In re M.A.

Filed 8/3/07 In re M.A. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Appellant Lisa T., the mother of the minor, appeals from the juvenile courts orders denying the fathers request for modification and terminating parental rights. (Welf. & Inst. Code, 366.26, 388, 395.)^[1] Appellant contends the juvenile court erred by denying the fathers modification petition. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2005 a juvenile dependency petition was filed concerning the one-month-old minor based on ongoing domestic violence between appellant, who was nearly 19 years old, and the minors father, 17-year-old Vincent A., with the most recent incident resulting in the minors falling to the ground during an argument. While the jurisdictional hearing was pending, appellant was found intoxicated in public on two occasions, and the petition was amended to add an allegation concerning her alcohol abuse.

At a jurisdictional hearing in January 2006 the juvenile court sustained the allegations in the petition as amended and ordered appellant and Vincent to comply with the case plan developed by the social worker. The plan required both parents to engage in general counseling and parenting education. In addition, appellants plan included participation in a domestic violence program, and Vincent was to attend anger management classes.

In a June 16, 2006, report for the six-month review hearing, the social worker recommended termination of reunification services. Appellant had been extremely irregular during the course of [individual counseling] treatment, and her participation in substance abuse treatment was minimal. She failed to attend the domestic violence program. Vincent had not attended anger management classes and had missed two parenting education sessions. He was terminated from therapy shortly after the dispositional hearing because he was volatile and threatening toward appellant during a session and became manipulative, abusive and explosive toward [her] in front of the counseling building following the session. The therapist was willing to resume counseling with Vincent if he began a medication regimen, and the social worker attempted to make arrangements for Vincent to obtain medication but he did not follow through with the referrals.

Appellant and Vincent, who had a history of breaking up and immediately getting back together, were required to visit the minor separately after Vincent became volatile and threatening during a visit in January that occurred shortly after one of their breakups. The parents were inconsistent in attending visits and displayed a lack of parenting skills when they did attend.

In an addendum prepared in July 2006 the social worker reported: [T]he parents are still volatile with one another and there are still incidents of domestic violence within the relationship. The report also disclosed an incident that occurred before a court hearing in June 2006, in which Vincent contacted the social worker to request a visit with the minor before the hearing, which was to take place 20 minutes later. Vincent expressed that there was a good chance that he would be going to jail and he wanted one last visit. When the social worker explained to Vincent that he had missed his visit the day before and it would be impossible to arrange another on such short notice, Vincent became very upset and stated that he might kill himself by slitting his wrists.

At the six-month review hearing in August 2006 the juvenile court terminated reunification services and set the matter for a section 366.26 hearing to select and implement a permanent plan for the minor.

According to the report prepared by the social worker for the section 366.26 hearing, the minor had been in the same foster home since his removal from parental custody. The minor was happy, comfortable and well adjusted in placement, and his foster parents were willing and able to adopt him. The social worker concluded it was likely the minor would be adopted if parental rights were terminated.

On the date of the section 366.26 hearing in January 2007 Vincent filed a request to change the courts order ( 388), in which he sought return of the minor to his custody or reinstatement of reunification services. Vincent asserted he had obtained stable employment and housing that could accommodate the minor, had separated from appellant and did not intend to resume the relationship, and had addressed his depression issues. He alleged the relief he sought would benefit the minor because he had maintained a close and positive relationship with the [minor], who would thrive in his care.

At the hearing on Vincents request, which occurred on January 10, 2007, he testified he had become a lot more stable and a lot more able to take care of [his] services. According to Vincent, he had been living with his brother, his brothers fianc, their child, his mother, and his mothers husband in a three bedroom home since January 1, 2007. He was working under the table for a towing company and had arranged for the paternal grandmother to provide childcare. Vincent testified that the paternal grandmother was on probation but was clean now.

According to Vincent, he had ended his relationship with appellant one and a half months before the hearing, but he stayed in touch with her to let[] her know how [he was] doing and [to ask] her how she [was] doing. With regard to his depression, Vincent explained that many of his issues had just disappeared since his separation from appellant. He acknowledged he had attended only one anger management class but maintained his anger issues were because of problems with appellant that were no longer with [him]. He admitted he had missed several visits because of lack of transportation and had not completed parenting classes.

Appellant testified in support of Vincents request to change the court order. She maintained that Vincent had learned more how to handle his anger since their separation. She also testified that, based on her experience in foster care as a child, she believed the minor would suffer emotionally if he did not have contact with her.

Following testimony, Vincents attorney argued that the major obstacle to Vincents involvement in services had been his lack of stability, which now had been addressed. She argued it would be in the minors best interest to reinstate services for Vincent or return the minor to his care because it would allow the minor to maintain a bond with the biological family.

The juvenile court found a change of circumstances but noted that Vincent had not reengaged in services since reunification efforts were terminated. Consequently, the court denied Vincents request for return of the minor or reinstatement of services.

The court concluded the minor was likely to be adopted if parental rights were terminated and that an exception to adoption based on the minors relationship with the parents did not apply. ( 366.26, subd. (c)(1)(A).) The court terminated parental rights and ordered a permanent plan of adoption.

DISCUSSION

Appellant contends the juvenile court erred by denying Vincents request to modify its previous order. We disagree.

Section 388, subdivision (a) provides, in part: Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court.

Section 388 permits a modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).) The petitioning party has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48 (Casey D.).)

One of the functions of section 388 is to provide an escape mechanism when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights. (Kimberly F., supra, 56 Cal.App.4th at p. 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the childs need for prompt resolution of his custody status. (Marilyn H., supra, at p. 309.)

The best interests of the child are of paramount consideration when a modification petition is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this juncture, the juvenile court looks not to the parents interests in reunification but to the needs of the child for permanence and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. (Casey D., supra, 70 Cal.App.4th at p. 47.)

[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the courts discretion to decide that a childs interest in stability has come to outweigh the natural parents interest in the care, custody and companionship of the child. (In re Jasmon O. (1994) 8 Cal.4th 398, 419 (Jasmon O.).)

A modification petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (Jasmon O., supra, 8 Cal.4th at p. 415.) It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . . (Kimberly F., supra, 56 Cal.App.4th at p. 522.)

Applying these principles to the circumstances before us, we conclude the juvenile court did not abuse its discretion when it denied Vincents request to modify the courts previous order. Although Vincent had made progress in addressing some of the problems that had hindered his involvement in the reunification process, he had not even begun to engage in the services necessary for the minor to be safely returned to his care. It was well within the juvenile courts discretion to decline to place the minor with him under such circumstances.

The only alternative open to the court was to reinstate reunification services, which would have resulted in a further period of uncertainty for the minor, who was indisputably adoptable. But the escape mechanism provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (Kimberly F., supra, 56 Cal.App.4th at p. 528.) In most cases, if a parents circumstances have not changed sufficiently to permit placement with that parent of an otherwise adoptable child, reopening reunification does not promote stability for the child or the childs best interests. (Casey D., supra, 70 Cal.App.4th at p. 47.) Under the minors circumstances, a modification that would entail anything short of placement with Vincent would have run counter to the [minor]s need for prompt resolution of his custody status. (Marilyn H., supra, 5 Cal.4th at p. 309.)

Appellant points out that the juvenile court found changed circumstances. But in denying Vincents request, the juvenile court noted that he had not engaged in any services since reunification efforts were terminated. Thus, while the court acknowledged that Vincents circumstances had changed in some respects, in others he was in the same position as when reunification services were terminated.

Appellant also argues the evidence established that the minors best interests would be served by placing him with Vincent so the minor could have a relationship with his biological family. The juvenile court was not bound to accept appellants testimony to this effect, particularly since the foster placement was essentially the only home the minor had known, he had a strong relationship with the foster parents, and his contact with appellant and Vincent had been inconsistent.

For all of these reasons, we conclude the juvenile court acted within its discretion when it denied Vincents request for a modification of the juvenile courts previous order.

DISPOSITION

The juvenile courts orders are affirmed.

RAYE , J.

We concur:

DAVIS, Acting P.J.

MORRISON , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

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