In re Madison I.

Filed 9/7/07 In re Madison I. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment and order of the Superior Court of San Diego County, Carol Isackson, Judge. Affirmed.

B.T. appeals a judgment of the juvenile court terminating her parental rights to her minor daughter, Madison I., under Welfare and Institutions Code section 366.26.^[1] B.T. contends the court erred by denying her section 388 petition for modification seeking

either return of Madison to her care with services, or alternatively, for additional services. She also challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. Madison's father, Jordan I., joins in B.T.'s arguments. We affirm the judgment and order.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2005 nine-month-old Madison became a dependent of the juvenile court under section 300, subdivision (b) and was removed from parental custody based on findings that B.T. did not provide Madison with a suitable home. A search of B.T.'s home revealed that drug paraphernalia and items with drug residue were accessible to Madison. Drug sales also took place in the home. B.T. admitted to social workers she had a long history of drug abuse and used narcotics once every two weeks.

During the next six months, B.T. and Madison's alleged father, Jordan, did not regularly participate in services and B.T. had been discharged from the Substance Abuse and Recovery Management Systems program for noncompliance. B.T.'s visits with Madison initially were unsupervised but social workers recommended the visits become supervised because of B.T.'s lack of progress with services and drug treatment. At the contested six-month review hearing, the court found the parents had not made progress with their case plans and terminated reunification services. The court set a section 366.26 selection and implementation hearing.

The social worker prepared an assessment report stating B.T. continued to have supervised visits with Madison on a weekly basis. The visits went well and B.T. was appropriate and attentive to Madison's needs. At the end of the visits, however, Madison did not show signs of anxiety or distress and instead reached out to her foster mother. The social worker assessed Madison as adoptable based on her good health, young age and lack of developmental problems. Madison had lived with her caregivers for eight months and looked to them for her physical and emotional needs. She was bonded to her caregivers and called her foster parents "mama" and "dada."

The social worker opined Madison did not have a parent-child relationship with Jordan. During the dependency period, Jordan made very little contact with Madison. When he did visit Madison, he did not show a great deal of attentiveness toward her. Further, Jordan did not complete any reunification services and he never participated in therapy sessions.

In February 2007 B.T. filed a section 388 petition for modification, seeking to have Madison returned to her along with additional services or, alternatively, for more reunification services. In support of her petition, she alleged she completed a parenting class, was enrolled in a drug rehabilitation program, was testing clean and regularly visited with Madison. B.T. asserted it would be in Madison's best interests to be placed with her because they are bonded and Madison would have the opportunity to be raised by her biological family.

The court held a section 388 evidentiary hearing to address B.T.'s petition. Ms. Asensio, B.T.'s counselor, testified she met with B.T. a couple of times a week. She believed B.T. was doing incredibly well in the program. B.T. had been living in a sober living facility for a couple of weeks and the facility allowed children to live with their parents.

B.T. testified she was enrolled in a drug rehabilitation program and attended drug court every other week. She had been drug free for six months and submitted to random drug tests once a week. B.T. admitted that six months before, she had taken medication commonly used for panic attacks. She claimed she got the medication from a friend. B.T. had yet to secure permanent employment but was actively looking and applying for jobs. Concerning services, B.T. completed a parenting class and was actively participating in a 12-step program. She recently completed the third step. B.T. hoped the court would authorize placement of Madison in her custody so that they could live together at the sober living facility. B.T. continued to have supervised visits with Madison once a week and their visits went well. Madison did not have difficulty separating from her at the end of the visits.

After considering evidence and hearing arguments, the court found circumstances had not changed and B.T. had not met her burden of showing the requested modification was in Madison's best interests. The court found Madison had been in her current placement for 14 months and needed stability and security. The court denied the section 388 petition. As to the issues for the selection and implementation hearing, the court found Madison was likely to be adopted and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred Madison for adoptive placement.

DISCUSSION

I

B.T. contends the court erred by denying her section 388 modification petition to have Madison returned to her with services, or alternatively, further reunification services. She asserts her circumstances had changed and granting the petition was in Madison's best interests because they were bonded and Madison could be raised by her biological family.

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, there is a change in circumstances or new evidence, and 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 Casey D. (1999) 70 Cal.App.4th 38, 47.) 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 may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.)

When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M.,supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity

" 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.) Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interest of the child." (Ibid.)

B

The court found B.T.'s circumstances had changed. Thus, we examine only whether the court abused its discretion by denying her section 388 petition because it would not be in Madison's best interests to be returned to B.T. or for B.T. to receive additional services. After termination of reunification services, the focus of dependency proceedings is to provide the child with permanency and stability. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256; In re Marilyn H. (1993) 5 Cal.4th 295, 310.) At the time of the hearing on the section 388 petition, Madison had been a dependent for more than half of her life. The problems that led to the dependency were serious. B.T. had abused methamphetamines for many years, suffered numerous relapses and she lived a dangerous lifestyle. As a result, she exposed Madison to drugs, drug paraphernalia and an overall unclean environment. Even though at one point in the proceedings B.T. received unsupervised visits with Madison, she lost that privilege and visits have remained supervised since then. B.T. admittedly has made progress with drug rehabilitation, is testing clean, and transitioned into a sober living facility a couple of weeks before the hearing. B.T., however, had yet to experience living on her own or show she could create a stable home for Madison without the benefits and support of a structured environment. Although B.T. had appropriate visits with Madison, their relationship did not outweigh the stable and long-term relationship Madison had with the caregivers she called "mama" and "dada." It was not in Madison's best interests to postpone implementing a permanent plan of adoption. The court acted within its discretion by denying B.T.'s section 388 modification petition.

II

B.T. challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts she regularly visited Madison, who shared a close bond with her and would benefit from continuing the relationship.

A

We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even

if there is substantial evidence supporting a contrary conclusion. (Ibid;In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. ( 366. 26, subd. (c)(1)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if termination of parental rights 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." We have interpreted the phrase "'benefit from continuing the relationship'" to refer to a "parent[-]child" relationship that " 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 parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) " In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Jordan did not regularly visit Madison or have a parent-child relationship with Madison. B.T. regularly visited Madison but she did not meet her burden of showing her relationship with Madison was sufficiently beneficial to outweigh the benefits of adoption. Madison had lived out of B.T.'s custody for 14 months. Supervised visits between B.T. and Madison went well, but Madison did not have difficulty separating from her when visits ended. In the social worker's opinion, Madison did not view B.T. as a parental figure and had no beneficial parent-child relationship with her. Rather, Madison displayed distress when separated from her caregiver. Madison's emotional, physical and psychological needs were met by her caregivers. There was no evidence of a "significant, positive, emotional attachment" from Madison to B.T. such that terminating the parent-child relationship would result in great detriment to them. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Madison, whose needs B.T. could not meet, deserves to have her custody status promptly resolved and her placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.

DISPOSITION

The judgment and order are affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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