In re Y.L.

Filed 10/18/06 In re Y.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Melissa L., the mother of Y.L., appeals the judgment terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] Melissa contends the juvenile court erred by (1) denying her section 388 motion, and (2) not applying the beneficial parent-child relationship to adoption.

FACTUAL AND PROCEDURAL BACKGROUND

In mid-February 2005, Y.L. was born and tested positive for methamphetamine. Melissa, who did not receive prenatal care during the pregnancy, denied drug use and said she did not have a history of drug use. Melissa explained her and Y.L.'s positive tests for methamphetamine by saying about three weeks earlier a friend had given her a cigarette to relieve her stress. After she smoked the cigarette, Melissa felt strange and was shaking. Melissa suggested the cigarette was drug laced. When it was explained to Melissa that methamphetamine is not detectable in one's system after about three days, Melissa replied that she and her friend had smoked cigarettes about four days earlier, which was two days before Y.L. was born. Melissa said at the time she did not know that the cigarettes contained methamphetamine.

Melissa was married to Hugo L., a citizen of Mexico, and had three older children. Melissa told a social worker that she had been homeless since the previous November, when the family was evicted from the motel in which they were living. Melissa's older children and Hugo were somewhere in Mexico. Melissa did not know the address.

On February 23, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of Y.L., alleging she was at substantial risk of harm because of the inability of Melissa to provide regular care for the child as a result of substance abuse. (§ 300, subd. (b).) At the detention hearing, the juvenile court detained Y.L. in a licensed foster home, ordered supervised visitation for Melissa, and referred Melissa to the Substance Abuse Recovery Management Systems program (SARMS) for an evaluation.

At the jurisdictional/dispositional hearing on March 15, Melissa submitted to the petition on the basis of the social worker's report, and the court sustained the petition. The court declared Y.L. a dependent child, removed Y.L. from Melissa's custody, placed Y.L. in a licensed foster home, and ordered Melissa to comply with her case plan and to participate in SARMS. Melissa's case plan required her to complete a parenting class and a substance abuse treatment program, participate in individual therapy, and undergo a psychological/psychiatric evaluation if her therapist recommended one.

On April 18, police arrested Melissa for being under the influence, possession of methamphetamine and possession of drug paraphernalia. Melissa tested positive for methamphetamine.

On May 4, a "pick up and detain" order for Melissa's three older children was issued. Agency said it believed the children were at risk of harm. Melissa refused to disclose the whereabouts of the children or give any contact information for Hugo.

On July 3, police arrested Hugo for lodging in a vehicle without consent and providing false information to an officer. Melissa was with Hugo at the time. Police found Melissa, Hugo and the three older children sleeping in a minivan in a parking lot at 7:35 a.m. As a man approached the scene, Melissa and Hugo identified this man as the father of the children, and the officer allowed him to leave with the children. Before searching the vehicle, the officer asked if there was anything illegal inside, and Melissa replied there was a methamphetamine pipe in the console. The officer did not find the pipe. After Melissa provided identification, she was allowed to leave. Hugo originally identified himself as Cesar L., but eventually admitted to be Hugo L. Fingerprints showed the individual was indeed Hugo L. However, Melissa continued to insist the man who was arrested was Hugo's brother, not Hugo.

In August, the social worker reported that Melissa was doing well in her drug treatment program, attending regularly with no positive tests. Melissa's recovery specialist noted, however, that although Melissa had been cooperative, she continued to live the life of an addict and may be using drugs, but getting away with it. The social worker noted that other than attending the drug program Melissa was not making progress with her case plan. Melissa had not started parenting classes or counseling; Melissa said she did not need therapy because therapy is for "people who can't think straight." The social worker also reported that Melissa "is either dishonest or refuses to give any specific contact information" for herself, Hugo or her children. When asked where she was living, Melissa responded either she was homeless or living Tijuana.

On August 16, the social worker met with Melissa, who said she expected Y.L. to be returned to her at the six-month review hearing. The social worker explained that she could not recommend that Y.L. be returned because of Melissa's lack of cooperation and communication with Agency and her minimal progress on her case plan. Melissa responded that she "had a lot of things going on" in her life, such as three lawsuits, and she "could not make [Y.L.] the number one priority" in her life. Melissa said she was too busy working, participating in her drug treatment program, handling her personal crisis and maintaining her home in Tijuana to participate in her other case plan requirements and to make Y.L. a top priority.

On September 24, Melissa attended her first parenting class.

On September 29, Melissa's drug treatment program called a case conference because of her lack of progress. The program's counselors reported that Melissa had not made any progress because she did not accept responsibility and did not admit drug use and its effects on her life. The program directors said if Melissa did not acknowledge her need for drug treatment during the conference, she would be dropped from the program. Melissa originally said she had not used drugs since she was 15 years old, but when pressed by the staff, Melissa admitted she had used methamphetamine in April. Melissa also said she was living in an apartment in San Diego with her husband's relatives, but would not reveal the address because of the relatives' immigration status. At the end of the conference, the program agreed to continue services for Melissa, but told her she would not graduate with the rest of her group. Melissa was required to attend one to two additional months of treatment and show progress in order to graduate.

On October 4, Agency changed its recommendation and asked the court to terminate Melissa's services and set a section 366.26 hearing. The change was a result of learning that Melissa had "not made any progress in [drug] treatment . . . and is using the same excuses now that she used the first day of treatment." The social worker reported that Melissa was in denial, did not accept any responsibility for her current situation, and refused to cooperate with or provide information to Agency.

On October 14, at the contested six-month review hearing, the court terminated services and set a section 366.26 hearing.

Agency assessed Y.L. as likely to be adopted, citing her young age, sociability, good health, on-target development and pretty appearance. Y.L. had lived with the same foster parents since she was three days old and they wanted to adopt her. Additionally, there were 47 approved adoptive families willing to adopt a child with Y.L.'s characteristics.

The assessment social worker reported Melissa regularly visited Y.L. on a weekly basis, and the visits went well. During the visits, Melissa was attentive and affectionate toward Y.L.; she also held and fed the child as well as changed her diaper. There was good eye contact between Melissa and Y.L. Melissa plays with and talks to Y.L. during the visits. Melissa also asked the foster mother appropriate questions about Y.L.'s health, diet and sleep patterns. Y.L. appeared comfortable with Melissa, but did not cry or seem unhappy when the visits ended and the foster mother left with her. "[I]t was an easy transition," the social worker noted.

On May 8, 2006, Melissa filed a section 388 motion seeking to change the court's earlier order terminating her services and setting the section 366.26 hearing. For changed circumstances, Melissa noted she had completed her drug treatment program and parenting class, and was continuing her participation in Narcotics Anonymous and in individual therapy. Melissa also cited the results of a hair follicle test that showed she had not used drugs from March 2005 to March 2006. Additionally, Melissa had a home, was employed, and was able to provide a stable environment for Y.L. As to why Melissa's request would be better for Y.L., the petition read: "[Melissa] has maintained regular, weekly contact with [Y.L.] [Y.L.] deserves the opportunity to be raised by her mother. In addition [Y.L.] has three siblings. Although the location of her siblings is unknown at this time, [Y.L.] deserves the opportunity to develop a relationship with them, should they be located."

The court set an evidentiary hearing on the section 388 motion to be held May 15, the same day as the contested section 366.26 hearing.

William Rautt, who had been in the drug testing industry for 15 years, testified that his firm took a pubic hair sample from Melissa and determined that she had not regularly used drugs for the past year. During cross-examination, Rautt said the tests were not inconsistent with Melissa's positive test in April 2005. Rautt explained that a person could use drugs once a month and still receive a negative test under the hair analysis method. Using drugs once a month was not considered regular drug use. Further, a person could have used drugs once a month for 12 consecutive months and still have hair test results indicating that he or she had not regularly used drugs for a year.

Nicole Martinet, a treatment specialist at Melissa's drug treatment program, testified that Melissa was in the program for approximately six months and graduated on November 3, 2005. Melissa's attendance was consistent and her participation was "solid." On 11 occasions, the program tested Melissa for drugs and all the results were negative. Martinet opined that Melissa made progress while in the program and Melissa's prognosis was good. During cross-examination, Martinet acknowledged that in September 2005, the program was considering discharging Melissa because she did not "own up" to her drug use. At the September meeting, Melissa admitted using drugs once ¾ shortly before Y.L. was born.

Jose Santana, the adoption social worker, testified that he observed four visits between Melissa and Y.L. Y.L. seemed to enjoy the visits, but she separated easily when the visits were over. The visits remained supervised throughout the dependency case. Santana opined that Y.L. looked to her foster mother as a parental figure and looked to Melissa as an aunt. Santana also opined it would not be detrimental to Y.L. to terminate parental rights.

Psychologist Carl Nemeth testified that Melissa had weekly therapy sessions from October to November 2005, but then "dropped off for awhile." She attended one session in January 2006, one in April and one in May. The issue of child protection and safety was addressed. Nemeth was not aware of Melissa's positive drug test in April 2005.

Melissa testified that she attended Narcotics Anonymous meetings two to four times a week and this was extremely helpful in maintaining her sobriety. Melissa acknowledged she used drugs before Y.L.'s birth and in April 2005. Melissa also testified she had used drugs a total of five times since she became an adult. Melissa claimed she had been in denial of her drug problem earlier because she was ashamed and devastated when Y.L. was removed from her custody. Melissa's three older children had not met Y.L. Melissa said she and Y.L. had a bond.

The court denied the section 388 motion, finding Melissa had not met the requirements of the statute ¾ showing a change in circumstances and the child's best interests would be served by providing more services.

The court also terminated parental rights and selected adoption as Y.L.'s permanent plan. The court found Y.L. was likely to be adopted and none of the statutory exceptions to adoption applied.

DISCUSSION

I.

Denial of Section 388 Petition Was Not an Abuse of Discretion

Melissa contends the juvenile court erred by denying her section 388 modification petition. The contention is without merit.

Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition shall set forth why the requested modification is in the best interests of the dependent child. (§ 388, subd. (b).)

The parent bears the burden of showing both a change of circumstances exists and that the proposed change is in the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court may consider the entire factual and procedural history of the case in considering a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

Rulings on section 388 motions are reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) An order on a section 388 motion will not be disturbed on appeal unless the court has exceeded the bounds of reason by making an "arbitrary, capricious, or patently absurd" determination. (Ibid.)

Melissa alleged as changed circumstances (1) her completion of drug treatment and parenting classes, (2) her continued participation in individual therapy and in Narcotics Anonymous, (3) her hair follicle test result showing she had not used drugs for a year, and (4) her acquisition of a home and job, which allowed her to provide a stable life for Y.L. Melissa's completion of the parenting class cannot qualify as a changed circumstance because she completed the class before the contested six-month review hearing on October 14, 2005. As to the remaining developments, at most they showed "changing circumstances" regarding Melissa's ability to remain drug free and to parent a child. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)

This court and others have concluded that changing circumstances concerning a parent's substance abuse problems do not constitute a sufficient showing to grant a section 388 petition to modify a previous order. (See In re Casey D., supra, 70 Cal.App.4th at p. 47 [mother's short drug recovery period and failure to complete prior treatment programs showed only changing circumstances and the court did not abuse its discretion in denying her section 388 petition]; see also In re Baby Boy L. (1994) 24 Cal.App.4th 596 [mother with long history of drug abuse, only showed she was beginning to rehabilitate, not changed circumstances].)

Essentially, Melissa asserted that she had been sober for 13 months ¾ from mid-April 2005 to mid-May 2006. However, there was conflicting evidence on this point. Although the hair follicle test results showed that Melissa did not regularly use drugs for one year, the test does not detect once-a-month usage. It was up to the court below, as trier of fact, to determine how much weight to give to the hair follicle test results. The court also could reasonably find that Melissa's claim of a 13-month sobriety was suspect because Melissa had been evasive throughout the dependency, particularly about the location of her three older children and her husband. She continued to dispute that her husband was the man who was arrested in April 2005 ¾ even though fingerprints showed he was.^[2] The credibility of witnesses is a matter left to the trier of fact.

Furthermore, even if one were to accept Melissa's assertion of 13 months of sobriety, this was a relative short recovery time to establish that she no longer had a drug problem. As commendable as 13 months of sobriety is, it represented a "changing circumstance" ¾ not a changed circumstance within the meaning of section 388. On this record, we cannot say the juvenile court abused its discretion in finding Melissa had not established changed circumstances as required by the statute.

Furthermore, to prevail, Melissa had to show that granting her petition would be in the best interests of Y.L. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) This is more difficult to accomplish when the changing circumstances come after reunification services have been terminated or have been denied; 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, 70 Cal.App.4th at p. 47.)

Melissa did not show that it would be in Y.L.'s best interests for the court to place the child with her or order services for her. Those options would have delayed permanency and stability for a child who had been in foster care her entire life. Y.L. had bonded with her foster parents, who wanted to adopt her and had been her caregivers from the time she was three days old. As a 15-month-old child whose only contact with her mother was weekly visits, Y.L. was in desperate need of a permanent home and family. Moreover, the claim it would be in Y.L.'s best interests to have the opportunity to have a relationship with Melissa's three older children, who had never had contact with Y.L., was questionable. The court acted well within its discretion in finding Melissa failed to demonstrate it would be in Y.L.'s best interests to place the child with her or order additional reunification services.

Melissa relies on In re Kimberly F. (1997) 56 Cal.App.4th 519, 532 (Kimberly F.) and its three-part test for analyzing the "best interests" requirement of a section 388 petition:

"(1) the seriousness of the problem which led to the dependency and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated and the degree to which it actually has been." (Ibid.)

The reliance is misplaced because Melissa cannot prevail under the test set forth in Kimberly F.

The original problem in this case is Melissa's substance abuse; when Y.L. was born, she tested positive for methamphetamine. For most of the dependency, Melissa had denied her drug abuse ¾ even in the face of her own positive tests results for methamphetamine. Furthermore, Melissa had not received prenatal care during the pregnancy. These circumstances demonstrate the seriousness of the problem that led to the dependency.

Melissa cannot prevail on the second Kimberly F. factor. Y.L. had bonded with her foster parents and looked to them as her parental figures. Through the weekly visits, Melissa was more of an extended family member to the young Y.L., not a parent.

Finally, Melissa had not shown that she had ameliorated the problems that led to Y.L.'s dependency. For seven months Melissa was in denial about her drug problem and was uncooperative with Agency. At best, the evidence showed Melissa was drug free for 13 months, which is a relatively short time to defeat a drug problem. The juvenile court could reasonably conclude that under these circumstances Melissa had not sufficiently demonstrated the she no longer had a drug problem and would not relapse.

The juvenile court did not abuse it discretion by finding the proposed change was not in Y.L.'s best interests and by denying Melissa's section 388 petition.

II.

Finding of No Beneficial Parent-Child Relationship Exception to Adoption Was Supported by Substantial Evidence

Melissa contends the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption. (§ 366.26, subd. (c)(1)(A).) 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.)

It is undisputed that Melissa maintained regular and consistent contact with Y.L., satisfying the first prong of section 366.26, subdivision (c)(1)(A). At issue, therefore, is whether Melissa satisfied the second prong of the statute ¾ namely, whether Y.L. would benefit from continuing her relationship with Melissa. 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. (1997) 52 Cal.App.4th 318, 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.)

Further, the parent must show the benefit arises from a parental relationship rather than a caretaker or friendly visitor relationship. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) 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.)

Y.L. was removed from Melissa's custody at birth. Subsequently, Y.L. had lived in a loving foster home, and her foster parents wanted to adopt her. Melissa's only contact with Y.L. was through weekly supervised visits. Although the one-hour visits were positive and Melissa performed maternal tasks during them, Y.L. was not unhappy and did not cry when the visits were over. As the social worker noted: "[I]t was an easy transition." The loss of "frequent and loving" contact with a parent is insufficient to show detriment. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) Thus, Melissa did not demonstrate the termination of parental rights would be detrimental for Y.L. Nor did Melissa establish that Y.L. would receive sufficient benefits from continuing her relationship with Melissa.

Melissa also did not meet her burden of showing the benefits of continuing her relationship with Y.L. outweighed the well-being she would gain in a permanent adoptive home. Melissa never played a parental role in Y.L.'s life. The foster parents ¾ not Melissa ¾ were Y.L.'s parental figures. The foster parents had assumed the parental role for Y.L. by providing her with a safe, stable and nurturing home. Y.L. needed a sense of permanence as well as "the sense of belonging" an adoptive family would provide. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In sum, we find substantial evidence supported the court's finding that the parent-child beneficial relationship exception to adoption did not apply.

Melissa's reliance on In re Amber M. (2002) 103 Cal.App.4th 681 is misplaced as that case is readily distinguishable. In In re Amber M., supra, 103 Cal.App.4th at pages 689-690, a psychologist who conducted a bonding study opined the mother and child shared a primary attachment and primary maternal relationship that would make termination of parental rights detrimental. Additionally, the child's therapist and the court-appointed special advocate believed the relationship should continue because the mother and child shared a strong bond. (Ibid.) Melissa did not present similar expert bonding evidence or expert evidence that severing her relationship with Y.L. would be detrimental to her.

The case of In re Brandon C. (1999) 71 Cal.App.4th 1530 is unhelpful to Melissa because it was in a different posture than this case. In that case, the juvenile court found the beneficial relationship exception did apply, and the Court of Appeal declined to reweigh the evidence, holding there was substantial evidence to support the finding. (Id. at pp. 1537-1538.) Here, the juvenile court found the beneficial relationship did not apply. We, too, decline to reweigh the evidence and hold substantial evidence supports the court's finding that the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A) did not apply.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

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

^[2] Also, there was conflicting evidence on whether Melissa had two fraud-related convictions. Melissa conceded she was convicted twice, but, according to Agency's report, Melissa's was only arrested twice for fraud-related offenses.