In re C.L.

Filed 6/22/07 In re C.L. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeals from orders of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Sharon L. Grier for Defendant and Appellant Thomas L.

John L. Dodd & Associates and John L. Dodd for Defendant and Appellant Andrea L.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

INTRODUCTION

Eight-week-old C. L. was taken into protective custody in December 2005 after her mother, Andrea L. (Mother), and father, Thomas L. (Father), were arrested in C.s presence for being under the influence of a controlled substance, placing her at risk of harm or death, and leaving her without a caretaker. The Orange County Social Services Agency (SSA) filed a juvenile dependency petition alleging C.s parents failed to protect C. (Welf. & Inst. Code, 300, subd. (b).) (All further statutory references are to the Welfare and Institutions Code unless otherwise specified.)

After the juvenile court terminated reunification services and set a permanency hearing under section 366.26, Mother and Father each filed a petition under section 388 seeking the return of C. to their care or, alternatively, additional reunification services. The juvenile court summarily denied the petitions. Following a hearing, the court terminated Fathers and Mothers parental rights.

Father and Mother contend the juvenile court (1) abused its discretion by summarily denying their section 388 petitions, and (2) erred by finding the parent-child relationship exception to the termination of parental rights under section 366.26, subdivision (c)(1)(A) inapplicable. We affirm.

Fathers and Mothers section 388 petitions failed to make a prima facie showing of a change of circumstances or to show that the requested modifications in the petitions would be in C.s best interests. The juvenile court, therefore, did not abuse its discretion by denying the petitions.

Although evidence at the permanency hearing showed Mother and Father regularly visited C., they did not satisfy their burden to show that severing their relationship with C. would deprive her of a substantial, positive emotional attachment such that [C.] would be greatly harmed. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

BACKGROUND

In January 2006, Father and Mother (the parents) pleaded no contest to the allegations of the juvenile dependency petition filed under section 300, subdivision (b), as amended by the juvenile court (the amended petition). The amended petition alleged that in December 2005, Mother drove C. to Nordstroms department store while under the influence of a controlled substance, prescription medication, and alcohol. Police officers found Mother unable to stand up. Father was also under the influence of Mothers prescription medication and alcohol; he was drowsy and falling asleep while standing up. He had attempted to burn security tags off clothing at the store with a cigarette lighter. Father was the caretaker of eight‑week‑old C. at the time, and thus placed C. at severe risk of injury or death by his condition. Father was also in possession of an illegal weapon.

The amended petition further alleged the following. Mother has a history of substance abuse dating back to 1993, which involved the abuse of heroin, alcohol, and prescription drugs. Father has a criminal history, and a history of substance abuse dating back to 1995, which includes the abuse of marijuana, controlled substances, alcohol, and prescription drugs. The parents substance abuse problems have impaired their ability to properly care for and supervise C. Despite prior participation in substance abuse rehabilitation programs, the parents have both failed to maintain their sobriety. Father also suffers from symptoms of depression, which have further impaired his ability to effectively parent C.

The amended petition stated that in December 2005, the parents were arrested for cruelty to a child in violation of Penal Code section 273, subdivisions (a) and (b), and for being under the influence of a controlled substance, thereby placing C. at risk of harm or death, and leaving her without a caretaker. Father was also arrested for possession of a dangerous weapon in violation of Penal Code section 12020, subdivision (a)(1). C. was detained by SSA, and placed in the home of her maternal grandparents.

The juvenile court found the allegations of the amended petition true by a preponderance of the evidence, and found that C. comes under section 300, subdivision (b) (failure to protect), as alleged in the amended petition.

In February 2006, the parents stipulated to dispositional orders vesting custody of C. with SSA and offering them family reunification services. The case plan approved by the juvenile court required the parents, inter alia, to stay sober; participate in SSA‑approved substance abuse treatment programs, counseling, parenting classes, and Narcotics Anonymous; and submit to twice‑weekly random drug and alcohol testing.

SSAs six‑month status review report, dated July 25, 2006, stated that further progress was needed with regard to the parents cooperation with their case plans. Father had missed five drug tests; a missed test was considered a positive test result under the terms of the case plan. He also had two diluted tests; Father claimed the tests were diluted because his doctor had instructed him to drink nine glasses of water a day as part of a medical treatment.

Mother did not drug test. She was discharged from a perinatal program on June 14, 2006, and she had not seen a therapist since the end of June. Mother claimed she had participated in programs, counseling, and drug testing, but failed to provide the social worker with sufficient information to confirm Mothers participation.

The parents had regularly visited C. Father visited C. several hours each week. C. would always be excited to see Father, and he would hold her, kiss her, and talk to her during the visits. Mother visited C. daily for nine hours each visit. All visits between C. and the parents were monitored by the maternal grandmother.

The social worker recommended in the July 25 status review report that the court order six more months of reunification services to allow for further evaluation of the parents and whether they will comply to case plan requirements and be more cooperative and forth coming with [SSA].

In an addendum report, dated August 9, 2006, SSA changed its recommendation and requested that at the six‑month review hearing, the court terminate reunification services and schedule a permanency hearing. Although Mothers twice‑weekly drug testing schedule was reinstated on July 28, she failed to drug test on July 28 or August 1. Fathers twice‑weekly drug testing schedule was reinstated on July 19, but he failed to test on July 20, 24 and 27. The addendum report further stated, [t]he parents are required to participate in a substance abuse program as set out in the case plan and approved by [SSA]. However, the parents did not enroll or participate in the required program, but instead enrolled in a different program (Care Counseling Center) that was required through Criminal Court. This program would have [been] beneficial to the parents however they did not attend any classes in this program. Furthermore, [Mother] reported enrolling [in] the [Penal Code section] 100[0] classes for three months . . . . However, [Mother] was not enrolled in the drug program.

The parents informed the social worker that they enrolled in a Penal Code section 1000 program and attended the first session on August 2, 2006, and that they attended Narcotics Anonymous meetings at least twice a week. Notwithstanding these efforts, and the parents consistent expression of love for C. and desire to reunify with her, they continued in their noncompliance with the case plan as recently as July 25, 2006 and thereafter. The report stated SSA has reassessed that the likelihood and prognosis of successful Reunification of the child and the childs parents is poor as indicated by the parents[] continued noncompliance with the case plan requirements. Despite the efforts of [SSA] to afford the parents a furthered opportunity to comply with these services, they have failed to do so. And, they failed to do so after repeated advisement to be compliant, fully knowing what the consequences of this lack of action would bring about (a recommendation for adoptions of their child). . . . The most appropriate recommendation will be to change the recommendation to terminate Family Reunification services and schedule a 366.26 Hearing on behalf of the child.

At the six‑month review hearing on August 9, 2006, the juvenile court found that reasonable services had been provided or offered to the parents and that they failed to participate regularly in the court‑ordered case plans. The court terminated reunification services to the parents and set a permanency hearing.

On December 12, 2006, the parents each filed a petition under section 388. In his petition, Father requested that the court award him physical custody of C., or order a 60‑day trial visit or six more months of family reunification services. Mothers petition sought the return of C. to the parents care under family maintenance supervision, or an order for further family reunification services with much more frequent and liberal visitation. The juvenile court summarily denied both petitions on grounds the petitions did not state new evidence or a change of circumstances, and did not show how the request would be in C.s best interests.

The permanency hearing report, dated December 7, 2006, stated that the maternal grandparents, with whom C. had been placed since December 2005, were interested in adopting her and providing her with a nurturing, stable, and permanent home. The report stated the maternal grandparents are financially stable and are providing excellent emotional support as well as material care for the child. They have provided C. a warm, caring, and nurturing environment. C. has appeared very comfortable with the maternal grandparents. The permanency hearing report also stated that the parents had continued to consistently visit C. and that she was excited to see them.

At the permanency hearing on December 13, 2006, Father testified: he was present at C.s birth; during visits, he holds her, shows her love, feeds her, changes her diapers, gives her baths, takes her for walks, and plays with her; he soothes her when she falls; and she appears to be happy when he is there, calls him daddy, reaches out to him, and gives him kisses. Father admitted that C. has a bond with the maternal grandparents and that they have taken extremely good care of her for the past year.

Mother testified that she and Father took care of C. for the first two months of her life. Mother stated that in January 2006, she was permitted to live in the maternal grandparents house, which enabled her to care for C. (under the supervision of the maternal grandmother). In March 2006, Mother was no longer allowed to spend the night at the maternal grandparents home.[1] Mother fed C., played with her, changed her diapers, read to her, and put her to bed at night.

In May 2006, Mothers visitation was reduced to 12 hours per week, and in July, it was reduced again to eight hours per week. During her monitored visits, she would continue to take care of C. She testified C. calls her mommy and does not refer to the maternal grandmother as anything. Mother admitted she did not finish her case plan and had missed a few drug tests. She acknowledged that C. is bonded with the maternal grandparents, and that they have occupied a parenting role for C. during the past year, except when Mother was present.

The court found that the parents had failed to meet their burden that the parent-child relationship exception to the termination of parental rights under section 366.26, subdivision (c)(1)(A) applied. The court found C. adoptable and terminated the parents parental rights.

The parents separately appealed from the juvenile courts order summarily denying the section 388 petitions and order terminating their parental rights.

DISCUSSION

I.

The Juvenile Court Did Not Abuse Its Discretion by Summarily Denying the Parents Section 388 Petitions Without a Hearing.

The juvenile court denied the parents section 388 petitions without a hearing on the grounds the court (1) d[id] not have proof that the parents engaged in an SSA-approved treatment program or that parents continued to test clean, and (2) ha[d] no evidence to suggest that it would be in the best interest of the child to provide the relief requested by counsel for parent(s). The parents contend the juvenile court abused its discretion by summarily denying their petitions.

To succeed on a section 388 petition, a parent must show changed circumstances establishing that the proposed modification would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

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 childs best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Evidence that merely shows a parent is beginning on the road to recovery from his or her relevant problems is not sufficient to warrant a hearing. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610 [parents initiation of drug rehabilitation is not a changed circumstance sufficient to warrant a section 388 hearing].)

We apply the abuse of discretion standard in our review of the juvenile courts decision to deny the section 388 petitions without a hearing. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We may not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) We affirm the order unless it exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) The juvenile courts decision will not be disturbed unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

Neither Fathers petition nor Mothers petition showed a genuine change of circumstances or new evidence sufficient to trigger a hearing on the petitions. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) Neither petition showed compliance with the case plan. Father filed a declaration in support of his petition stating he completed a drug diversion class pursuant to Penal Code section 1000, continues to attend individual counseling sessions, continues to attend 12‑step meetings, attends a weekly parenting class, has regularly drug tested, and visits C. on a regular basis. Mother also filed a declaration in support of her petition which similarly stated that she completed the drug diversion program pursuant to Penal Code section 1000, regularly tests for substance abuse, attends Narcotics Anonymous meetings, works with a physician to address her medical issues, maintains regular visits with C., maintains a stable home, has an income, and has no further violations of the law.

As pointed out by the juvenile court, neither petition showed Father or Mother regularly participated in an SSA‑approved drug treatment program as required by the case plan. They did not show that they had been tested twice a week since the six‑month review hearing and that the test results were negative for drugs. In addition to his declaration, Father requested the court consider portions of SSAs permanency hearing report (which had been filed before Fathers section 388 petition) for additional proof of changed circumstances. That report, however, showed that since the six‑month review hearing on August 9, 2006, Father did not drug test on September 11 or 18, or October 2 or 27, and he had diluted tests on September 7, 21, 28, and October 5, 12, and 23. Fathers declaration asserted his tests were diluted as a result of his doctors direction that he drink 80 ounces of water daily. Father did not, however, offer a note from his doctor corroborating that assertion.

Furthermore, neither petition showed that the requested orders would be in C.s best interest. In determining whether a section 388 petition addresses the best interests of the child, the following factors should be considered: (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. (In re Kimberly F., supra, 56 Cal.App.4th 519, 532.) Neither petition addressed the strength of the relative bonds of C. to the parents and to the maternal grandparents. While the petitions show the parents might have made some progress toward resolving their substance abuse problems, they reflect at most changing circumstances.

At this point in the proceedings, on the eve of the selection and implementation hearing, the childrens interest in stability was the courts foremost concern, outweighing any interest mother may have in reunification. (In re Anthony W., supra, 87 Cal.App.4th 246, 251-252.) As in In re Anthony W., here, the parents made no showing how it would be [C.]s best interest to continue reunification services, to remove [her] from [her] comfortable and secure placement to live with [the parents] . . . . [C.] should not be made to wait indefinitely for [Father or Mother] to become an adequate parent. (Id. at p. 252.)

The juvenile court did not abuse its discretion by summarily denying the section 388 petitions.[2]

II.

Substantial Evidence Supports the Juvenile Courts Finding the Parent-child Relationship Exception Did Not Apply.

The parents contend the juvenile court erred by failing to find the parent-child relationship exception to the termination of parental rights applicable. Section 366.26, subdivision (c)(1)(A) allows the juvenile court to decline to terminate parental rights over an adoptable child if it finds a compelling reason for determining that 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. Father and Mother had the burden of proving both prongs of the parent‑child relationship exception were satisfied. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 949.) We consider whether substantial evidence supports the juvenile courts determination the parent‑child relationship exception did not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424‑425.)[3]

The record shows the parents have had regular visitation and contact with C. under section 366.26, subdivision (c)(1)(A). However, they did not satisfy the second prong of the exception, by showing C. would benefit from continuing the relationship within the meaning of section 366.26, subdivision (c)(1)(A).

In In re Autumn H., supra, 27 Cal.App.4th 567, 575‑576, the court stated: In the context of the dependency scheme prescribed by the Legislature, we interpret the benefit from continuing the [parent/child] relationship exception to mean 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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction,

companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. [] At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent. Social workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court. The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond.

Substantial evidence supports the juvenile courts finding that the parent‑child relationship exception did not apply. C. was in the parents custody for two months before she was detained and placed with the maternal grandparents. At the time of the permanency hearing, C. was almost 14 months old. She had spent the vast majority of her life in the care and custody of the maternal grandparents. The parents admitted that C. and the maternal grandparents had a bond, and that the maternal grandparents had taken good care of her. The maternal grandparents provided a warm, caring, and nurturing home. They wished to adopt C. and provide her a stable and permanent home. C. appeared comfortable with the maternal grandparents.

The record shows that the parents have consistently visited C., and, in doing so, helped to take care of her. The record also shows the parents were loving and appropriate during visits. The visits, however, were always monitored by the maternal grandmother because the parents failed to make sufficient progress in their case plans. Consequently, the maternal grandparents have occupied a parental role in C.s life.

At oral argument, Mothers counsel suggested that Mother took care of C. when the maternal grandmother was at work, during which time C.s babysitter would act as the monitor. The record shows the maternal grandmother as the sole monitor for Mothers visits with C. and does not explain how visits, if any, were monitored when the maternal grandmother was away at work. At the permanency hearing, Mother testified that her visits were always under the supervision of the maternal grandmotherthe maternal grandmother has always been in the house during visits. Mother testified that while the maternal grandmother is at work, someone else takes care of C. during that time. Although the record also shows Mother had all‑day visits with C. in the early part of 2006, the record does not state that such visits occurred while the maternal grandmother was at work or that C.s babysitter ever served as the monitor for any visits. Mother testified that since July 2006, she had arranged her visits around the maternal grandmothers schedule as follows:

Q Now, from July to the present, your visitation is eight hours per week?

A Yes.

Q And how is that broken up; if it is?

A I do it at my moms convenience, because she works full‑time. So usually its like four hours on Saturday or Sunday. And then four hours one evening during the week.

The record does not show that the termination of the parents parental rights would deprive C. of a substantial, positive emotional attachment such that [C.] would be greatly harmed. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence supports the courts finding the parent‑child relationship exception was inapplicable.

DISPOSITION

The orders are affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1] SSAs addendum report, dated May 9, 2006, stated, it is not appropriate for [Mother] to reside in the home of [C.] and the [maternal grandmother], until she successfully participates in and completes a substance abuse program.

[2] The parents argue that the juvenile court exceeded its jurisdiction by holding a fractional hearing before summarily denying the parents petitions. Their argument is based on the juvenile court asking the parents counsel whether there was anything in addition to what you have provided the court, in the way of the written petitions, that you would like to provide the court or represent to the court, in order to bolster the case for having a hearing. The court discussed the contentions of the petitions and the permanency hearing report with counsel before concluding the petitions were insufficient to trigger a hearing. The record shows the court applied the correct legal standard in determining whether the petitions were sufficient to trigger a hearing under section 388. The juvenile court did not exceed its jurisdiction by asking counsel if they had any more to add to the petitions before it concluded they were insufficient.

[3] In In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, the appellate court acknowledged that courts have routinely applied the substantial evidence test to the juvenile courts finding under section 366.26, subdivision (c)(1)(A). The appellate court in In re Jasmine stated that the abuse of discretion standard is a more appropriate standard even though [t]he practical differences between the two standards of review are not significant. (Ibid.) Under either standard, however, the parents argument fails for the same reasons.