In re M.N.

Filed 4/12/07 In re M.N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Gary Bubis, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed in part; dismissed in part.

Cassandra P., the mother of M.N. (M.), appeals the judgment terminating her parental rights under Welfare and Institutions Code^[1]section 366.26. Cassandra contends the juvenile court erred by denying a hearing on her section 388 petition and by terminating her parental rights without first making a finding that the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.) did not apply. Cassandra also contends the court erred by not applying the beneficial parent-child relationship exception to adoption ( 366.26, subd. (c)(1)(A)).

FACTUAL BACKGROUND

In August 2005 the San Diego County Health and Human Services Agency (Agency) took newborn M. into protective custody because Cassandra had a history of using methamphetamine, and was not participating in drug treatment and other services in connection with the ongoing dependency case of M.'s half-sibling, T.P. (T.) Three months earlier, Agency had filed a dependency petition on behalf of T., then one year old, alleging that he was at substantial risk of suffering serious physical harm inflicted non-accidentally ( 300, subd. (a)), and that Cassandra was unable to provide regular care because of her substance abuse ( 300, subd. (b)). Among other things, T. had been exposed to violent confrontations in the family home.

On August 31 Agency filed a dependency petition on behalf of M., under section 300, subdivision (b). The court detained M. in out-of-home care and granted Cassandra supervised visitation. Cassandra visited M. every Monday. Cassandra enrolled in the Substance Abuse Recovery Management System (SARMS). Cassandra was in compliance with her drug treatment program until the third week of September when she had two or three unexcused absences. In mid-September, Cassandra telephoned the social worker and said she was "messing around" and needed inpatient treatment.

On September 22 the court sustained the petition, declared M. a dependent child, removed her from Cassandra's custody, and placed her in licensed foster care. The court granted the social worker discretion to allow unsupervised and overnight visits and a 60-day trial visit. The court ordered Cassandra to comply with her case plan, which required her to complete a 52-week domestic violence treatment program, participate in individual counseling, undergo a psychological evaluation, complete a parenting education course, enroll in an appropriate drug treatment program deemed acceptable by SARMS, and undergo random drug testing.

In October and November, Cassandra was arrested for vehicle theft. On January 17, 2006, Cassandra pled guilty to two counts of vehicle theft.

On January 22 Eric N., the alleged father of M., completed a paternity inquiry form, in which he indicated he possibly had Indian ancestry.^[2]

In the status review report for the upcoming six-month review hearing, the social worker noted Cassandra had been incarcerated during much of the reported period and had not completed any of her reunification services. Cassandra regularly visited M. unless she was in jail. Agency recommended that Cassandra's services be terminated at the six-month review hearing.

On May 17 the court terminated Cassandra's reunification services and set a section 366.26 hearing.

At a special hearing on May 26, the court ordered Agency to notice the Kumeyaay tribe and the Bureau of Indian Affairs to determine if M. was an Indian child under ICWA.

Paternity test results showed Eric was the biological father of M.

During May and June Cassandra quit two inpatient drug treatment programs on three occasions. Cassandra admitted she had relapsed and used methamphetamine. Also in June, Cassandra's therapist notified the social worker that if Cassandra did not attend her next appointment, the therapist would terminate the therapy sessions.

In July Cassandra's parental rights to T. were terminated. T. was in a relative placement; the caregivers wanted to adopt him. A month earlier, M. had been placed in the same home. The caregivers also wanted to adopt M. if Cassandra's parental rights were terminated.

Cassandra was arrested on August 9 on an outstanding warrant.

The social worker assessed M. as likely to be adopted based on her young age, good health and normal development. In addition to M.'s caregivers who wanted to adopt her, there were 50 approved adoptive families who were willing to adopt a child with M.'s characteristics and 17 approved adoptive families who were willing to adopt a sibling set with characteristics of T. and M.

The social worker noted that M. had never lived with Cassandra. M. did not look to Cassandra as her primary caregiver who provided her daily needs. Cassandra's relationship with M. was not a primary parental relationship. The social worker opined that Cassandra's relationship with M. did not outweigh the stability and permanency that adoption would provide. According to the social worker, termination of Cassandra's parental rights and a permanent plan of adoption was in M.'s best interests.

The social worker acknowledged that throughout M.'s dependency, Cassandra had consistently visited her daughter except while incarcerated. Cassandra brought food to the visits, arrived on time or early, and appeared to be thrilled to visit M. However, three visits in September and October were problematic.

Before the start of the contested section 366.26 hearing on October 19, Cassandra's counsel filed a section 388 petition seeking placement of M. with her at the KIVA inpatient drug treatment program or, in the alternative, additional reunification services. As changed circumstances, the petition alleged that Cassandra had completed the "Family Ties" program, a six-week comprehensive course that covered parenting, substance abuse and domestic violence. Cassandra also had completed a 10-hour reunification class and a three-week domestic violence class. Cassandra was scheduled to transfer to KIVA in October; the program would allow M. to live there with Cassandra. As to M.'s best interests, the petition noted that Cassandra was no longer incarcerated and could provide care and a safe home for M. at KIVA.

The court denied the section 388 petition without an evidentiary hearing, noting Cassandra had not made a prima facie showing that her circumstances had changed and that it would be in M.'s best interest to grant the petition. The court stated:

"[T]his case did come in over a year ago. So with regard to requesting more time we are almost at the official 12-month date had there been a 12-month review hearing. I would note that the mother has been involved in the system on other siblings. One of the other siblings, in fact, was adopted. She has been involved in the dependency system since May of 2004. She just started [KIVA].

"I would note that the record reflects that she has walked away from [KIVA] on more than one occasion. She has not complied with her case plan. She has a long history of drug use. She has really had no out-of-custody clean time where she was involved actively in a program, and there is nothing to indicate there is a change of circumstance whatsoever.

"I mean, I think a good start is probably the best way that that can be characterized. There is nothing to indicate it would be in the best interests at this point in time either because the Legislature is clear about finding permanence for these children if these parents do not reunify in the statutory time period."

The court found the ICWA notices that Agency mailed were appropriate, but did not make a finding about the applicability of ICWA to the case because the law requires a 60-day waiting period for the tribes and the BIA to respond. (See former Cal. Rules of Court, rule 5.466 (f)(6).)^[3]The court deferred its ruling on the applicability of ICWA until November 15.

Proceeding to the section 366.26 hearing, the court heard testimony from Cassandra that she was arrested on August 9 because she left KIVA. Cassandra said she left KIVA at that time because she was upset after the court had terminated her services in T.'s case. The criminal court gave Cassandra the option to stay in jail for one month or return to KIVA for six months. Cassandra chose the KIVA option because she wanted to reunify with M. Since her arrest, Cassandra had two visits with M. at the Las Colinas detention facility. Cassandra's last visit with M. was on September 29. Cassandra entered KIVA on October 13 and planned to stay there. During July, when Cassandra was not in custody, she had four visits with M.

The court found M. was likely to be adopted if parental rights were terminated and none of the statutory exceptions to adoption applied. The court terminated Cassandra's parental rights and referred M. to Agency for adoptive placement.

DISCUSSION

I.

Juvenile Court Did Not Err by Denying Section 388 Evidentiary Hearing

Cassandra contends the juvenile court abused its discretion by denying an evidentiary hearing on her section 388 petition because she made a prima facie showing that her circumstances had changed and that it was in M.'s best interests to grant the petition. The contention is without merit.

Section 388 provides that a parent may petition the court for a hearing to change, modify or set aside any previously made order of the court on the grounds of changed circumstances or new evidence. ( 388, subd. (a).) The petition must allege why the requested change is "in the best interest of the dependent child." ( 388, subd. (b).) Section 388 goes on to state: "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 . . . ." ( 388, subd. (c).)

However, if the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. (Rule 5.570(b); In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323.) The parent must make a prima facie showing to trigger the right to a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) "A 'prima facie' showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (In re Edward H. (1996) 43 Cal.App.4th 584, 593; see also In re Daijah T. (2000) 83 Cal.App.4th 666, 673.)

The petitioner's burden also includes making a prima facie showing that the requested change would promote the best interests of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Elizabeth M., supra, 52 Cal.App.4th at pp. 322-323.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

We review a summary denial of a section 388 petition for abuse of discretion. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 806.)

Cassandra alleged as changed circumstances that she had completed the "Family Ties" program, a six-week comprehensive course that covered parenting, substance abuse and domestic violence. Cassandra also had completed a 10-hour reunification class and a three-week domestic violence class. Cassandra was scheduled to transfer to KIVA in October; the program would allow M. to live there with Cassandra. As to M.'s best interests, the petition alleged that Cassandra was no longer incarcerated and could provide care and a safe home for M. at KIVA. These developments, as positive as they were, did not constitute changed circumstances; at most, they showed "changing circumstances" regarding Cassandra's ability to remain drug free and law-abiding, and to parent a child. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

In In re Casey D., supra, 70 Cal.App.4th 38, 47-49, this court distinguished between changed and changing circumstances where a mother had been in a drug rehabilitation program for a few months before filing a section 388 petition shortly before a section 366.26 hearing. The trial court denied the petition, finding the mother was trying to rehabilitate, but had not shown changed circumstances. We affirmed, stating the parent must show the circumstances had changed, not that they are merely changing.

Cassandra's participation in services while she was incarcerated was commendable, but it did not establish changed circumstances. Cassandra's substance abuse and her propensity to become entangled in domestic violence situations were longstanding problems. To assume such problems can be effectively eliminated in a six-week program is unrealistic. "It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform." (In re Kimberly F. (1993) 56 Cal.App.4th 519, 531, fn. 9.) As the juvenile court noted, during the dependency Cassandra had not had a significant period of sobriety except for the time she was in custody. Also, Cassandra previously had walked away from KIVA on more than one occasion. Moreover, Cassandra's case plan called for her to complete a 52-week domestic violence course; a six-week course followed by a three-week course is only a start toward satisfying the requirement. Cassandra had not made a prima facie showing of changed circumstances within the meaning of section 388.

Nor did Cassandra's section 388 petition establish a prima facie showing that granting the petition would be in the best interests of M. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) It is more difficult to show that granting a section 388 petition is in the child's best interests when the changing circumstances take place after reunification services have been terminated; at this time, the child's need for a permanent, stable home is paramount. Consequently, the balancing of the parent's rights versus the child's rights shifts, and the child's interest in a stable, permanent home outweighs the parent's interest in reunification. (See In re Jasmon O. (1994) 8 Cal.4th 398, 420; In re Casey D., supra, at p. 47.)

Cassandra did not show that it would be in M.'s best interests for the court to place the child with her at KIVA or to order additional services. Such a course of action would have delayed permanency and stability for a child who had been in foster care her entire life. M. was bonding with her foster parents, who wanted to adopt her and T. M. has never lived with Cassandra; the child's only contact with her mother had been supervised visits. One-year-old M. was in desperate need of a permanent home and family. "Childhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.)

Cassandra relies on In re Aljamie D. (2000) 84 Cal.App.4th 424, 432, in which the appellate court reversed a summary denial of a mother's section 388 petition. The reliance is misplaced; that case is readily distinguishable. In In re Aljamie D., supra, the mother had two years of documented sobriety, had completed her entire case plan, had regularly visited her children and had unsupervised visitation and, having lived with her children, had a parent-child relationship with them. (Id. at pp. 427-428.) The mother's children wanted to live with her. (Id. at p. 428.) Here, Cassandra had not established a record of sobriety outside the time she was in custody, had not completed her case plan, continued to have supervised visits, had never lived with M., and was not bonded with the child.

The juvenile court did not abuse its discretion by denying Cassandra an evidentiary hearing on her section 388 petition.

II.

Failure to Make ICWA Finding Before Terminating Parental Rights is Moot

Cassandra contends the juvenile court committed reversible error by not ruling on the applicability of ICWA to the case before terminating her parental rights. We find the issue is moot.

Agency provided the court with copies of the ICWA notices and the return receipts indicating the BIA received the notice on August 11, 2006; the Sycuan Band of Kumeyaay Nation received the notice on August 9, 2006; and the Ewiiaapaayp Band of Kumeyaay Indians received the notice on September 11, 2006. The court found the notices were proper.

At the contested section 366.26 hearing on October 19, 2006, the court recognized that it could not rule on the applicability of ICWA because 60 days had not passed since

one of the Kumeyaay tribes had received notice.^[4] The court postponed its ruling on the ICWA issue until November 15, when the 60-day period would have elapsed. Nonetheless, the court went ahead with the section 366.26 hearing and terminated Cassandra's parental rights.

Agency asks us to augment the record on appeal with a copy of the court minute order for November 15, 2006, which shows the court found ICWA did not apply to the case. Construing the augmentation motion as a motion to take judicial notice of the November 15, 2006 minute order, we grant the motion. (Evid. Code,  452, subd. (d) & 459, subd. (a).)^[5] The minute order establishes that the assignment of error is moot. We therefore dismiss this portion of Cassandra's appeal.

III.

Beneficial Parent-Child Relationship Exception to Adoption Did Not Apply

Cassandra contends the juvenile court erred by finding the beneficial parent-child relationship exception to adoption ( 366.26, subd. (c)(1)(A)) did not apply. The contention is without merit.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception applies. ( 366.26, subd. (c)(1).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345;  366.26, subd. (c)(1).)

The beneficial parent-child relationship exception is codified in section 366.26, subdivision (c)(1)(A), which provides that after the court finds the child is likely to be adopted, the court shall not terminate parental rights if it finds 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." The exception applies only if both prongs are met.

Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts favorably to the prevailing party, and drawing all legitimate inferences to uphold the lower court's ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Agency implicitly acknowledges that Cassandra had maintained regular visitation, and does not argue that she did not satisfy the first prong of section 366.26, subdivision (c)(1)(A).

At issue, therefore, is whether Cassandra satisfied the second prong of the statute namely, whether M. would benefit from continuing her legal relationship with Cassandra. To establish a beneficial parent-child relationship, the parent must show more than frequent and loving contact, an emotional bond with the child, pleasant visits, or incidental benefit to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M., supra, 52 Cal.App.4th at p. 324.) "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In In re Autumn H., supra, 27 Cal.App.4th at page 575, we explained that to come within the beneficial parent-child relationship exception to adoption, a parent must show 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." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) The court's balancing test must be performed on a case-by-case basis, taking into account variables such as "[t]he 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 parent and child and the child's particular needs . . . ." (Id. at pp. 575-576.) We affirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist." (In re Casey D., supra, 70 Cal.App.4th at p. 51, italics added.)

Substantial evidence supported the court's finding that the parent-child beneficial relationship exception to adoption did not apply. One-year-old M. had never lived with Cassandra and only knew her through Cassandra's supervised visits. M. did not look to Cassandra as her primary caregiver who provided her daily needs. The social worker opined (1) Cassandra did not have a beneficial parent-child relationship with M., (2) continuing their relationship did not outweigh the stability and permanency that adoption would provide, and (3) termination of Cassandra's parental rights and a permanent plan of adoption were in M.'s best interests. The juvenile court was entitled to accept the social worker's expert opinion and rely on it. (In re Casey D., supra, 70 Cal.App.4th at p. 53.)

The relationship between Cassandra and M. was not a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). Cassandra, who had never fulfilled a parental role for M. did not meet her burden of showing her relationship with M. was sufficiently strong that the child would suffer detriment from its termination. The loss of "frequent and loving" contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)

Further, Cassandra also failed to show her relationship with M. promoted her well-being to such a degree that it outweighed the well-being the child would gain in a permanent home with new, adoptive parents.

Where, as here, the biological parent does not fulfill the parental role, "the child should be given every opportunity to bond with an individual who will assume the role of parent. . . . To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)

The evidence here is sufficient to support the finding that the section 366.26, subdivision (c)(1)(A) exception did not apply.

DISPOSITION

The portion of the appeal dealing with the ICWA issue is dismissed as moot. The judgment and order summarily denying Cassandra's section 388 petition are affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

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

^[2] Eric is not a party to this appeal. His participation in the dependency case was minimal, and he will be mentioned only when relevant to this appeal.

^[3] All rule references are to the California Rules of Court.

^[4] Former rule 1439(f)(6), which was in effect at the time of the contested section 366.26 hearing, provided that 60 days must pass with no response from a noticed Indian tribe before the juvenile court may determine that ICWA does not apply. (See original version of rule 5.664.) Effective February 23, 2007, rule 5.664 was amended to delete subdivision (f).) We need not decide whether the deletion of subdivision (f) is retroactive because we are dismissing this part of the appeal as moot.

^[5] It is unnecessary to comply with the provisions of Evidence Code sections 455, subdivision (a) and 459, subdivision (c) to provide the parties an opportunity to comment on the propriety of taking judicial notice because the parties had the opportunity to comment and did on Agency's augmentation motion.