In re D.M.
Filed 7/18/07 In re D.M. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
In re D. M., a Person Coming Under the Juvenile Court Law. | |
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. C. G., Defendant and Appellant. | C053890 (Super. Ct. No. JD220778) |
C. G., mother of the minor, appeals from orders of the juvenile court terminating her parental rights and denying her petition for modification. (Welf. & Inst. Code, 366.26, 388, 395 [further undesignated statutory references are to this code].) Appellant contends the court abused its discretion in denying her petition for modification. We affirm.
FACTS
The infant minor was removed from appellants custody in July 2004 due to appellants substance abuse and failure to comply with a family maintenance agreement. The juvenile court adopted a reunification plan which included substance abuse treatment, counseling on various issues including anger management and domestic violence, parenting classes and drug testing. Appellant failed to reunify with the minor and, in February 2005, the juvenile court set a section 366.26 hearing.
In July 2005, the court set a contested section 366.26 hearing and denied a request for a bonding assessment. The department recommended a permanent plan of adoption by the current caretaker.
Appellant filed her first petition for modification in August 2005 alleging that, after her recent release from custody, she entered a residential treatment facility and was doing well. At the hearing on the petition, she testified she did not feel she had a substance abuse problem. The juvenile court denied the petition for modification in November 2006 and continued the section 366.26 hearing. This court affirmed the order in an unpublished decision in case No. C051213 (7-31-06).
The section 366.26 hearing commenced in January 2006 with brief testimony from appellant but was again continued to allow a bonding study to be performed. The bonding study was filed with the court in May 2006 and concluded the minor had a strong bond with the foster parent but a superficial and insignificant bond with appellant. The study further concluded that while it would be detrimental to the minor to remove her from the foster home, there would be no long-term detriment in discontinuing contact between the minor and appellant.
Appellant filed a second petition for modification in July 2006 seeking reinstatement of reunification services. The petition alleged that appellant had maintained stability, was employed, in school and visiting the minor regularly. The petition further alleged that allowing appellant to have a relationship with the minor was in the minors best interests.
At the combined hearing on the petition for modification and selection and implementation of a permanent plan for the minor, appellant testified she had been law-abiding since she was released from custody in May 2005. Appellant also testified she had been employed as a caregiver for almost a year and shared a home with her brother. Appellant further testified she was working on her GED, had continued with counseling and visited the minor regularly. She believed the minor recognized her as her mother and came to her readily at visits. Appellant admitted she had made mistakes during the case but wanted a chance to prove she could reunify with the minor.
The court explained that the focus at this point in the proceedings had to be on the minor who had spent most of the last two years in the same foster home where she had permanence. The court denied the petition for modification finding appellant had not shown sufficient change to make it in the minors best interests to reinstate services for appellant.
DISCUSSION
Appellant contends the court abused its discretion in denying her second petition for modification.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.[1]
The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.] (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parents interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Contrary to the juvenile courts conclusion, we believe appellant did present evidence of changed circumstances in that she had established a residence and employment for almost a year, had not been arrested for criminal behavior, was continuing to attend and benefit from group therapy and had taken active steps to pursue her education. These facts all show an increased sense of responsibility and willingness to be accountable for her actions and thus a change in appellants circumstances. However, appellants evidence did not show it was in the minors best interests to re-open reunification services and destabilize the current level of permanence and stability the minor had achieved in her prospective adoptive home.
The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it. (In re Debra M. (1987) 189 Cal.App.3d. 1032, 1038; superseded on another issue.) Currently, the minor is bonded to and nurtured by the foster parents. Although appellant has worked to change her circumstances, she cannot meet the childs need for a secure and stable home, if for no other reason than that she would have to spend a significant period of time building the kind of relationship that has developed between the minor and the foster parents over almost two years of daily care. The requested modification would introduce an unnecessary element of uncertainty in the minors life when what the minor needs is stability. The juvenile court did not abuse its discretion in denying appellants petition for modification.
DISPOSITION
The orders of the juvenile court are affirmed.
BLEASE , Acting P. J.
We concur:
DAVIS , J.
MORRISON , J.
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[1] Section 388 provides, in part: Any parent . . . may, upon grounds of change of circumstance or new evidence, 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 the court previously made or to terminate the jurisdiction of the court. . . . [] If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held . . . .
