In re Samantha B.

Filed 4/30/07 In re Samantha B. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Pamela P. (Mother) and Loren B. (Father) (hereinafter collectively Parents) appeal a juvenile court order terminating their parental rights and finding their daughter, Samantha B., likely to be adopted (Welf. & Inst. Code,  366.26).^[1] Mother also contends the court erroneously denied her section 388 petition for modification. Parents contend the court erred in failing to apply the continued beneficial relationship exception to adoption ( 366.26, subd. (c)(1)(A).) We reject the contentions and affirm.

Background

In October 2002, Samantha (born in December 2000) was adjudged a dependent child of the court, but the dependency was vacated and the petition was dismissed in June 2003. In July 2003, the court sustained an amended section 300 dependency petition filed by the Contra Costa County Bureau of Children and Family Services (Bureau), after Mother left Samantha unattended in a car with the windows rolled up and Samantha had to be revived by police. In August 2003, Samantha was again adjudged a dependent child of the court and ordered to remain in Mothers custody, and visitation was ordered for Father. The Bureaus August 2004 status review report recommended vacating the dependency, dismissing the petition and terminating family maintenance services because Mother had followed through on her case plan.

In October 2004, the Bureau filed a section 387 supplemental petition to remove Samantha from placement with Mother, alleging Mother was in violation of her family maintenance case plan because Parents moved to a dangerous and unstable basement of a bar where they were residing with adults unknown to the Bureau, and the bars owner was pursuing eviction of the basements residents. Samantha was detained and placed with her maternal grandmother.

In December 2004, the Bureau filed an amended supplemental petition alleging Mother had: failed to drug test; not completed a parenting class, individual therapy, and a domestic violence program; and exercised questionable judgment in living in the bar basement. The petition alleged that Father had exercised questionable judgment by living in the bar basement and failed to complete any element of his family maintenance plan.

In January 2005, the Bureau filed a section 342 petition alleging that, in December 2004, Mother tested positive for methamphetamines and Father failed to submit to a December court ordered drug test. The court dismissed the section 387 supplemental petition, sustained the section 342 petition and ordered visitation and reunification services for Parents.

The Bureaus December 2005 status review report recommended termination of reunification services and setting of a section 366.26 hearing (.26 hearing) on the grounds that Mother had neither consistently drug tested nor successfully completed drug treatment, and Father had not started any component of his plan or contacted the Bureau. Moreover, there was lack of evidence that Parents had maintained sobriety. Parents continued to have twice monthly supervised visits with Samantha during which Parents interacted appropriately with her. On January 30, 2006, the court terminated reunification services for Parents and set a .26 hearing for May 4, 2006.

In April 2006, this court denied Mothers extraordinary writ petition under former California Rules of Court, rule 38.1 (now rule 8.452), in which she asserted that she had complied with her reunification plan and requested a continuation of reunification services.

Section 388 Petition

On May 2, 2006, Mother submitted a section 388 petition seeking Samanthas return to Mothers care and vacation or dismissal of the case; or an additional six months of family maintenance services. Mother alleged that since January 2006 she had complied with the conditions of her case plan at her own expense by attending domestic violence classes, individual therapy, and weekly AA/NA meetings and substance abuse classes. Mother also alleged that Samantha consistently asked to be returned to Mothers care, and severing their special bond would greatly traumatize Samantha. Mother also asserted that throughout the case, she had been consistent in her visits with Samantha and the visits had gone well.

Attached to the section 388 petition was a letter from Mothers psychotherapist stating Mother attended weekly sessions from mid-September to early December 2005 when her reunification services were terminated. In February 2006, Mother began psychotherapy again at her own expense. The letter stated that Mother does not appear to have any of the physical, emotional, or mental symptoms, or the social problems associated with chemical dependency, and had a part-time job and a pleasant two-bedroom apartment. The therapist recommended extended visits between Mother and Samantha so that Mothers parenting capacity could be more adequately evaluated by the Bureau. Also attached to the petition was a letter from Mothers substance abuse counselor stating that since January 17, 2006, Mother had been enrolled in two weekly group sessions and a monthly individual session. An April 27, 2006 progress report from Mothers domestic violence program noted that since October 2005, Mothers attendance was irregular and her progress on her service goals was satisfactory.

The Bureau opposed the section 388 petition, arguing that between mid-December 2004 and mid-May 2005, Mother failed to comply with the courts order to drug test, she failed to appear for 23 drug tests in 2005 and tested positive for Temazapem (a sleeping pill) in November 2005. The opposition also stated that between August and November 2005, Mother failed to attend substance abuse treatment sessions on 14 occasions, and had reentered the program three separate times. As to Samantha, the opposition stated that the maternal grandmother had provided Samantha loving care, while withstanding hostility from Mother by way of telephone threats and angry, accusatory mail. The opposition noted that on May 3, 2006, Samanthas therapist stated that Samantha loves Mother but is very happy with her maternal grandmother, who is always appropriate. The therapist described Samantha as a well-adjusted, happy child who would benefit from the permanency of adoption.

.26 Hearing Report

The Bureaus May 2006 .26 hearing report stated that Samantha was developmentally on target, and was doing well in the consistent and nurturing home of her maternal grandmother and maternal uncle, in which foster children Samanthas age also resided. Samantha was in weekly therapy. Attempts by the therapist to have supervised telephone visits with Mother and Samantha were suspended by the Bureau social worker in consultation with the therapist after Mother had not called at the scheduled time or called on the wrong day. Samantha expressed the desire to remain in her grandmothers home because it feels safe to her. Samantha was considered highly adoptable.

The report noted that Parents were allowed one, two-hour visit per month and kept their visits between January and March. The April visit was cancelled because Parents did not confirm it. The visits went well, Samantha enjoyed seeing Parents and, at times, Mother cried when the visit ended. Telephone calls from Mother to the maternal grandmothers home were suspended because of Mothers hostility and threats toward the grandmother or promises to Samantha that she was coming home soon.

The report stated that Parents have a history of domestic disputes and violence and appear to be involved in the methamphetamine-oriented subculture. Father suffers from advanced prostate cancer and Mother appears to be suffering from the emotional effects of long-term methamphetamine use. In February 2006, the substance abuse program notified the Bureau they were closing Mothers case because she was not making scheduled appointments. Beginning in June 2001, there were 11 prior referrals to the Bureau on record. Mother had contacts with the Sheriffs Department from 2000 through 2004 for vandalism, child abandonment, domestic battery (victim), disturbing the peace, rape (victim), malicious telephone calls, child abuse, and battery/corporal injury of a spouse (victim). Between 1998 and 2005, Father had contact with the Sheriffs Department for grant theft, abandoned vehicle on roadway, vandalism (victim), domestic battery, witness to terrorist threats, and corporal injury on a spouse, and was booked on a misdemeanor warrant in March and April 2005.

The Department recommended termination of Parents parental rights and placement of Samantha for adoption.

Section 388 and .26 Hearings

Father did not appear, but was represented by counsel, at the May 8, 2006 combined section 388 and .26 hearings, and Mother appeared with counsel. Mother testified she was participating in domestic violence and substance abuse programs, attending NA and AA meetings, and drug testing at the Tri-Cities program. She also resumed seeing therapist Patricia Marlow. She denied ever refusing a drug test at Tri-Cities, and denied having a substance abuse problem or using drugs and alcohol. She said she had submitted to the petitions allegation of substance abuse because her counsel told her if she did she would have Samantha returned to her in less than 30 days. She said her positive methamphetamine test was from diet pills she was taking. She said the last domestic violence incident with Father was in June 2002. Mother said that Samantha missed her, did not want Parents to leave at the end of their visits, and wanted to go home with them.

Marlow, Mothers therapist, opined that Mother does not have any of the symptoms associated with drug or alcohol abuse. Marlow concluded that the circumstances that brought Mother to therapy with Marlow were not typical of her overall life. Marlow opined that Mothers expressions of anger toward the Bureau social worker were due to anxiety, not drug use. She also said there was no reason why Mother could not parent Samantha. She also said that since her December 2005 letter stating that Mother possessed all the skills and attributes required for effective parenting, she had seen no significant changes in Mother or Mothers circumstances.

Bureau social worker Paula Hollowell testified that Samanthas therapist said, Samantha loves her mother but is very happy with her maternal grandmother, and would not be devastated if she was adopted by her grandmother[,] in terms of the loss of her birth parents. Hollowell said that while Parents are friendly visitors for Samantha, Samanthas needs would be best served by being adopted by her grandmother.

Pursuant to section 317, subdivision (e), Samanthas counsel, Breese Maxwell, reported on her May 3, 2006 visit with Samantha at Samanthas grandmothers home. Maxwell said she was very impressed by the home and the relationship between Samantha and her grandmother. Samantha told Maxwell she liked living at her grandmothers house and liked the other children living there and her school. Samantha also said she had a hard time remembering living with her mother and wanted to live with her grandmother. Samantha told Maxwell that at her last visit with Mother, Mother told her to tell everyone that she wanted to live with Mother. Maxwell said Samantha was very conflicted about her love for Mother and her comfort with her grandmother.

In denying Mothers section 388 petition, the court stated Mother had not shown a change of circumstances. The court noted that Mother only belatedly and sporadically began attending the program she was supposed to attend, and continued to deny a drug problem, and that Samantha was thriving in her current placement. The court concluded that Samantha would not benefit from a change in placement or further reunification services to Mother. In ordering Parents rights terminated, the court found that permanency planning through adoption was in Samanthas best interest, and that an exception to adoption had not been established.

Discussion

I. Mothers Section 388 Petition Was Properly Denied

Mother contends the court abused its discretion in denying her section 388 petition.

Section 388 provides, in relevant part: (a) 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 court previously made . . . . The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. The party seeking modification of a prior court order has the burden of showing changed circumstances or new evidence. (Former Cal. Rules of Court, rule 1432(f) (now rule 5.570(h).)

On the eve of a [.26] hearing, the childs interest in stability is the courts foremost concern, outweighing the parents interest in reunification. Thus, a section 388 petition seeking reinstatement (or, in this case, initiation) of reunification services must be directed at the best interest of the child. [Citations.] (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348-1349.) Thus, Mother had the burden of proving that changed circumstances necessitated modification of the existing order to serve Samanthas best interests. (See In re Jeremy S. (2001) 89 Cal.App.4th 514, 521, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 414.) Given the focus at this point on the needs of the minor for stability and permanency, there is a rebuttable presumption that continued foster care is in the best interests of the minor, and this presumption applies with greater strength when the permanent plan is adoption rather than foster care. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) We are also mindful that, [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. [Citation.] (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

The courts section 388 determination is reviewed for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416; In re S. M. (2004) 118 Cal.App.4th 1108, 1119.)   The appropriate test for abuse of discretion is whether the trial court 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.  [Citations.] (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Mother notes that at the January 20, 2006 12-month review hearing at which reunification services were terminated, she testified that a transportation problem and a problem with cellulitis of her foot interfered with her ability to consistently attend all her required domestic violence and substance abuse classes and drug testing appointments. She argues that notwithstanding circumstances beyond her control which hindered her efforts, she was working on her reunification services at the time they were terminated. She contends that these efforts and her self-directed efforts after termination of services established a change in circumstances at the time of the section 388 hearing. She also contends the record establishes the existence of a close parent-child bond between her and Samantha, which is stronger than the bond between Samantha and Samanthas maternal grandmother. Finally, Mother argues the court failed to adequately evaluate the impact on Samantha of denying Mothers petition, exacerbating its abuse of discretion.

We conclude the denial of Mothers section 388 petition was not an abuse of discretion. At best, Mothers evidence showed changing, not changed circumstances, and failed to demonstrate that placing Samantha with Mother and/or continuing reunification services to Mother were in Samanthas best interest. The court could reasonably conclude that Mother had a substance abuse problem, which she denied, and that despite her bond with Samantha, Samanthas need for permanency would be best served in her current placement with Samanthas maternal grandmother.

II. The Continuing Beneficial Relationship Exception Does Not Apply

Parents contend they met their burden of establishing that termination of their parental rights would be detrimental to Samantha under the continuing beneficial relationship exception to adoption as the permanent plan. ( 366.26, subd. (c)(1)(A).)

At a .26 hearing, where possible, adoption is the permanent plan preferred by the Legislature. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Where the court finds a minor 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 that termination of parental rights would be detrimental to the minor under one of five enumerated exceptions. ( 366.26, subd. (c)(1); In re L. Y. L., at p. 947.)

Subdivision (c)(1) of section 366.26 provides that if the juvenile court finds the child adoptable, the court shall terminate parental rights and order the child placed for adoption unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] (A) The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

In In re Autumn H. (1994) 27 Cal.App.4th 567, the court interpreted the beneficial 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. (Id. at p. 575.) Variables which affect the parent/child relationship, such as the childs age, the portion of the childs life spent in the parents custody, the effect of the interaction between the parent and child and the childs particular needs may be considered by the court in considering the applicability of the beneficial relationship exception. (Id. at pp. 575-576; accord, In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) The relationship must be such that the child would suffer detriment from its termination. (In re Angel B., supra, 97 Cal.App.4th at p. 467.)

The party claiming an exception to adoption has the burden of establishing that the continued beneficial relationship exception applies. We review the courts decision whether to apply the exception for abuse of discretion. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)

Mother argues that Samantha was continuously in Mothers custody between her birth in December 2000 until her removal from Mothers custody in October 2004. She also argues that in the 19 months between Samanthas removal and the .26 hearing, Mother maintained regular contact and visitation with Samantha. And she argues she and Father have interacted appropriately with Samantha during visits. Mother also argues that given the limited visitation schedule ordered by the court, she was able to maintain a positive emotional attachment and close parent-child relationship with Samantha, demonstrating that Samantha would benefit from continuing that mother-daughter relationship. Finally, Mother argues there was insufficient evidence to support the courts finding that termination of her parental rights would not be detrimental to Samantha, given that Samantha had spent more than two-thirds of her life with Mother.

Father argues that despite his failure to participate in his family reunification plan and his frequent poor judgment in his attempts to take care of Samantha and Mother, the record establishes he had an uninterrupted and close relationship with Samantha throughout the five and one-half years prior to the .26 hearing. He argues this qualified him for application of the continued beneficial relationship exception.

In this case, the record clearly demonstrates that Parents maintained regular visitation with Samantha. The issue is whether Samantha would benefit from continuing the parental relationship with Parents. Both Samanthas therapist and the Bureau social worker opined that Samantha would benefit from the permanency of being adopted by her maternal grandmother. Despite his loving relationship with Samantha, Father did nothing to participate in reunification efforts and moved with Samantha into the unsafe basement of a bar, thus failing to demonstrate his ability to provide a stable and nurturing environment for Samantha. Moreover, Mother denies having a substance abuse problem despite a recent positive methamphetamine test and missed drug test appointments, and continues to make poor choices, including encouraging Samantha to say she wanted to live with Mother. A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the childs need for a parent. [Citation.] (In re Angel B., supra, 97 Cal.App.4th at p. 466.) The record before us provides substantial evidence supporting the courts determination that Parents failed to establish that Samantha would benefit to such a degree from continuing her relationship with Parents that she would be harmed if Parents parental rights were terminated.

Disposition

The order terminating parental rights is affirmed.

_________________________

Simons, J.

We concur:

________________________

Jones, P.J.

________________________

Needham, J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line Lawyers.

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