In re Katherine M.

Filed 1/22/07  In re Katherine M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEALS from judgments and an order of the Superior Court of San Diego County, Richard D. Huffman, Judge.  (Associate Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.)  Affirmed.

            Marco M. and Josefina M. appeal judgments terminating their parental rights to their children Katherine M. and R.M.  Josefina also appeals an order denying her petition under Welfare and Institutions Code section 388.^[1]  Josefina asserts the court abused its discretion by denying her section 388 petition because the evidence showed she had completed reunification services in Tijuana, Mexico, and was able to care for the children.  Marco contends the court erred in terminating parental rights because the evidence showed he and the children had beneficial parent-child relationships and the court should have ordered a permanent plan of legal guardianship or long-term foster care.  Josefina joins Marco's argument.  Marco joins Josefina's argument the court erred in terminating her parental rights.  We affirm the judgments and order.

FACTUAL AND PROCEDURAL BACKGROUND

            On June 25, 2003, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Katherine M. under section 300, subdivision (b), alleging she was at risk of serious harm because Josefina tested positive for methamphetamine at Katherine's birth, admitted having a history of drug use and using drugs during her pregnancy, and Marco denied knowing she was using drugs.  Josefina said she used methamphetamine four times while she was pregnant.  She and Marco said he did not use drugs.  The court detained Katherine out of the home.

            Both parents minimized their drug use.  Marco said he used only marijuana and alcohol, but he tested positive for methamphetamine.  His former employer said he had left the company's employment because of his drug use and problems with police.  There was an outstanding warrant for his arrest.  He admitted, then denied, being involved in domestic violence.

            The parents submitted to the petition on the basis of the social worker's reports.  The court found the allegations true and declared Katherine a dependent child.  She was placed with her maternal aunt (the aunt).  The court ordered the parents to participate in their reunification plans, which included the Substance Abuse Recovery Management System Program (SARMS).

            For the February 2, 2004 six-month review hearing the social worker reported Josefina had positive drug tests and was discharged from out-patient drug treatment, then entered residential treatment, began having visits with Katherine and was making progress.  She was five months pregnant with Marco's child.  Marco was not participating in services.  The court continued services for Josefina, but ordered Marco's services terminated.

            By July 2004, Josefina had completed residential treatment and was in an after-care program.  Marco had been incarcerated, but was released just before the 12-month hearing.  He said he had been drug free and wanted to participate in services.  At the      12-month hearing on July 28, the court ordered him to enroll in the SARMS program and continued reunification services.

            For the December 13, 2004 18-month hearing the social worker reported Katherine had been placed with Josefina and they lived with other relatives and Katherine's baby brother, R.M.  Marco was participating in services.  The court granted Josefina physical and legal custody of Katherine, granted Marco visitation as arranged by the parents and terminated jurisdiction.

            But on May 23, 2005, the Agency petitioned on Katherine's and R.'s behalf under section 300, subdivisions (b) and (g), alleging the parents had been arrested for burglary, Josefina had been arrested for drug possession two weeks earlier, the parents had a history of substance abuse and they were incarcerated.  The social worker said Josefina and Marco were arrested at gunpoint with the children in the car.  They were both undocumented immigrants and faced possible deportation.  Josefina was released from custody on June 2, 2005.  On July 9, she was arrested for petty theft.  The children were detained with the aunt.

            The parents submitted to the court's jurisdiction, the court found the allegations true and declared the children dependents of the court.

            In June 2005 the court ordered Josefina to reenroll in SARMS.  In September it ordered her arrested for failing to enter the program.  In November, she was deported to Mexico.

            At the six-month review hearing on February 6, 2006, the court terminated services and set a section 366.26 hearing.

            The social worker assessed Katherine and R. as adoptable.  She said they were bonded to the aunt and she was interested in adopting them.  In addition 18 other families were willing to adopt two children like Katherine and R. together.  The children had not seen the parents since they were arrested in May 2005.

            On June 20, 2006, Josefina filed a section 388 petition asking that the children be placed with her.  She alleged she had been clean and sober for more than one year, had attended therapy, counseling, and parenting instruction in Mexico and maintained consistent telephone contact with the children.  She attached receipts showing her attendance at therapy, negative drug tests, her diary, and a letter attesting to her attendance at parenting classes and counseling.

            The social worker reported that at Marco's request she had arranged for him to have visits with the children beginning in June 2006 after he was released from prison.  She said Josefina had maintained somewhat continuous telephone contact with the children.  The social worker opined the children did not have a parent-child relationship with Josefina, but were bonded to the aunt.

            On July 21, 2006, Marco filed a section 388 petition requesting custody or, alternatively, continued services.  The court denied his petition without a hearing.

            At the July 31, 2006 hearing on Josefina's section 388 petition Josefina testified she lived with relatives in Tijuana and was employed.  She had completed services in Tijuana and said she had been sober for one year.  Her services had included nine sessions with a psychologist.  She had stopped attending AA/NA after becoming employed.  She said she spoke to the children by telephone every week, but had not seen them for one year.

            A great aunt testified the children should stay with the aunt because although Josefina had participated in services, " she didn't learn anything."

            Josefina's therapist testified she had worked with Josefina on her substance abuse problem.  She said Josefina had gained insight through therapy and tested negative for drug use.  She characterized Josefina's addiction as " mild," but said Josefina did not tell her she used drugs when she was pregnant with Katherine.

            The social worker testified she had not talked with Josefina, but understood she was participating in services in Tijuana, had had clean drug tests, and began calling the children about once each week after she became employed.

            Based on the testimony and the documentary evidence, the court denied Josefina's section 388 petition, finding she had shown changed circumstances, but not that the requested change of orders would be in the children's best interests.  The court then found the children were adoptable and the exceptions to adoption of section 366.26, subdivision (c)(1) were not present.  The court terminated parental rights.

DISCUSSION

I

            Josefina contends the court abused its discretion by denying her section 388 petition.  She argues she completed reunification services in Tijuana and was now able to care for her children, and the record shows the modification she requested was in their best interests.

            Section 388 provides in part:

" (a) Any parent or other person having an interest in a child who is a  dependent child of the juvenile court  .  .  .  may, upon grounds of change of circumstances 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.  .  .  .  [¶]  .  .  .  [¶]

" (c) If it appears that the best interests of the child may be promoted by the proposed change of order  .  .  .  the court shall order that a hearing be held  .  .  .  ."

            In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests.  (§  388; Cal. Rules of Court, rule 5.570(a)(7);^[2] In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)  " It is not enough for the parent to show just a genuine change of circumstances under the statute[, t]he parent must [also] show that the undoing of the prior order would be in the best interests of the child."   (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)  A petition is liberally construed in favor of its sufficiency.  (In  re Angel B. (2002) 97 Cal.App.4th 454, 461.)  The petitioner bears the burden of proof, however, to make both showings.  (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)  A reviewing court will not disturb a court's ruling in a dependency proceeding "   '  .  .  .  " unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."   '  "   (Id. at p. 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

            As the court found, Josefina showed changed circumstances, but she did not show the proposed modification of the previous order was in the children's best interests.  In In  re Kimberly F. (1997) 56 Cal.App.4th 519, the appellate court listed three factors a court might consider when determining if a child's best interests would be served by granting a section 388 petition:  (1) the seriousness of the problem that led to the dependency and the reason for any continuation of the problem; (2) the strength of the bond between the child and the caretaker; and (3) the degree to which the problem may be removed and the degree to which it has been removed.  (Id. at p. 532.)

            Consideration of these factors leads us to conclude the court did not err in finding that granting the petition would not serve the children's best interests.  As to the first and third factors, we note Katherine was removed from the parents at birth because Josefina used methamphetamine during her pregnancy.  Josefina then participated in her case plan, was reunited with Katherine and the court terminated jurisdiction.  The second dependency began after Josefina and Marco were arrested for burglary, and Josefina was arrested for possessing drugs.  Josefina's credibility came into question throughout the case.  Although, she had claimed she was only experimenting with drugs and Marco did not use them, she told her therapist they used drugs together and that she began using them when she was 19 years old.  During therapy sessions, she blamed Marco for problems and did not tell the therapist that Katherine had been born with a positive test for methamphetamine.  She denied there was domestic violence in her relationship with Marco, then told her therapist they were involved in domestic violence.  She denied participating in the burglary, then admitted it, and, when she was arrested for drug possession, said the drugs were not hers although Marco said they were found in her purse.  Josefina's drug addiction was long standing, but she said she had stopped attending NA/AA meetings.  The fact that she had participated in services in Mexico for a few months was insufficient to show she could stay away from drugs and a criminal life style for the long term in order to be a safe parent to the children.

            As to the strength of the children's bonds with Josefina, in comparison to their bonds with the aunt, the children had lived with the aunt all of their lives.  Katherine was placed with her at birth and when Josefina reunited with Katherine, they lived together with the aunt.  R. lived with Josefina and Katherine in the aunt's home until the time of the second petition.  Then Josefina did not see the children again for about one year.  Josefina did not present evidence that the children were bonded to her, rather than to the aunt.  She has not shown that granting her petition would be in the children's best interests or that the court abused its discretion in denying her section 388 petition.

II

            Marco asserts the court erred in terminating his parental rights because the evidence showed he had a beneficial parent-child relationship with the children that outweighed the benefits of adoption.  He argues when he was released from prison in June 2006, he immediately began regular visits, he had paid child support and, under the circumstances, the court should have ordered a permanent plan of guardianship or long-term foster care.

            Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that a child is adoptable, it will terminate parental rights unless it finds termination would be detrimental because of one of five exceptions listed in section 366.26, subdivision (c)(1).  Adoption is the permanent plan favored by the Legislature.  (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)  If a child is found to be adoptable it becomes the parents' burden to show termination of parental rights would be detrimental because one of the specified exceptions of section 366.26, subdivision (c)(1) exists.  (In  re Autumn H. at p.  574.)  Under the exception in subdivision (c)(1)(A), the parent must show termination would be detrimental in that " [t]he parents .  .  . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."   In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted " [c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the exception of section 366.26, subdivision (c)(1)(A)]."

            " The [section 366.26, subdivision (c)(1)(A)] 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 child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between the parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond."   (In  re Autumn H., supra, 27 Cal.App.4th at pp.  575-576.)  In reviewing whether sufficient evidence supports the trial court's finding the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.  (Id. at p.  576.)

            In In re Autumn H., supra, 27 Cal.App.4th, at pages 575-577, this court found substantial evidence to support an order terminating parental rights.  This 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."   (Id. at p. 575.)

            Marco did not show that he maintained regular and consistent visitation with the children.  During the first part of Katherine's dependency he did not visit her on a regular basis.  He was later incarcerated for eight months and did not see her.  When he was released he visited Katherine twice each week.  When the court terminated jurisdiction, visitation was to be arranged by the parents.  After Marco's arrest for burglary he was incarcerated and did not see the children again until his release.  For much of the children's young lives, Marco had not had contact with them on a regular basis.

            He also did not show a beneficial parent-child relationship that would outweigh the benefits of adoption.  Although he and the children had pleasant visits between December 2004 and May 2005 and in June and July 2006, he did not fulfill a parental role.  The social worker opined the children did not recognize him as their father.  Marco did not present any evidence to show a parent-child relationship or that terminating parental rights would be detrimental to the children.

            Marco argues the children's best interests would have been better served by a plan of guardianship or long-term foster care, thus giving them the stability of a home with the aunt, but allowing him to maintain his relationship with them.

            However, substantial evidence supported the court's finding that adoption would be in the children's interests.  Marco did not show that he and the children shared parent-child relationships and there was no evidence that continuing the relationship would benefit them.  At the time of the section 366.26 hearing, if the court has found a child is adoptable, it must select adoption as the permanent plan unless one of the five statutory exceptions of section 366.26, subdivision (c)(1)(A)-(E) applies.  The court did not err in ordering adoption as the permanent plan.

DISPOSITION

            The judgments and order are affirmed.

McCONNELL, P. J.

WE CONCUR:

                                          BENKE, J.

                                McDONALD, J.

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

^[2]           Former rule 1432, renumbered rule 5.570, effective January 1, 2007.