In re Ashley L.

Filed 6/14/07 In re Ashley L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 judgments and an order of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Affirmed.

Cassie L. appeals judgments terminating parental rights to her children, Ashley L., E.L., and Alana L. She also appeals an order denying her petition for modification under Welfare and Institutions Code section 388.^[1] We affirm the judgments and order.

FACTUAL AND PROCEDURAL BACKGROUND

Cassie L. is the mother of Ashley L., born January 2002, E.L., born November 2002, and Alana L., born June 2005. The family came to the attention of the San Diego Health and Human Services Agency (Agency) in August 2004, due to the sudden, unexplained death of a three-month old sibling, R.L. Later tests showed that R.L. had low levels of methamphetamine in his system. The medical examiner classified the cause of death as "Sudden Unexplained Infant Death Associated With Methamphetamine."

In October 2004, the Agency detained Ashley and E.L. and filed dependency petitions on their behalf. ( 300, subd. (b).) Cassie admitted that she had used methamphetamine "on and off" since August 2003, and that she used the drug heavily after R.L. died. On October 6, she tested positive for methamphetamine. When detained, Ashley and E.L. were dirty and bruised. E.L. tested positive for methamphetamine. He had an untreated ear infection, extreme dental cavities, and developmental and language delays. Ashley also had developmental delays. When Alana was born in June 2005, she was adjudicated a dependent of the juvenile court and placed in foster care.

Cassie participated in recommended services, including drug treatment, and visited the children regularly. In November 2005, at the 12-month review hearing for Ashley and E.L., the court found that Cassie had made substantive progress in alleviating the causes for the children's dependencies, and returned the children to her care.

In February 2006, the Agency recommended that Alana be placed with Cassie. However, before Alana was returned to Cassie's custody, the children's attorney and the Agency filed petitions asking the court to remove Ashley and E.L. from Cassie's care. While in Cassie's care, Ashley and E.L. did not receive medical, dental or eye examinations. They had excessive absences from their school program, which was designed to meet their special education needs. On occasion, they arrived at school dirty and hungry. The Court Appointed Special Advocate (CASA) was concerned that Ashley and E.L. were regressing in both their speech and behavior. Cassie had been evicted from her home, and failed to remain in contact with the social worker.

On March 10, 2006, the court placed Ashley and E.L. in foster care and ordered Cassie to submit to a drug test. Cassie did not comply. On May 10, she tested positive for methamphetamine. Cassie was convicted of felony child abuse in connection with R.L.'s death and sentenced to three years probation, with intensive supervision. Cassie did not undergo a court-ordered psychiatric evaluation, refused to meet with the Agency social worker, and was not in compliance with the conditions of her probation.

On May 16, 2006, the court terminated family reunification services and set a permanency planning hearing under section 366.26. The proceedings were delayed until January 10, 2007, in part to provide proper notice to the children's father, who had not sought family reunification. On that date, Cassie filed a petition for modification under section 388 seeking the return of the children to her custody.

Cassie testified that she had remained sober since May 2006, and that her substance abuse problem was "under control." She attended Narcotics Anonymous (NA) meetings every week and was "just starting" step one. Cassie was unemployed. She was living with her boyfriend, whom she had been dating since May. When the children were with her, she cared for them as best she could. At visits, the children were excited to see her. Ashley and E.L. asked to come home with her.

The social worker testified that, with few exceptions, Cassie visited the children regularly. She was appropriate and loving with the children. However, the social worker recommended adoption because Cassie was unable to meet the children's needs while they were in her care. The children's primary need was for stability. With structure and attention, Ashley and E.L. had made remarkable progress in overcoming their early language and developmental delays. The children were adoptable and had been in a prospective adoptive placement since October 2006.

The court found that Cassie had not shown that her circumstances were changed or that it would be in the children's best interests to be returned to her care. The court determined that the children were adoptable. The court found that Cassie had maintained regular visitation with the children, and that the children enjoyed her visits, but that the parental relationship did not outweigh the benefits the children would gain through adoption. ( 366.26, subd. (c)(1)(A).) The court terminated parental rights.

DISCUSSION

A

The Court Did Not Abuse Its Discretion When It Denied Cassie's Petition for Modification Under Section 388

Cassie contends that the juvenile court erred when it denied her petition for modification under section 388 on its merits. She argues that she showed a sufficient change in circumstances in that all of her drug tests in the past year had been negative, she was attending NA, had a permanent residence, and maintained consistent visitation with the children, who were bonded to her.

The Agency asserts that the court did not abuse its discretion when it denied Cassie's petition for modification. It argues that Cassie did not show a change in circumstances and that she did not show that it would be in the best interests of the children to return to her care.

Under section 388, a parent, interested person, or the dependent child (generically, petitioner) may petition the court to change, modify, or set aside a previous order on the grounds of changed circumstances or new evidence. ( 388, subd. (a).) The petitioner has the burden to show a change of circumstances or new evidence, and that the proposed modification would be in the child's best interest. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification. (Cal. Rules of Court, rule 5.570(h)(1).)

We review the grant or denial of a petition for modification under section 388 for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)

In evaluating whether the petitioner has met his or her burden to show changed circumstances, the juvenile court should consider "(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." (In reKimberly F. (1997) 56 Cal.App.4th 519, 531-532 ["While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion."].)

Here, the problems that led to the dependency were extremely serious. One-year old E.L. and three-month old R.L. were exposed to methamphetamine, which may have been a factor in R.L.'s death. Although Cassie blamed R.L.'s drug exposure on a babysitter, she admitted that E.L. was exposed to methamphetamine when she left the drug in the bathroom. Cassie neglected her children's basic needs. When the children were returned to her custody after 12 months of services, despite support, Cassie failed to provide Ashley and E.L. with needed medical and dental care. She was unable to ensure that the children regularly attended their special education programs, and did not consistently bathe and feed them. The children's progress in resolving language and developmental delays deteriorated, as did their behaviors. In addition, Cassie relapsed into methamphetamine use.

Under section 388, subdivision (a), the focus in considering a petition for modification is whether the petitioner has shown a legitimate change of circumstances. The court in this case could reasonably have concluded that the nature and extent of Cassie's drug use was not easily resolved or ameliorated. (In reKimberly F.,supra, 56 Cal.App.4th at p. 532.) The record belies Cassie's assertion that she had maintained her sobriety for one year. Despite a court order directing her to submit to a drug test on March 10, 2006, Cassie did not comply. She tested positive for methamphetamine in May, and was out of compliance with SARMS when she was terminated from that program in June.

Cassie testified that she had attended NA for two years, but she had not yet started step one of the 12-step program. The court noted that Cassie tested negative for drugs several times between late May and mid-October 2006. However, Cassie did not show that she had successfully completed a substance abuse program or that she was currently participating in one. In addition, Cassie was unemployed and dependent on a boyfriend, with whom she had had only a short-term relationship, for financial support and housing. Substantial evidence supports the court's finding that Cassie did not show that she had effected a legitimate change in her circumstances. ( 300, subd. (a).)

Further, Cassie did not show that returning the children to her custody would be in their best interests. ( 388, subd. (a).) Alana has never lived with Cassie. Ashley and E.L. "blossomed" in the care of their foster parents, who were committed to adopting the sibling group. With consistent, structured and attentive care, Ashley resolved her severe acting-out behaviors, which included tantrums, enuresis, language problems, difficulty with social skills and aggressive behavior. Initially diagnosed as moderately delayed, Ashley became a top performer in preschool and was scheduled to start kindergarten in a regular classroom. E.L., too, had improved tremendously. His tantrums disappeared and his verbal skills quadrupled. E.L. told his therapist that he was happy and that he loved his foster parents, his house and his dogs.

Cassie did not present any evidence to show that she had completed a parenting class, obtained a psychiatric examination, participated in individual therapy, attended the children's medical appointments, or demonstrated an interest in their special education plans. In considering the evidence presented and Cassie's current and past circumstances, and comparing the ways in which Cassie and the foster parents responded to the children's needs, the court did not abuse its discretion when it determined that it would not be in the children's best interests to be returned to Cassie's care. (Kimberly F.,supra, 56 Cal.App.4th at p. 532.)

B

Substantial Evidence Supports The Court's Finding That The Beneficial Parent-Child Exception Under Section 366.26, Subdivision (c)(1)(A) Does Not Apply

Cassie asserts that the court erred when it determined that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) does not apply to preclude termination of parental rights. She contends that the court's findings are not supported by substantial evidence.

At a permanency plan hearing, the court may order one of three alternatives adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)

Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We recognize that interaction between parent and child will usually confer some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th 567, 575.) To overcome the statutory preference for adoption, the parent must prove that he or she occupies a parental role in the child's life that results in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental relationship would deprive the child of "a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The party challenging the ruling bears the burden of showing that there is insufficient evidence to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

The record shows that Cassie was affectionate and appropriate with the children and that they were often excited and happy to see her. However, substantial evidence supports the court's finding that termination of the parent-child relationships would not be seriously detrimental to the children, and that any benefit the children might gain from preserving the parent-child relationship was outweighed by the benefit that would be conferred by the security, stability, and safety of an adoptive home. ( 366,26, subd. (c)(1); In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The social worker opined that 19-month old Alana did not have a strong relationship with Cassie. Alana never lived with Cassie and was parented by others her entire life. Although E.L. was happy to see Cassie, he easily separated from her. Cassie did not nurture Ashley, and their relationship was strained. Although Ashley had asked to go home with Cassie on several occasions, she often had tantrums before scheduled visits and required reassurance from the foster parents that they would return for her.

Jordana Wasilesku, Ashley's therapist, testified that Ashley seldom spoke of Cassie unless she was asked about her. When asked to draw pictures of her family, Ashley did not include Cassie. Because of Ashley's lack of emotional expression toward Cassie, Wasilesku opined that Ashley did not appear to have a strong relationship with Cassie. Wasilesku did not believe a lack of contact with Cassie would place Ashley at risk.

E.L.'s therapist, Meredith Ring, testified that E.L. talked about his foster parents and the activities they did together. At every session, E.L. told her he loved his foster parents, his house and his dogs. He never spoke about Cassie. Ring did not believe a lack of contact with Cassie would be detrimental to E.L.

Although the record shows that the limited interactions between Cassie and the children conferred some benefit to each child, substantial evidence supports the court's finding that the security of a stable, permanent home with committed, capable adoptive parents outweighed the children's interest in a continued relationship with Cassie. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

DISPOSITION

The judgments and order are affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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