In re Amber K.

Filed 8/8/07 In re Amber K. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Jacklyn K. Louie, Deputy County Counsel; and Patrick D. Goodman, for Plaintiff and Respondent.

____________________

Appellant Rebecca K. (mother) appeals from a juvenile court order terminating her parental rights to Amber K. (Amber) (born Nov. 2003). She contends that the juvenile court erred in (1) denying her Welfare and Institutions Code section 388[1]petition, and (2) declining to apply the contact and benefit exception to preclude Ambers adoption (section 366.26, subd. (c)(1)(A)).

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Amber is detained; DCFS files a section 300 petition; initial hearing

On October 26, 2004, the Department of Children and Family Services (DCFS) received a referral that mother, who was 17 years old, was having sexual intercourse with 32-year old Donovan C. (Donovan), Ambers father. At that time, mother and Amber were living with Wilma H. (Wilma), Ambers great-grandmother, who did most of the nurturing and caring of Amber. At DCFSs request, mother took a drug test.

On November 4, 2004, after mother attempted to break off her relationship with Donovan, he became enraged and threatened mother, Wilma, and himself. Out of fear, mother left Wilmas home and went to the home of Donovans friend, leaving Amber at Wilmas home without any explanation. She then returned and took Amber with her to the friends house. Later, DCFS learned that mothers drug test was positive, and on November 9, 2004, DCFS detained Amber. She was placed in a foster home with Debra R. (Debra).

On November 15, 2004, DCFS filed a section 300 dependency petition in the juvenile court on Ambers behalf. It alleged that (1) mother had a history of substance abuse, rendering her incapable of providing Amber with regular care and supervision; (2) Ambers father was violent and had sexually abused mother when mother was a minor; and (3) mother was allowing Ambers violent father continued access to Amber, placing her at risk of future harm.[2]

At the initial petition hearing, the juvenile court found a prima facie case that Amber was in substantial danger and that there were no reasonable means of protecting her without removing her from mothers home. DCFS was ordered to provide reunification services to mother. Mother was allowed monitored visits with Amber, so long as she enrolled in a drug treatment program.

Amber remains placed with Debra; mother behaves immaturely during visits

Following the hearing, Amber remained placed with Debra. While living with Debra, Amber was a very happy child and was developing at an appropriate rate for her age. She had developed a bond with Debra, who gave her lots of attention. Amber had no developmental delays, disabilities, or emotional problems. The social worker noted that Ambers little face lights up when she sees her. Amber clung to Debra, but was an otherwise normal, happy baby.

Mother, who was participating in her case plan, visited Amber regularly. At the monitored visits, mother was playful. However, the social worker was concerned about mothers immature parenting skills. The social worker believed that mother was unable to show Amber her affection and love. For example, mother was uncomfortable letting Amber cuddle or sleep, and when Amber was tired or sick, mother would often over-stimulate her, tickling her awake to keep her engaged in play. At one visit, mother placed Amber on her shoulders while holding her by one leg. As a result, she nearly dropped Amber.

The social worker concluded that mother lacks insight and understanding of parenting practices that address Ambers developmental needs. Also, the social worker noted that while Amber happily went to see mother, she also happily left at the end of the monitored visits.

Amber is placed with Teresa V. (Teresa)

On March 9, 2005, Amber was placed in the home of mothers friend, Teresa, where mother also resided.

Amber is returned to mothers care, but removed again because of mothers drug use

At the consolidated adjudication and disposition hearing on April 5, 2005, the juvenile court sustained the allegations of the first amended petition. It ordered that Amber be placed under court supervision in mothers care, on the condition that mother continue to comply with her case plan. The case plan included drug rehabilitation with random testing, parenting education, and domestic violence counseling.

Thus, Amber and mother continued to reside with Teresa. Mother helped Teresa take care of Amber. Teresa loved Amber and was willing to care for her forever. Amber became very clingy toward Teresa. She also became very angry and began whining a lot and biting her own arm very hard. Amber also became very emotional whenever Teresa left the room, and was unwilling to sleep in her own bed at night. Teresa was concerned that all the moving around [was] taking its toll on Amber.

Mother then moved to a sober living facility with Amber. While she was there, she relapsed. The facility manager reported serious concerns about mothers ability to care for Amber, finding mother short tempered and not attentive toward Amber. The manager felt that mother had a difficult time deciding which is more important, Amber or her boyfriend. She reported a few small incidents where Amber . . . hurt herself. On one occasion, while mother was on the telephone with her boyfriend, and not paying attention, Amber fell and hit her head very hard. Mother believed that the manager had totally over reacted by taking Amber to the doctor. Mother also said that she did not feel that using drugs had much to do with Amber, who was too little to really understand what was going on. According to DCFS, mother failed to see the connection between her drug use, and her inability to appropriately parent.

At some point, mother called DCFS and conceded that she could not take care of Amber and stay sober at the same time. Mother wanted Teresa to take Amber back while mother focused on her sobriety. However, instead of working on her sobriety, mother left the sober living facility on August 17, 2005. She explained to the DCFS social worker that she resented being confronted in therapy about her lack of commitment to recover. She did not appreciate that in her group therapy sessions, other participants were giving attitude. She moved back into the area where she had once abused drugs.

As a result of the foregoing, DCFS removed Amber from mother and placed her back with Teresa.

Subsequent detention and adjudication hearings; Amber is placed with Teresa and then with another foster family

At the detention hearing on August 26, 2005, the juvenile court found a prima facie case that mothers relapse placed Amber in substantial danger. A month later, at the combined adjudication and disposition hearing, the juvenile court ordered that Amber remain with Teresa out of mothers care. Mother was ordered to receive monitored visitation and reunification services; she also was instructed to comply with the original April 5, 2005, case plan.

Three days later, Teresa informed DCFS that she could no longer provide for Amber and watch her go through this again with [mother], knowing that she is still living the life style that [led] to DCFS intervention. She requested that Amber be placed with someone else.

Consequently, Amber was removed from Teresas home and placed with Ms. H. Ms. H. reported that Amber would bite herself, leaving teeth prints. She also began to have trouble forming words, and was eventually diagnosed with developmental delays. Amber and mother conversed on the telephone for five to 10 minutes on most days, and had monitored visits three times a week. However, mother was still missing drug tests and had not begun her drug treatment plan.

On November 8, 2005, mother disclosed that she was two months pregnant.

Mothers reunification services are terminated

On January 10, 2006, mother informed DCFS that she wanted Ms. H. to be Ambers legal guardian.[3] Meanwhile, Ms. H. reported that she was moving out of state before the case would be resolved; thus, Amber needed to be moved again.

Between October 2005 and February 2006, mothers drug testing results were as follows: seven no shows and two tests with negative results.

At the April 21, 2006, status review hearing ( 366.21, subd. (e)), mother changed her mind and decided that she did still want to receive reunification services. Mother had just enrolled in an outpatient drug treatment program on April 5, 2006. However, between October 2005 and April 2006, mother had only shown up for three out of 10 drug tests. The juvenile court noted that seven no-show tests were considered dirty tests. When asked why she waited until April 2006 to enroll in a drug treatment program, mother had no answer for the juvenile court. Given mothers inconsistent participation in drug treatment, her relapses, and her no-shows for drug tests, the juvenile court found that there was no probability of Ambers return to mothers care in the next six months. The juvenile court then granted DCFS and Ambers request that mothers reunification services be terminated.

Amber moves into the foster home of Mr. and Mrs. A.

On May 4, 2006, Amber moved in with her current foster-adopt parents, Mr. and Mrs. A. They are anxiously waiting to adopt Amber and cannot picture their life without her. They are totally committed to Amber. They love her very much. The DCFS social worker observed their warm, nurturing relationship with Amber.

Mr. and Mrs. A. took two sets of classes to prepare themselves to care for Amber. They also enrolled Amber in preschool. Amber acclimated well in her new home, calling Mr. and Mrs. A. mommy and daddy since her first week there. Their extended family welcomed Amber with open arms. The social worker found Mr. and Mrs. A. to be mature, loving, and stable adults who were capable of providing for Ambers needs.

Mothers behavior between May 2006 and August 2006

Meanwhile, mother failed to show for drug tests on June 9, 2006, and July 7, 2006. She did, however, complete parenting classes and an outpatient drug program, and reached step two of her 12-step Narcotics Anonymous program.

Mother gave birth to a drug-free child, Am. T. (Am.),[4]in June 2006; on June 10, 2006, she married Am.s father, Everett T. (Everett). They were living with Wilma and were receiving assistance from the Health Department and a nurse, who would follow mother and Am. for one year. Mother did not want a voluntary agreement with DCFS to assist with the new baby. She indicated that she would obtain assistance for housing with California Work Opportunity and Responsibility to Kids Act (CalWORKS). At some point, mother, Everett, and Am. moved from Wilmas home into a sober living facility.

There were no allegations of abuse for Am.

Mother, Everett, and Am. had monitored visits with Amber once a week.

Mothers section 388 petition

On September 15, 2006, mother filed a section 388 petition seeking Ambers return or reinstatement of reunification services. She alleged that she had completed an outpatient drug program and parenting classes, and had participated in Narcotics Anonymous meetings. She also represented that she had completed anger management classes, addicted education classes, two classes of advanced recovery, one class of self help, goal setting classes, relapse prevention classes, and book study classes.

Mother also alleged that her monitored visits with Amber were consistent, and that Amber was bonded to her and called her mom.

She had tested for drugs four times, and her results were negative.

Mothers petition was set for hearing.

DCFSs response to mothers section 388 petition

DCFS opposed mothers section 388 petition. In support of its opposition, DCFS documented an October 3, 2006, meeting with mother. At that time, mother admitted to the social worker that she was not actually ready to have Amber returned to her. DCFS noted the possibility of mothers relapse, mothers precarious income and housing situation,[5]and mothers inability to take Amber back immediately. DCFS concluded that to wait endlessly for mother to be ready to reunite was not in Ambers best interest.

Also on October 3, 2006, mother had her first unmonitored visit with Amber.

Meanwhile, mother failed to show for random drug tests on October 12, 2006, and October 25, 2006. She also stated that she did not have enough urine for a sample on November 2, 2006, although she returned the next day for a makeup test, which was negative.

On November 3, 2006, mother told a DCFS social worker that she knew that she had lost Amber and that she was moving on with her life. She continued to refuse services from DCFS regarding Am., instead insisting that [w]e are going to move to Georgia and start over there.

Initial hearing on mothers section 388 petition

At the hearing on November 9, 2006, the juvenile court noted that the situation was unstable. If we were here a lot earlier in the case, that would be one thing, but in terms of showing stability to take this child and put this child into an unstable situation where the mother has just been in a month and in an unstable situation before, that really doesnt make sense to me. It continued: [T]here has been some change of circumstance, but not sufficient. . . .  [T]here has been a lot of instability. . . .  [] [I]n terms of her lacking stability, yes, there is a change of circumstances. But there is not sufficient stability in a change of that factor in her life.

Despite the foregoing concerns, the juvenile court did not deny mothers section 388 petition; instead, it continued the hearing on the petition so that it would be heard at the same time as the section 366.26 hearing.

December 6, 2006, hearing

On December 6, 2006, the juvenile court heard both mothers section 388 petition and the section 366.26 hearing to select and implement a permanent plan for Amber.

The parties stipulated that, if called, mother would testify as follows: (1) Amber calls mother her mother; and (2) during visits, mother and Amber have a relationship. No further testimony or evidence was offered by mother.

Also, the juvenile court took judicial notice of the entire file.

Ambers attorney noted that after placement in six different homes, Amber had been in too many placements in her three years of life. She argued: The thing that Amber needs from [mother] is consistency and that[s] what unfortunately [mother] has been denying her her whole life.

After entertaining oral argument, the juvenile court denied mothers section 388 petition. It found an insufficient change of circumstances to return Amber to mother or to reinstate reunification services; a change was not in Ambers best interests. In so ruling, the juvenile court considered mothers history, including the fact that Amber had been in the system for over two years. While mother claimed that she had been sober for over one year, the juvenile court noted that she had actually missed two recent drug tests, which were considered dirty. The juvenile court did, however, admit that mother had made progress and was working to keep Am.

The juvenile court then turned to the hearing on the section 366.26 petition. Mother argued that under the exception to the termination of parental rights ( 366.26, subd. (c)(1)(A)), mothers parental rights should not be terminated because she had a beneficial relationship with Amber. DCFS and Ambers attorneys asked that parental rights be terminated, allowing Amber to be adopted. Given Ambers adoptability and need for permanency and stability, terminating mothers parental rights would not be detrimental to Amber.

The juvenile court then terminated parental rights. It noted that mothers contact with Amber had pretty much been weekly at McDonalds, nothing showing she has had a parental role in the childs life. This contact did not outweigh the benefit of permanence through adoption with Mr. and Mrs. A.

This timely appeal from the juvenile courts order (1) denying mothers section 388 petition, and (2) terminating mothers parental rights followed.

DISCUSSION

I. Mothers Section 388 Petition

A. Standard of review

We review a juvenile courts order denying a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

B. The juvenile court did not abuse its discretion when it denied mothers section 388 petition

Section 388 provides, in relevant part: Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstances or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made. (See also In re Brandon C. (1993) 19 Cal.App.4th 1168, 1172.) Section388 provides the escape mechanism . . . built into the process to allow the court to consider new information. [] . . . Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances. . . .  [] . . .  [T]he Legislature has provided the procedure pursuant to section 388 to accommodate the possibility that circumstances may change after the reunification period that may justify a change in a prior reunification order. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

That being said, [i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529; 388, subd. (b).) Some factors which provide a reasoned and principled basis on which to evaluate a section 388 motion include (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 re Kimberly F., supra, at p. 532.)

[T]he burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Here, the juvenile court did not abuse its discretion when it denied mothers section 388 petition. While mothers circumstances were changing, they had not yet changed. For example, although mother was making laudable progress toward addressing her drug addiction, she was still failing to show or submit samples for random drug tests mere weeks before the hearing on her section 388 petition. In fact, despite Amber being in the juvenile court system for over two years, mother was only on step two of a 12-step recovery program. (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 686687.)

Moreover, mothers immaturity was ever present. When mother was pregnant with Am., she requested the termination of reunification services because she admitted that she could not care for two children. At several stages of the case, DCFS social workers noted mothers inability to nurture Amber during visits and behave in a relaxed, parental role. As little as one month before the hearing on the section 388 petition and the potential termination of parental rights, mother told DCFS that she knew that she had lost Amber and wanted to move on with her life, with her new family in another state. And, at the time of the hearing, mother still was living in a sober living facility unit that could not accommodate Amber except with an additional expense that would be difficult for mother to afford.

Furthermore, the juvenile court did not err in concluding that a change was not in Ambers best interests. (In re Marilyn H., supra, 5 Cal.4th at p. 309 [following the termination of reunification services, the juvenile court must pay primary attention to the best interests of the child].) Amber has been forced to move among six different placements during two of the most formative years of her life. She needs stability to promote healthy development. That is exactly what she is being given while living with Mr. and Mrs. A., where she has been living and thriving since May 5, 2006. In fact, the DCFS social worker opined that disrupting Ambers placement would be detrimental to her. As mother has indicated that she is not yet able to take custody of Amber, granting the section 388 petition would mean removing Amber from a stable home and placing her back into prolonged uncertainty.

Under these circumstances, the juvenile court did not err in denying mothers section 388 petition.

II. The Contact and Benefit Exception to Adoption

A. Standard of review

Appellate courts have differed as to whether the substantial evidence or abuse of discretion standard of review applies to a juvenile courts determination that the section 366.26, subdivision (c)(1)( A) exception is inapplicable. (Compare In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [substantial evidence] with In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) But: The practical differences between the two standards of review are not significant. [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . .  Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . .  [Citations.] . . .  The juvenile courts opportunity to observe the witnesses and generally get the feel of the case warrants a high degree of appellate court deference. [Citation.] (In re Jasmine D., supra, at p. 1351.)

B. Substantial evidence supports the juvenile courts order that the contact and benefit exception did not apply

When a juvenile court has terminated reunification services and reaches the selection and implementation stage of proceedings ( 366.26), it must select adoption, guardianship, or long-term foster care. Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

If the court makes the finding that a child is likely to be adopted, parental rights must be terminated unless one of four enumerated exceptions is found to apply. ( 366.26, subd. (c)(1); In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) Under section 366.26, subdivision (c)(1)( A), the exception at issue here, the court shall terminate parental rights . . . 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: [] . . .  The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

While regular visitation is a threshold requirement, alone it is insufficient. The parent has to show that his [or her] relationship with [the minor] 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. [Citation.] [] The parent must do more than demonstrate frequent and loving contact[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a parental role in the childs life. [Citations.] (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)

The parent has the burden of proving that this exception applies, and it applies only in extraordinary cases. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Adoption remains the norm absent exceptional circumstances. (In re Celine R., supra, 31 Cal.4th at p. 53.)

Applying these principles, under either the substantial evidence or abuse of discretion standard of review, we conclude that the trial court did not err in failing to apply this exception to prevent Ambers adoption. While mother has had a relationship with Amber, it has not been parental. She has never been the primary caregiver providing for Ambers needs. When Amber lived with mother at Wilmas house, Wilma did most of Ambers nurturing and caring. After Ambers initial detention, juvenile court later allowed Amber to live with mother; however, at that time, Teresa cared for Amber. In other words, even when Amber has lived with mother, somebody else has been there to provide for Ambers daily needs.

Moreover, during visits with Amber, mother was more of a playmate than a parent. (See, e.g., In re Autumn H., supra, 27 Cal.App.4th at p. 577.) And, while Amber was happy to go to mother at the beginning of a visit, she was also happy to leave at the end. Unlike with Ambers other caregivers, Amber has not clung to mother during visits. And, notably, since August 2005, it appears that mother had only one unmonitored visit with Amber.

Under these circumstances, the juvenile court did not err in finding that section 366.26, subdivision (c)(1)(A) does not apply.

DISPOSITION

The juvenile court orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

CHAVEZ

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

[2] On January 28, 2005, DCFS filed a first amended petition, with largely identical allegations.

[3] Later, on March 9, 2006, mother signed an affidavit, attesting to the facts that (1) she wanted Ms. H. to have legal guardianship of Amber, and (2) have her reunification services terminated.

[4] There appears to be some confusion over the spelling of this childs name, which is sometimes spelled Am., other times spelled Amy., and still other times spelled Amil.

[5] A report dated October 25, 2006, indicated that mother, Everett, and Am. were living a sober living home. The three shared one room and a common half-bath with another family. They did not have a bed for an additional child and the room did not have adequate space for another bed. Moreover, there would be an additional cost for an added child, and Everett had indicated that money was very tight.