In re Christian M.

Filed 3/22/07 In re Christian M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Hideo Chino, Commissioner. Affirmed.

Beatriz M. appeals an order of the juvenile court denying her petition for modification under Welfare and Institutions Code^[1]section 388. Beatriz contends the court abused its discretion by denying her request to have her minor son, Christian M., returned to her custody. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2004, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court on behalf of newborn Christian under section 300, subdivision (b), alleging Christian and Beatriz tested positive for methamphetamine at the time of Christian's birth, Beatriz denied using drugs during her pregnancy and she had received no prenatal care. The court detained Christian out of home and ordered Beatriz to be evaluated by the Substance Abuse Recovery Management System (SARMS). Beatriz's two other children, nine-year-old Jesus L. and four-year-old Berania M., remained in her custody.

Beatriz claimed she had never used drugs. She was living with the maternal aunt and was unemployed. Christian's father, Leopoldo C. was financially supporting Beatriz.

At a jurisdiction and disposition hearing, the court sustained the allegations of the petition, declared Christian a dependent, removed him from Beatriz's custody and placed him in foster care. The court ordered Beatriz to participate in reunification services, including individual therapy, parenting classes, in-home support services and substance abuse treatment.

During the next six months, Beatriz completed a parenting class and began participating in therapy. Beatriz's therapist reported she was in complete denial about drug use. However, Beatriz admitted to the social worker that she had used drugs and was in the early stages of recovery. She also began a drug treatment program and told the counselor she had used drugs during her pregnancy. She had two negative drug tests. However, the social worker reported Beatriz did not understand the importance of participating in recovery as evidenced by her forging a friend's signature on a sign-up sheet at a 12-step meeting.

On the recommendation of Beatriz's therapist, Beatriz had an unsupervised visit with Christian. However, she did not return Christian to his foster home at the agreed upon time, claiming she had missed the bus. The foster mother became concerned because Beatriz had previously stated she might take Christian to Mexico if she did not have visits with him. Consequently, Beatriz's visits became supervised. Beatriz missed two visits because of transportation problems.

The social worker believed it was premature to return Christian to Beatriz's care because Beatriz continued to minimize the protective issues, failed to take responsibility for her actions or adhere to the visitation rules, claimed to be a victim of circumstance and had not shown significant progress on her case plan. Beatriz was living in a studio apartment with Leopoldo, Jesus and Berania, and would need a larger residence before Christian could be returned to her.

At the six-month review hearing, the court found Beatriz had made some progress with her case plan and continued Christian as a dependent in foster care. The court ordered Beatriz to complete a psychological evaluation.

Beatriz was pregnant with her fourth child and stopped attending therapy due to pregnancy complications. She continued to test negative for drugs, but she did not consider Narcotics Anonymous (NA) meetings essential to her recovery. On two occasions, Beatriz tried to submit NA attendance reports with altered dates. As a result, she was considered noncompliant with SARMS. Visits with Christian remained supervised until Beatriz could show she was responsible, reliable and understood the seriousness of her substance abuse problem.

Beatriz participated in a psychological evaluation by Marvin Galper, Ph.D. Dr. Galper evaluated Beatriz as extremely dependent, and considered her denial of substance abuse to be a risk factor in her reunification efforts. Beatriz needed to complete a substance abuse treatment program and show she recognized the threat drug use posed to Christian's welfare. In Dr. Galper's opinion, Beatriz would need an extensive period of sustained sobriety before Christian could safely be returned to her.

In December 2005, Beatriz was taken to the emergency room with contusions and lacerations on her face and hands resulting from an assault by Leopoldo. Beatriz reluctantly obtained a restraining order against Leopoldo and moved into the maternal aunt's home. A month later, Beatriz requested cancellation of the restraining order and was again living with Leopoldo. Agency filed petitions on behalf of Jesus and Berania and removed them from Beatriz's care.

The social worker reported Beatriz had made minimal progress with her case plan. She was offered reunification services, but did not benefit from them. Her attempts to alter signature sheets for NA meetings indicated she had not developed insight into how drugs affected her and her children, and she did not understand the seriousness of her substance abuse or her need to be responsible and reliable for her children.

At a 12-month review hearing, the court found Beatriz had not made substantive progress with her case plan, and returning Christian to her custody would be detrimental to him. The court terminated reunification services and set a section 366.26 selection and implementation hearing.

In August 2006, Beatriz filed a section 388 modification petition seeking to have Christian returned to her care. As changed circumstances, she alleged she had: (1) enrolled in a domestic violence program and attended 16 sessions; (2) participated in SARMS since December 2004 and was in good compliance; (3) attended seven therapy sessions in the past four months; and (4) completed a six-month substance abuse treatment program. As to best interests, Beatriz alleged she was a stable and stronger parent who engaged in all reunification services.

At a hearing on Beatriz's modification petition, the court admitted into evidence Agency's various reports. The social worker's assessment report described Beatriz's visits as inconsistent and sporadic. During one visit, Christian was quiet, shy and hesitant. He did not appear to be bonded to Beatriz and did not reciprocate her affection. At the end of the visit, he walked away smiling and did not look back. Christian seemed to enjoy the second visit observed by the social worker. He accepted Beatriz's attention, but did not hug or kiss her. When the visit ended, Christian smiled and had no difficulty separating from Beatriz.

Although Christian's current foster parents were not able to adopt him, the social worker assessed Christian as highly adoptable. In the social worker's opinion, Beatriz and Christian did not have a beneficial parent-child relationship, termination of parental rights would not be detrimental to Christian, and adoption was in his best interests.

Beatriz's therapist, Eliza Mendoza, testified Beatriz had done well in therapy and met all her goals. Beatriz had acknowledged the impact of domestic violence on her family and had developed a safety plan. Mendoza believed Beatriz had reduced her risk of being involved in domestic violence and had not had contact with Leopoldo since she began therapy in April 2006.

Mendoza further testified Beatriz completed her drug treatment program and a parenting class, and she seemed more responsible. Beatriz needed to develop job skills, find employment, participate in a codependency program and continue attending therapy.

Beatriz told Mendoza she would like the entire family, including Leopoldo, to reunify. Beatriz admitted she still had feelings for Leopoldo, and she hoped he had learned his lesson.

Beatriz testified she had been visiting Christian once a week for the past three months. She played with him and brought him food. Although she did not visit Christian from January to May 2006, she frequently telephoned the foster home to inquire about his well-being.

Beatriz further testified she completed a domestic violence counseling program and continued to participate in it voluntarily. She had not had contact with Leopoldo since December 2005. However, on cross-examination, Beatriz admitted having contact with Leopoldo twice since then, despite the existence of a restraining order.

Beatriz said she had benefited from her six months of therapy and a parenting class. She was clean and sober, having successfully completed drug treatment and SARMS. She planned to complete a codependency program and find employment. Beatriz continued to live with the maternal aunt, who helped support her.

Beatriz still had romantic feelings for Leopoldo. She wanted to reunite with him "at any cost," but expected him to complete his programs and participate in marriage counseling. She did not consider Leopoldo a perpetrator of domestic violence because he was a good person, and the domestic violence incident was a mistake. Although Beatriz would like to be with Leopoldo again, she recognized the children come first.

Social worker Rigoberto Vindiola testified Beatriz had done well with her services, but her circumstances had not changed. Her progress in domestic violence treatment was recent, and her testimony that Leopoldo was not a perpetrator and the domestic violence incident was a mistake showed she remained at risk. Beatriz continued to live with the maternal aunt, whose home was not an appropriate placement for Christian. In Vindiola's opinion, it was not in Christian's best interests to be returned to Beatriz's custody because she could not provide him with a stable and permanent home.

After considering the evidence and hearing argument of counsel, the court denied Beatriz's section 388 petition. The court found Beatriz had made considerable progress but she had not shown sufficient changed circumstances to warrant modifying the court's previous order. Further, Beatriz had not shown returning Christian to her custody was in his best interests.

DISCUSSION

A

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the trial court. (In re Stephanie M., at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47; In re Zachary G. (1999) 77 Cal.App.4th 799, 812.)

B

The evidence showed Beatriz was no longer using drugs, she had completed most of her case plan requirements, and had recently begun to visit Christian regularly. Her efforts to change her life were commendable. However, Beatriz had limited insight regarding the effect of drug abuse or domestic violence on her children. She did not fully understand the seriousness of her substance abuse recovery as shown by her attempts to alter dates on her NA attendance reports and forge a friend's signature at a 12-step meeting. Further, she was not truthful with her therapist when she reported having had no contact with Leopoldo for eight months when, in fact, she met with him on two occasions despite the existence of a restraining order. Beatriz minimized the incident of domestic violence, claiming it was a mistake, admitting she still had romantic feelings for Leopoldo and saying she wanted to reunite with him. In her effort to become more responsible and self-sufficient, Beatriz still had no employment or housing to provide Christian with a safe environment.

Beatriz's circumstances - some changed, others changing - were not sufficient to warrant having Christian returned to her custody. Changing circumstances do not promote a child's best interests because the result would be to delay the selection of a permanent home to see if a parent, who has failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) " '[C]hildhood does not wait for the parent to become adequate.' [Citation.]" (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

Even had Beatriz shown sufficient changed circumstances, she did not show modifying the court's previous order was in Christian's best interests. Christian was taken into protective custody at birth. Beatriz's visits were inconsistent, including a four-month period of no visits. She had not progressed beyond supervised visits, and Christian did not show any attachment to her. Beatriz still needed to find a job, suitable housing, and further address issues of codependency. The court properly evaluated the evidence presented at the section 388 hearing in light of Christian's need for stability and security, and found his best interests would not be served by returning him to Beatriz's custody. Applying a deferential standard of review, we conclude the court acted within its discretion by denying Beatriz's modification petition. (In re Stephanie M., supra, 7 Cal.4th at pp. 317-319.)

DISPOSITION

The order is affirmed.

BENKE, Acting P.J.

WE CONCUR:

AARON, J.

IRION, J.

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