In re Sherri G.

Filed 4/12/07 In re Sherri G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant Father.

Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant Mother.

Joe S. Rank, County Counsel, and L. Alexandra Fong, Deputy County Counsel, for Plaintiff and Respondent.

Janette F. Cochran, under appointment by the Court of Appeal, for Minor, Refugio L.

Susan Bookout, under appointment by the Court of Appeal, for Minors, Rebecca Z. and Victor Z.

Lori A. Fields, under appointment by the Court of Appeal, for Minor, Sherri G.

Introduction

The Riverside County Department of Public Social Services (DPSS) filed a juvenile dependency petition on behalf of Michelle G. (age 13), Rebecca Z. (age 11), Victor Z. (age 10), Refugio L. (age 6), and Sherri G. (19 months). After a lengthy but unsuccessful reunification period, the juvenile court terminated reunification services and parental rights. Terri Z., the childrens mother (hereafter mother), and Anthony G., Sherris father (hereafter father), appeal the juvenile courts decisions. Mother and father argue that the juvenile court erred in denying their petitions under Welfare and Institutions Code section 388 and failing to apply the beneficial relationship under section 366.26, subdivision (c)(1)(A).^[1]

We conclude that the juvenile court properly found that the children would not have benefited from continuing their relationship with their biological parents and that adoption was in the childrens best interests. We affirm the courts findings and orders.

Factual and Procedural Summary

In June and July 2003, DPSS received referrals and information of neglect and abuse concerning mother, father, and the five children, Michelle, Rebecca, Victor, Refugio, and Sherri, all of whom lived together as one big severely dysfunctional family in a drug-infested area of Perris.^[2] According to one referral, Michelle was treated in a mental health facility for self-mutilation and, upon her release, mother failed to provide Michelle with her medication and aftercare treatment. Michelle also had sex with a 22-year-old man in exchange for drugs and mother allegedly was aware of the transaction. Another referral was based on mothers drug use with two unrelated minors while the children were present in the home. Mother admitted that she had relapsed and recently used cocaine. DPSS also learned that father had been arrested earlier in the year for domestic violence. During the social workers interview with the children, the children indicated that father was physically and verbally abusive to them and physically abusive toward mother. The children also indicated that one or more of them had used drugs with mother. The social worker removed the children on July 22, 2003.

According to their criminal records, mother and father had a number of contacts with law enforcement for domestic violence and their drug dealings. Mothers record with the dependency court also revealed that the four older children were involved in a prior dependency case based on substance abuse and neglect. Although Michelle had been living with her paternal grandparents for 12 years, all four children eventually were returned to mothers custody.

On July 24, 2003, DPSS filed a juvenile dependency petition under section 300 based on a number of allegations. The juvenile court found true the allegations concerning the following: fathers inappropriate physical discipline; mothers failure to protect the children; mothers alcohol and drug abuse; fathers acts of domestic violence; mothers conviction for possessing marijuana and furnishing marijuana to a minor; mothers failure to benefit from past reunification services; and Michelles serious emotional damage.

Michelle was placed in a group home while the other children were placed with their maternal aunt and uncle. Michelle continues to exhibit defiant behavior, including self mutilation, alcohol use, and, on one occasion, running away from her group home. She participates in counseling and takes prescription Lithium and Celexa.

Both parents began participating in family reunification services. Both parents completed a parenting course. Father also began individual counseling and anger management. Mother, after having a number of relapses and being discharged from drug court and a drug treatment program, was making efforts to enroll in another drug treatment program. Although mother wanted to reunify with her children, she was less committed to regaining custody of Michelle. Michelle expressed similar sentiments.

On February 22, 2004, mother was arrested for possessing and being under the influence of methamphetamine. At the six-month review hearing on March 8, 2004, the juvenile court nevertheless found that both parents had made moderate progress and ordered continued reunification services.

For the next several months, mother and fathers progress continued to be slow because of various obstacles. By that time, they had moved out of Perris and moved into a motel room in Riverside. Father maintained regular employment. Both parents were consistent in visiting the children. Mother participated in a domestic violence group, but failed to attend counseling. Mother continued to have problems with drugs and either failed to appear for drug testing or tested positive. She attended a drug treatment program for nine weeks, but was discharged for taking prescription medication, Morphine and Codeine. The medication apparently was for an unsuccessful appendectomy. Mother also needed additional surgery for an unrelated problem. Father was dropped by his counselor because of excessive absences, but later resumed his counseling sessions and was attending regularly. Father completed his parenting and anger management classes.

In August of 2004, the juvenile court placed Michelle with her paternal grandparents, who were planning to send her to a treatment center in Utah to address her drug dependency and behavioral problems.

In her 12-month review hearing report, filed on September 17, 2004, the social worker recommended the termination of reunification services. The juvenile court considered the report, but the record does not indicate that the court held a hearing or changed its prior orders.

In the new few months, while father continued to make progress, mothers situation worsened. Mother was arrested twice for drugs and alcohol. She was charged with driving under the influence (DUI) in October. According to her probation officer, mother was sentenced to probation until 2007. Mother also had unresolved mental health problems, including depression and suicidal ideation, and was evaluated at a mental health hospital.

By January of 2005, father had completed his reunification plan. He and mother were able to rent a one-bedroom apartment. Father continued to attend his weekly counseling appointments. Father repeatedly tested negative for controlled substances and, as a result, was excused from substance abuse counseling. Father, along with mother, was allowed overnight visits with Sherri. Fathers main unresolved problem was his volatile relationship with mother.

In the following month, father informed the social worker that he and mother were getting a divorce. The social worker had reason to believe that this was an attempt to regain custody of Sherri. The social worker visited the apartment and found both father and mother together.

In March 2005, parents made allegations of physical and sexual abuse against the relative caregivers. The social worker also believed that this was an attempt to avoid the termination of parental rights. There was no evidence to support the allegations.

At the 18-month review hearing on April 18, 2005, the juvenile court found that fathers progress in alleviating the problems leading to the dependency was satisfactory while mothers progress was unsatisfactory. Contrary to the social workers recommendation, the court ordered that Sherri be placed with father and continued the other childrens placement with their maternal aunt and uncle. The court scheduled a selection and implementation hearing for Rebecca, Victor, and Refugio.

On May 19, 2005, DPSS filed a supplemental juvenile dependency petition under section 387. The social worker discovered that father continued to reside with mother. The social worker also discovered that Sherri was attending preschool only two days a week. The social worker removed Sherri because father was in contempt of the courts order that mother was not to live with father or have unsupervised visits with Sherri. Additionally, the results of fathers hair follicle test that was taken before the review hearing had returned positive for methamphetamine. The juvenile court found true the allegations in the supplemental dependency petition. Because father already had received over 18-months of reunification services, the court denied services. The court scheduled a selection and implementation hearing for Sherri.

Despite the courts order for continued visitation, parents were not able to visit with all four children. Rebecca and Victor refused to visit with parents. Also, mother and fathers schedule sometimes conflicted with Refugios school schedule.

On March 14, 2006, father filed a request to change the courts order under section 388. He asked the court to reinstate reunification services based on the completion of his case plan and his father/daughter relationship with Sherri. A few days later, mother also filed a request under section 388. Mother claimed that she had completed a 90-day aftercare program and continued to test negative for drugs. Mother also claimed that she was eligible for early termination of probation.

The court held hearings on fathers and mothers requests on July 11, 2006. The court denied both. The court found that, despite their recent efforts, father and mother failed to show that it was in the childrens best interest to reinstate services. The court then held the selection and implementation hearing. The court terminated mothers parental rights to the four remaining children. The court also terminated fathers parental rights to Sherri. Although the court recognized that parents had maintained regular visits with the two younger children, the court found that parents failed to show that the children would benefit from continuing their relationships with them. The court found that the children were likely to be adopted.

Issues and Discussion

1. Section 388 Petitions

Mother and father contend that the juvenile court erred in denying their requests to reinstate reunification services.

Section 388 allows a parent to petition the juvenile court to modify its order because of a change of circumstance or new evidence. The parent must show both that there has been a change in circumstance and that the requested modification would promote the childs best interests. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446; In re Aaron R. (2005) 130 Cal.App.4th 697, 705.) In determining whether this showing has been made, the court may consider certain factors, including the problem leading to the childs removal, the reason the problem was not resolved, the passage of time since the childs removal, the relative strength of the bonds between the parent and child and the caretaker and child, and the nature of change of circumstance, and the reason the change was not made sooner. (In re Aaliyah R., supra, at pp. 446-447; see also In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.) The courts determination on a section 388 petition will not be disturbed absent an abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

The juvenile court denied both requests because mother and father had failed to demonstrate that the requested modification would have promoted the childrens best interests.

A. Mothers Petition

Mother specifically argues that, by the section 388 hearing, mother had resolved the problems leading to the childrens dependency and had maintained a strong bond with the children through their regular visits.

As noted repeatedly by counsel for DPSS during the hearing below, mothers recent efforts were inadequate to demonstrate any lasting change. DPSS intervened in 1997 and removed Rebecca, Victor, and Refugio because of mothers neglect and drug use. DPSS provided reunification services and eventually returned the children to mother. At that time, the court found that mother had completed her case plan and terminated the dependency. DPSS again intervened in 2003 and removed the children, including 19-month-old Sherri, because of mothers neglect and drug use. The current removal also was based on fathers excessive discipline and domestic violence. Before the termination of reunification services in April 2005, mother had received over 18 additional months of services. During that time, mother made very little progress. She was discharged from drug court because of her relapse. After the 12-month review hearing, mother was arrested twice for drugs and alcohol. She was charged with a DUI. Because of her unsatisfactory efforts, the juvenile court terminated reunification services. It took mother almost another year to complete her drug treatment and aftercare program. Sherri was now four and one-half years old.

The juvenile court gave mother ample time to remedy the problems leading to the dependency but mothers own conduct, her relapses and her nonparticipation, prevented her from making satisfactory progress when she had the opportunity. Mother failed to provide adequate justification for not completing her case plan sooner.

While mother continued in her unhealthy lifestyle, the children were finding stability in a relative placement. Early in the dependency, the court placed the children with their maternal aunt and uncle. They resided with this potential adoptive family for almost three years. The childrens overriding interest was in a stable and permanent home. (See In re Jasmon O., supra, 8 Cal.4th at p. 421.) The maternal aunt and uncle provided stability for the children. Sherri lived with this family for most of her life. All of the children, Rebecca, Victor, Refugio, and Sherri, were thriving in this current placement. The older two children, who were now teenagers, held resentment toward mother and refused visitation. Although mother maintained a loving relationship with the younger two children, the record shows that their stability was with their maternal aunt and uncle.

The juvenile court reasonably found that mother had failed to show that it was in the childrens best interest to disturb their current placement in order to provide her with yet another opportunity to become an adequate parent. We conclude that the juvenile court did not abuse its discretion in denying mothers request.

B. Fathers Petition

Father also argues that he completed his case plan and had a strong bond with Sherri. He claims that severing this father/daughter bond was not in Sherris best interests.

As noted by father, he made substantial progress during the reunification period. He completed the various components of his case plan. He maintained a job and was able to find his own apartment. Although he continued to have problems with mother, he had informed the social worker that he was getting a divorce. At the 18-month review hearing, on April 18, 2005, the juvenile court ordered that Sherri be placed in fathers custody. The court, however, specifically ordered that mother not be allowed in the family home and that DPSS provide funding for daycare. About a month later, DPSS filed a supplemental petition after finding that father had failed to comply with the courts order.

The record shows that father and mother had not resolved their domestic violence problems. The court permitted Sherris return on condition that mother would not be allowed in the home. Mother also was not an appropriate caretaker because of her mental health problems and drug use. DPSS was paying $550 a month to a child care provider on fathers behalf. Despite the courts order, father did not use these services and instead allowed mother to take care of Sherri.

The record also shows that father had not resolved his anger management problems, as revealed in his relationship with the older children. Instead of appropriate discipline, father sometimes resorted to yelling. The last visit with the older children ended with an episode where father became abusive. The older children thereafter refused to visit with parents.

Moreover, father took a hair follicle drug test on April 18, 2005, the date of the 18-month review hearing. On May 3, 2005, the tests results came back positive for methamphetamine. The results indicated that father had lied to the court about his sobriety in order to regain custody of Sherri. After the positive test results, father appeared for a drug test with his hair cut and his body shaved. Father was not required to complete a drug treatment program because of his prior negative tests. There is evidence in the record to suggest that father may have falsified his prior tests. Even mother, at one point, said of father that he uses drugs and always has.

While father was more compliant during the reunification period, it appears that achieving Sherris return may have been the result of fathers artful efforts, rather than the result of an actual improvement in his ability to provide Sherri with appropriate care. It appears that father knows what it takes to satisfy the courts requirements. Despite fathers recent efforts to complete a drug treatment program, the juvenile court had reason to doubt whether such efforts indicated genuine change.

Additionally, the record fails to support father claims that he is more strongly bonded with Sherri and can provide her with a safe and stable home. Although Sherri enjoys her visits with father, she has lived with her maternal aunt and uncle for most of her life. She identifies them as her parents. While father wants to have custody of Sherri, he failed to show that he was capable of being her sole care provider. He relies heavily upon mother, which is inappropriate under the facts in this case. The court reasonably found that it was in Sherris best interests to remain in her current placement with her maternal aunt and uncle and her siblings.

We conclude that the juvenile court properly denied fathers request.

2. Beneficial Relationship Exception

Both parents claim that the juvenile court erred in terminating parental rights. They argue that the court should have applied the beneficial relationship exception under section 366.26, subdivision (c)(1)(A).

At a section 366.26 hearing, if the juvenile court finds that the child is adoptable, the court must terminate parental rights. ( 366.26, subd. (c)(1).) Parents may avoid this result by showing that they have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subds. (c)(1)(A).) A beneficial relationship is one 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. [Citation.] The existence of this relationship is determined by [t]he age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs. [Citation.] (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) The parents bear the burden of showing a beneficial relationship. (Ibid.; citing In reAutumn H. (1994) 27 Cal.App.4th 567, 576-577.) A courts determination of whether the beneficial relationship exception applies is reviewed for substantial evidence. (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 955.)

A. Mothers Relationship with the Children

Mother argues that she had regular, positive visits with Refugio and Sherri and that they would benefit from continuing their relationship with her. While there is evidence in the record to show that mother maintained consistent visitation and that the visits were largely positive, substantial evidence in the record also supported the courts finding that the relationship between mother and her children was not worth preserving at the cost of depriving the children of a permanent home.

To meet her burden of proof, mother must show more than regular and loving contacts with her children. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954.) To justify the cost of depriving the children of a stable home with their prospective adoptive parents, mother must show not only that she occupied a pleasant place in the childrens lives but also that she occupied the role of a parent to them. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 325.)

Mother has failed to show that she occupied the role of a parent to Refugio and Sherri. Refugio was born in 1996. Less than a year after his birth, he was removed from her custody because of mothers drug use and neglect in the first dependency. At the time of the section 366.26 hearing in the current dependency, Refugio was 10 years old. He had spent the last three years out of mothers custody and in the home of his maternal aunt and uncle. Sherri was born in 2001. She was removed from mothers custody when she was 19 months old. Sherri had spent the majority of her life in the custody of her maternal aunt and uncle.

Although mother maintained visitation while the children were out of her custody, Mothers chronic drug use, mental health problems, and poor parenting skills prevented her from being more than a pleasant companion and playmate to the children. When the children were in mothers custody, they were being raised in an unhealthy environment of drugs, violence, and neglect. As noted by the social worker, [t]he children parented themselves. Even during the reunification period, mother failed to demonstrate the responsibility necessary to be a parent to her children. As noted by the social worker, mother gave birth to seven children but does not have custody of any of them.

We conclude that substantial evidence supports the courts finding that the children would not have benefited from continuing their relationship with mother.

B. Fathers Relationship with Sherri

Father also claims the juvenile court erred in terminating his parental rights. He argues that the court erred in finding that Sherri would not have benefited from continuing her relationship with him.

Sherris age and the length of time spent out of parental custody strongly undercut fathers argument. Sherri was about four and one-half years old at the time of the section 366.26 hearing. As noted above, she had spent the majority of her life with her maternal aunt and uncle. She may refer to both father and her maternal uncle as daddy, but it is the maternal uncle who has provided Sherri with food, clothing, and a safe and stable home.

Although Sherri has been described as a difficult child, the record shows that her prospective adoptive parents were better able to meet her needs. Because of their strong parenting skills, the maternal aunt and uncle were equipped to handle Sherris sometimes disagreeable behavior.

While Sherri responded positively to father during the visits, the evidence indicates that her reactions may have been the result of other factors. For example, mother and father brought puppies to the visits and made unrealistic promises to the children. They also did not always provide Sherri with adequate care and supervision. During the section 366.26 hearing, Sherris attorney explained, While Sherri might enjoy an hour, hour and a half visit with mother and father, it is clear she knows she will be coming home, and home is where her caretakers are . . . and where her family is, that is where her brothers and sisters are.

We conclude that the juvenile court properly found that Sherris relationship with father was not sufficient to overcome the preference for adoption.

Disposition

We affirm the courts findings and orders.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Ramirez

P.J.

We concur:

s/McKinster

J.

s/Richli

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise stated.

^[2] Mother also has two other sons who were not subjects of the current dependency proceedings. Mothers son, Richard, was in juvenile hall as a delinquent ward because of his cocaine use and defiant behavior. Mothers other son, Ruben, was adopted.