeed, mother was still in early recovery--and the time for reunification had run out, the court concluded it would not be in Anthony’s best interest to grant the motion.

E. Section 366.26 Hearing

The section 366.26 hearing was held the same day.

The adoptions worker testified that Anthony was adoptable. He was healthy, had no developmental delays or special needs, had shown he could attach to others, and was only 22 months old. He was currently in a “fost/adopt” home, and the social worker indicated she had other approved home studies if the current placement did not materialize.

The court terminated parental rights upon finding Anthony adoptable and that termination of parental rights would not be detrimental to him. This appeal followed.

II. DISCUSSION

A. The Juvenile Court Did Not Abuse Its Discretion In Denying Mother’s Section 388 Petition

Section 388 provides that a parent “may, upon grounds of change of circumstance . . . , petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” (Id., subd. (a).) The court shall hold a hearing “[i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . .” (Id., subd. (c).)

Section 388 operates as an “ ‘escape mechanism’ “ in circumstances where a parent completes a reformation in the short, final period after termination of reunification services but before the termination of parental rights. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) In order to revive the reunification issue, the parent has the burden of showing changed circumstances that make a change of placement in the minor’s best interest under section 388. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67, 72.) The determination of a section 388 petition is committed to the sound discretion of the juvenile court. We will not disturb that ruling unless an abuse of that discretion is clearly established. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

Courts look at three factors when evaluating a 388 motion: (1) the seriousness of the problem leading to the dependency, and the reason for any continuation of that problem; (2) the strength of the child’s existing bond with the parent, and the strength of the bond with the caretaker; and (3) the degree to which the problem may be removed or lessened, and the degree to which this has actually occurred. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)

After termination of reunification services when the parent’s interest in the care, custody and companionship of the child takes a back seat to the child’s need for permanency and stability, there is a rebuttable presumption that continued foster care is in the best interest of the child. Indeed, such presumption is stronger where the permanent plan is adoption rather than foster care. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)

Mother first argues that the court erroneously found that a change in custody was not in Anthony’s best interest because she would not be able to provide him security. She maintains that Anthony would not be at risk in a structured residential environment where mother could continue to address her substance abuse issue.

The court did not abuse its discretion in ruling as it did. The court emphasized that there was no time left on the reunification clock, and that what it would have to decide is that “Anthony could be safely returned home under the present circumstances.” Whether or not mother was in a structured program, the decision would be to end dependency and leave Anthony with mother. In other words, the court was concerned that without a role for the Department in this scheme, there was no guarantee that Anthony would be safe because there was no guarantee that mother would continue in the structured program, would continue to improve, etc.

Mother also faults the court for emphasizing that she had not completely “ ‘reformed,’ “ arguing that “ ‘complete reformation’ “ is not a prerequisite for granting the petition.

The court did not misconstrue the law. The court simply commented that in all cases where courts had granted a section 388 motion, “the reformation has been complete.” For example, in In re Kimberly F. the reviewing court reversed the juvenile court’s denial of a section 388 motion, holding that the conditions for the detriment finding at the 18-month review had been eliminated by the time of the section 388 hearing. (In re Kimberly F., supra, 56 Cal.App.4th at p. 535.) To reiterate, the Kimberly F. court explained that section 388 plays a constitutional role in safeguarding against termination of parental rights where “parents complete a reformation in the short, final period” after reunification services have ended but before actual termination of those rights. (Id. at p. 528.) Here, although mother had made tremendous progress, she was still in the early stages of recovery. The court did not abuse its discretion in concluding that mother did not meet her burden in showing that Anthony could safely be returned home under the then-present circumstances because all the things he needed could not be provided given the current situation. “Childhood does not wait for [parents] to become adequate.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)

Mother suggests that if her successful efforts could not lead to recovery, then no parent in recovery could ever meet the burden of a section 388 petition because there would never be enough time to prove sobriety in the limited period allowed. If this were the case, section 388 would not fill its critical constitutional role with respect to a parent in recovery, and the law would not allow such a result. We are not in a position, on the record presented in this case, to address the issue appellant wishes us to consider, namely the “inherent tension between the nature of recovery and the dependency system’s limited time for reunification.” Nor is it our job as an adjudicatory body, determining one case at a time, to resolve this matter--that job is for the Legislature.

Mother also argues that there was no evidence about Anthony’s relationship with his new caregivers, and there was “no question” but that his relationship with her outweighed the relationship “with strangers.” The foster parents were not “total strangers.” Anthony had transitioned to this placement through a series of visits, and had been placed with them two and a half months prior to the hearing on the section 388 petition. While mother very well might be correct that the strength of his bond with her was stronger, that is not the only factor considered on a section 388 petition to change placement. Again, the juvenile court looked at all the circumstances and concluded it was simply too late to safely reunify, despite mother’s substantial progress.

This leads to mother’s next contention, that the court should have ordered additional services. She argues that there was a substantial probability that Anthony would be returned to her custody with a six-month extension of services. The maximum period for extension of services is 18 months from the time the minor originally is removed from parental custody. (§ 361.5, subd. (a).) The 18-month period for Anthony would expire in a little over two weeks from the time of the section 388 hearing. Time had run out.

Mother maintains that this is one of the rare situations where reunification services should be extended beyond the 18-month statutory time, citing, among other cases, Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1465. As that court explained, “trial courts have discretion to continue reunification services past the 18-month date, if it appears the services offered have been defective in some way.” (Ibid.) This court recently wrestled with the issue of extension of services beyond the 18-month statutory period. We explained that we were aware of cases where this has occurred, “but only under extraordinary circumstances ‘involv[ing] some external factor which prevented the parent from participating in the case plan.’ [Citation.] . . . . . . When extraordinary special needs are not at issue, the approach taken in Los Angeles County Dept. of Children etc. Services v. Superior Court (1997) 60 Cal.App.4th 1088 [] makes sense. There, the reviewing court concluded that the juvenile court’s extension of services beyond 18 months was an abuse of discretion and in excess of its jurisdiction, as limited by statute. (Id. at pp. 1091-1092.) Reciting and reviewing the provisions of sections 366.21, subdivisions (f) and (g), and 366.22, the court was adamant that ‘[t]hese statutes make clear that respondent’s order extending reunification services for an additional hearing 21 months after initial removal of the minor from the father’s custody exceeded the court’s jurisdiction.’ [Citation.]” (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1510-1511.)

This is not a case where services were defective. The juvenile court had no authority to extend services another six months.

B. The Court’s Evidentiary Ruling on Bonding Was Not Erroneous

Mother also faults the court for precluding her from questioning Dr. Silverstein on the issue of bonding at the section 388 hearing. The trial court sustained an objection to testimony about bonding on the basis that “bonding and bonding studies, that’s a 26 issue.” Mother is adamant that this was error because evidence of bonding between the dependent minor and the parent and caretakers is relevant to the determination of the child’s best interest. We agree. However, Dr. Silverstein had no information about the bond between mother and Anthony. He only interviewed her. He did not observe mother and child together. Generalized opinions about bonding would have added nothing.

C. There Was Sufficient Evidence of Adoptability

Mother also challenges the sufficiency of evidence at the section 366.26 hearing that Anthony was adoptable. To terminate parental rights and order adoption, the juvenile court must find by clear and convincing evidence that “it is likely the child will be adopted . . . .” (§ 366.26, subd. (c)(1).) The question of adoptability focuses on the minor--whether the minor’s age, emotional state, physical condition, etc., would make it difficult to locate a person willing to adopt. It is not necessary that the minor be placed currently in a potential adoptive home, or that adoptive parents are “ ‘waiting in the wings.’ “ (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Thus the suitability of a particular potential adoptive family to adopt the minor is irrelevant to the question of whether the minor is likely to be adopted. (Id. at p. 1650.)

Here the state adoption specialist testified that Anthony was “extremely adoptable” given his young age--only 22 months--plus he was healthy, had no special needs or developmental delays, and he had shown he could form healthy attachments to others. She believed there would be no problem finding a permanent adoptive placement for him. He was in a fost/adopt home, but even if that placement did not work out, there were many other approved prospective families interested in him. The juvenile court’s conclusion that Anthony was likely to be adopted was supported by substantial evidence.

Mother maintains nonetheless that the Department’s adoptability assessment, as reflected in its March 8, April 4 and April 8, 2005 reports, was speculative because these reports were written before Anthony was moved to his new placement and before a prospective family had been identified. Further, no evidence about his emotional stability in his recent placement was offered at the section 366.26 hearing.

Mother’s statement is not entirely accurate. The April 4, 2005 report did indicate that a nonrelative prospective fost/adopt family had been identified and transitional visits were to begin. Further, the adoption specialist testified that transition visits with the prospective family had commenced on March 22, 2005, with actual placement occurring on April 15, 2005. Moreover, information in the Department’s report about Anthony’s adjustment with his previous foster home--including descriptions of Anthony as “ ‘happy go-lucky’ “ and, although emotionally needy at first, settling in smoothly after the initial placement--was generally relevant to Anthony’s emotional development.

Mother also maintains that because sections 361.5, subdivision (g) and 366.21, subdivision (i) require that an assessment of the prospective adoptive parent be included in the section 366.26 report, suitability of the adoptive family must be at issue at the section 366.26 hearing. Appellant confuses the requirement that the court have accurate and pertinent information about a specific placement with the general finding of adoptability that is required in order to terminate parental rights and place the child for adoption. The requirements are separate and distinct.

Further, mother complains that the Department’s assessment reports contained inherently stale evidence because they did not relate to his current placement. When a hearing is ordered pursuant to section 366.26, the court is required to direct the relevant agency to prepare an assessment that includes numerous items, including “[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, . . . to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child’s needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship.” (§ 366.21, subd. (i)(4); see § 361.5, subd. (g)(4).)

The primary assessment was prepared March 8, 2005, prior to any involvement with the prospective adoptive family. It addressed all the statutory requirements. However, neither the March 8, 2005 report nor the two brief addendums prepared in April 2005, contained any assessment about the eligibility and commitment of the current fost/adopt family, although considerable information was given concerning the prior relative placement and the maternal grandmother’s interference with that placement. While the finding of adoptability did not hinge on the suitability of the current placement, in the interest of providing the court with the most complete and accurate information, the Department should have provided some type of preliminary assessment. After all, Anthony had been in that placement for two and one-half months by the time of the section 366.26 hearing.

Nonetheless, we conclude the assessment report was not statutorily deficient. If deficiencies in an assessment report are sufficiently egregious, they “may impair the basis of a court’s decision to terminate parental rights.” (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) However, “[e]ven if the assessment is incomplete in some respects, the court will look to the totality of the evidence; deficiencies will go to the weight of the evidence and may ultimately prove insignificant. [Citation.] Substantial compliance with the assessment provisions has been deemed enough. [Citation.]” (In re John F. (1994) 27 Cal.App.4th 1365, 1378.) Here, the report as a whole substantially complied with the assessment provisions and, coupled with the testimony of the adoption specialist, was sufficient to apprise the court of Anthony’s adoptability.

III. DISPOSITION

We affirm the orders denying the section 388 petition, terminating mother’s parental rights and freeing Anthony for adoption.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

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

^[2] The minor’s father is not a party to this proceeding.