Filed 5/22/17 In re C.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 C.G., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.W.,

Plaintiff and Respondent.


E067625

(Super.Ct.No. J260407)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court terminated defendant and appellant, K.W.’s (Mother), parental rights as to C.G. (Minor), born in June 2013. On appeal, Mother contends the court abused its discretion in denying her Welfare and Institutions Code section 388 petition and erred in finding the parental beneficial relationship exception to termination of parental rights inapplicable. We affirm.
I. FACTUAL AND PROCEDURAL HISTORY
On May 5, 2015, personnel with plaintiff and respondent, San Bernardino County Children and Family Services (CFS), received a referral regarding Mother for general neglect and emotional abuse of Minor; it was reported Mother would leave Minor for days at a time with the maternal grandparents (MGPs). Mother, who was living with the MGPs, would also apparently leave intermittently with Minor; one time she left and returned with him a week later, during which time Minor lost 10 pounds.
Mother used drugs with her boyfriend. Mother admitted using methamphetamine on April 13, 2015. Due to her drug use, Mother slept a lot and could not care for Minor. The maternal grandfather evicted Mother on April 16, 2015, due to her drug use. A social worker went to the MGPs’ home on May 8, 2015; the MGPs had no current contact information for Mother. The MGPs suspected Mother had been involved in a burglary of their home. Mother subsequently admitted burglarizing the home while she was on methamphetamine.
On May 19, 2015, the maternal grandfather came to the CFS offices with Minor; Mother had been arrested for possession of drugs and drug paraphernalia. The MGPs also now reported an incident of domestic violence between Mother and her boyfriend, wherein Mother slapped her boyfriend three times. A review of Mother’s records reflected she had an extensive history of marijuana use. Mother had experienced “negative consequences” from substance abuse in 2011, including abuse of marijuana and prescription drugs during which she suffered an overdose. Mother had a criminal history which included arrests for four burglaries and two controlled substance charges.
The maternal grandfather reported Mother had previously been hospitalized after an attempted suicide. Mother had been diagnosed as bipolar at age 15 and as suffering from anxiety disorder at age 18. Mother was previously prescribed a number of medications, including Ativan and Prozac; however, she was not currently taking any prescription medications.
On May 21, 2015, CFS personnel filed a juvenile dependency petition alleging, as to Mother, that she had substance abuse issues (b-1); suffered from untreated mental illness (b-2); engaged in domestic violence (b-3); and was incarcerated and, therefore, unable to care for Minor (g-7). On May 26, 2015, the juvenile court detained Minor.
In the jurisdiction and disposition report filed on June 12, 2015, Mother said she only used controlled substances “briefly.” She denied that the needles found in her home were hers. Mother also denied the paraphernalia found when she was arrested belonged to her. Mother said she was clean from marijuana, but admitted to smoking methamphetamine. She said she began using marijuana when she was 13 years old. Mother admitted slapping her boyfriend, but trivialized the incident. She reported she was now pregnant.
A June 16, 2015, information to the court, reflected Mother had been released from jail around June 3, 2015. She visited with Minor on June 10, 2015; the visit was deemed “generally appropriate.” Mother brought Minor a toy and tried to engage him in play.
Mother failed to show for the jurisdiction and disposition hearing on June 29, 2015. The court dismissed the g-7 allegation, but found the remaining allegations true. The court removed Minor from Mother’s custody and ordered reunification services. Mother’s case plan included requirements that she remain sober, obtain mental health services and counseling, participate in substance abuse services, and receive parenting education.
In the status review report filed on December 23, 2015, the social worker recommended the court terminate Mother’s reunification services. Mother failed to show for five drug tests. Mother’s last visit with Minor occurred on July 15, 2015. Mother relapsed and was reincarcerated on August 23, 2015; she was released on October 19, 2015. Mother went into an 18-month drug court program, but used methamphetamine again on October 27, 2015, causing her to test positive on three occasions. Mother failed to show for drug tests on November 9 and 10, 2015. Mother had 24 negative drug tests since her last positive test.
Mother did not contact the social worker regarding participation in her case plan until November 5, 2015. Mother had been attending Narcotics Anonymous/Alcoholic Anonymous meetings. Mother attended three parenting groups totaling four and a half hours. Mother visited Minor four times between October 30 and November 20, 2015; she was an hour late for the last visit.
On February 23, 2016, CFS changed its recommendation from termination of reunification services to a continuance of reunification services. Mother had been participating in her case plan and making progress. She had a total of 44 negative drug tests in her drug court program. She was regularly attending Narcotics Anonymous/Alcoholic Anonymous meetings. Mother had participated in four out of eight counseling sessions. The court approved the changed recommendation, continued services, and gave CFS discretion to permit unsupervised and overnight visits.
On April 4, 2016, CFS personnel reported Mother had a positive drug test on February 29, 2016; Mother initially said someone had blown smoke in her face. Mother later admitted using methamphetamine. Mother failed to show for a drug test on March 18, 2016; the drug court reincarcerated Mother on March 28, 2016.
In the status review report filed on July 28, 2016, the social worker recommended that the court terminate Mother’s reunification services. Mother remained incarcerated; her current release date was September 28, 2016. Mother had attended only one therapy session since the last hearing.
At the hearing on September 2, 2016, it was noted Mother had been released from jail on August 23, 2016. The court terminated Mother’s reunification services and set the section 366.26 hearing.
In a September 22, 2016 minute order, the social worker requested that Mother’s visitation with Minor be suspended. Since visitation had resumed, Minor was regressing and having emotional issues. He had become aggressive, threw toys, punched and kicked others, wet the bed, and was having night terrors. At a visit on September 14, 2016, Minor was “defiant and annoyed towards” Mother. Minor became loud and aggressive. Minor said he did not want to go back to Mother and threw himself on the floor in a tantrum. The social worker opined it would be emotionally detrimental for Minor to continue having visits with Mother and the maternal family. On October 24, 2016, the court discontinued visits between Minor and the extended maternal family, but allowed visits with Mother to continue on a once monthly basis.
In the section 366.26 report filed on December 22, 2016, the social worker recommended that the court terminate Mother’s parental rights. Minor had been placed with the current prospective adoptive parents (PAPs) on August 22, 2016; it was his fifth placement since the beginning of the dependency proceedings. Minor was “clearly” attached to the PAPs; he called them “‘mom’” and “‘dad.’” Minor now referred to Mother as “‘other mommy,’” “‘dark mommy,’” or “‘bad mommy.’” After a visit with Mother, Minor told the social worker, “‘I don’t like my other mommy . . . I like this mommy,’” referring to Mother as the former and the prospective adoptive mother as the latter.
The social worker noted the extensive periods of time in which Mother had not visited with Minor, including her periods of incarceration between May 19 and November 2015; August 23 and October 19, 2015; and March 28 and August 25, 2016. Mother had missed two visits on July 29 and 31, 2015, when she was not incarcerated.
Minor did not want to attend the first visit, on September 7, 2016, after Mother’s latest incarceration; Minor cried, screamed, and threw a temper tantrum. During the visit Minor would tell Mother to let him go and not to touch him whenever she would try to hold or play with him. Afterward, he said he did not want to see “mean mommy again.” The social worker also recounted Minor’s behavior on the September 14, 2016 visit. During a visit on November 18, 2016, Minor appeared happy to see Mother; they told each other they loved one another. Mother said she missed Minor; he said he missed her too. When it was time to leave, Minor appeared upset.
The social worker noted that over the course of the dependency proceedings, Mother had no visitation with Minor for a total of 11 months, mostly due to her incarceration. The social worker observed Minor became detached from Mother at the very early age of one year old. The PAPs stated their relationship with Minor was “‘strong . . . he’s a part of our family.’” Minor felt a sense of belonging in their family. They “‘love him to death.’” Minor understood that adoption would mean “‘I get to live with them.’” He says he “‘want[s] to stay with them.’”
On January 13, 2017, Mother filed a section 388 petition. Mother requested reinstatement of reunification services, increased visitation, and “PCIT [Parent Child Interactive Therapy] to restore the parent-child relationship.” Mother alleged as changed circumstances her completion of a 12-week parenting program; a three-hour parenting seminar; and her active participation in the drug court program since August 26, 2016, in which she would complete phase 1 on March 8, 2017. She asserted she had maintained sobriety since enrolling in the drug court program. Mother alleged the change was in Minor’s best interest because it would allow him to establish a normal relationship with his newly born sister, which would be a lifelong advantage to him.
The court summarily denied the petition without an evidentiary hearing. The court found the proposed change did not promote the best interest of Minor because, “due to repeated incarcerations, [M]other missed approx[imately] 11 months of visitation. This [M]inor has had [five] placements and is finally secure and attached to his current caretakers. I have considered the [section] [366].26 report.”
The court held the section 366.26 hearing on January 25, 2017. Mother testified she had cared for Minor for two years prior to his removal. Other than her incarcerations, she had missed only one or two scheduled visits due to transportation problems. During visits, Minor “would sit on my lap and play with Legos. He would tell me he loved me, and when I go to leave, he would ask if he could come home with me.” Minor wanted to hug her nonstop. He was “ecstatic” when he would first see her; he would jump on her and hug her. When he had to leave he would cry and ask her not to leave; he would kick and scream because he did not want to go with the foster parents.
Even after her last incarceration, Minor still calls her “mommy” and seeks affection from her. She still visits him monthly; he smiles, says “mommy,” and runs and hugs her at the onset of visits. Minor sits on her lap, hugs her, gives her kisses, and engages with her in play. He becomes upset when it’s time to leave; he says he doesn’t want to go; he tells her he loves her, misses her, and will see her soon.
The court found Minor adoptable. With respect to the beneficial parental relationship exception, “the Court does not find that there is sufficient evidence to warrant applying that exception in this case. One of the first issues is whether there has been ongoing and consistent visitation, and unfortunately in this case there has not been.” “It looks like if you add up not just the incarceration periods but the missed visits either immediately or the time it takes to then re-set it up, there are somewhere between [nine] and 11 months where there were no visits for a child who is in the developmental stages of most needing those visits to maintain a bond. So I can’t find that visitation has been consistent.” The court terminated Mother’s parental rights.
II. DISCUSSION
A. Section 388 Petition
Mother contends the court abused its discretion in denying her section 388 petition. We disagree.
“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.)
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.) “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. (1999) 70 Cal.App.4th 38, 47.)
Chronic substance abuse is generally considered a 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 § 388 petition where mother established only a 372-day period of abstinence]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [“seven months of sobriety since . . . relapse . . . , while commendable, was nothing new.”]; In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [“To support a section 388 petition, the change in circumstances must be substantial. [Citation.] [A parent’s] recent sobriety reflects ‘changing,’ not changed, circumstances. [Citation.]”].)
In the first instance, Mother failed to establish a prima facie case of changed circumstances. Mother alleged she had been actively participating in the drug court program since August 26, 2016; however, the documentation Mother attached to her petition established she was still only in phase 1 (stabilization/abstinence) of a four-phase program and still had two months left to complete the first phase. Mother had previously participated in the drug court program, but failed to successfully complete the first phase due to her consistent relapses. Indeed, since her initial incarceration, over the course of 22 months, Mother had failed to show for eight drug tests and had positive drug tests on six occasions.
Even assuming Mother had refrained from drug use since entering the drug court program on the latest occasion, this would establish less than five months of abstinence. Considering that Mother began using controlled substances at the age of 13 and had multiple relapses since the beginning of the dependency proceedings, five months of abstinence is simply not demonstrative of a change of circumstances. Moreover, Mother failed to allege completion of any programs directed at ameliorating the domestic violence or mental health issues which were also the subject of the juvenile court’s jurisdiction. Thus, Mother failed to allege changed circumstances.
Furthermore, as the court expressly found, Mother’s requested relief was not in Minor’s best interest. Although Mother had custody of Minor for nearly the first two years of his life, the MGPs reported that Mother often left Minor in their care; Minor had actually lived with the MGPs for most of his life. Mother had spent 11 of the 20 months of the dependency proceedings incarcerated and, therefore, unable to visit with Minor. Mother even missed or was late to several of the visits scheduled for when she was not incarcerated.
Later visits reflected what the social worker described as Minor’s “detach[ment]” from Mother. Minor did not wish to resume visitation with Mother. He would cry, scream, throw temper tantrums, and tell Mother not to touch him during visits. He was defiant, annoyed, loud, and aggressive toward Mother. Minor regressed after visits with Mother, becoming aggressive, throwing toys, punching and kicking others, wetting the bed, and having night terrors. Minor referred to Mother as “bad mommy” or “mean mommy.” The social worker opined that it would be emotionally detrimental to Minor to continue visitation with Mother and sought to suspend visitation. Indeed, even Mother in her petition requested parent-child interactive therapy in order to “restore the parent-child relationship”; thus, Mother effectively admitted their relationship had been severely compromised.
Meanwhile, Minor had become attached to the PAPs, his fifth placement; he called them “‘mom’” and “‘dad.’” Minor wished to stay with the PAPs. Thus, it was not in Minor’s best interest to reinstate Mother’s reunification services which would undermine the security and attachment Minor had finally gained in his placement with the PAPs.
B. Beneficial Parental Relationship Exception
Mother contends the court erred in finding the beneficial parental relationship exception to termination of parental rights inapplicable. We disagree.
Once reunification services have been terminated and a child has been found adoptable, “adoption should be ordered unless exceptional circumstances exist.” (In re Casey D., supra, 70 Cal.App.4th at p. 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.” A beneficial relationship is established if it “‘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.’” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “The parent has the burden of proving that 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.)
“‘[T]he 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.’ [Citation.]” (In re C.F. (2011) 193 Cal.App.4th 549, 555.)
“[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., supra, 78 Cal.App.4th at p. 1350; accord, In re Casey D., supra, 70 Cal.App.4th 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 . . . .” (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.)
Here, Mother failed to demonstrate that termination of her parental rights would be detrimental to Minor. Indeed, as discussed above, Mother failed to maintain regular visitation with Minor. She was incarcerated for 11 of the 20 months of the dependency proceedings. She missed or was late to several visits when she was not incarcerated. As the juvenile court expressly found, Mother did not maintain regular visitation with Minor.
Likewise, although Mother testified she had a beneficial relationship with Minor, the court was free to disregard Mother’s credibility on the issue. (In re Alvin R. (2003) 108 Cal.App.4th 962, 974 [it is the exclusive province of the juvenile court to determine the credibility of witnesses and appellate courts are bound by such determinations and the reasonable inferences therefrom].) Again, as discussed above, ample evidence supported the court’s determination that no beneficial bond existed between Mother and Minor. Minor regressed after visitation resumed after Mother’s latest period of incarceration. He referred to Mother as “bad mommy” and “mean mommy.” Minor refused any physical contact with Mother. He did not want to see Mother again. The social worker opined Minor had become “detached” from Mother and believed that further visits with Mother would be emotionally detrimental to Minor.
Minor was now in a stable and loving placement with the PAPs, whom he called “‘mom’” and “‘dad.’” Sufficient evidence supported the court’s determination that the beneficial parental relationship exception to termination of Mother’s parental rights was inapplicable.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.


We concur:

MILLER
J.

SLOUGH
J.