In re Kayla M.

Filed 5/14/07 In re Kayla M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Marilyn Mackel, Temporary Judge. (Pursuant to Cal. Const., art VI,  21.) Affirmed.

Kimberly A. Knill, under appointment by the Court of Appeal, for Objector and Appellant.

Raymond G. Fortner Jr., County Counsel, Larry Cory, Assistant County Counsel, Jacklyn K. Louie, Senior Deputy County Counsel, and Patrick D. Goodman, Supervising Attorney, for Petitioner and Respondent.

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Katherine M. appeals from two orders in the dependency proceedings regarding her daughter Kayla: an order denying her Welfare and Institutions[1]Code section 388 petition and an order terminating parental rights under section 366.26. We affirm, as we explain:

This is the second appeal in this matter. In December 2006, we affirmed the trial court's denial of an earlier section 388 petition. We begin by briefly summarizing the facts from the inception of the case until the first section 388 petition:

The case was initiated in August of 2003, when Kayla was about two months old, after Katherine was arrested on drug-related charges. Katherine submitted on an amended petition which alleged, under section 300, subdivision (b), that her history of drug use and frequent use of methamphetamines rendered her incapable of caring for Kayla, and that her use of drugs in the home had established a detrimental and endangering home environment for Kayla. Kayla's father, who was a party to the last appeal but not to this one, submitted on allegations concerning his drug use.

Reunification services were ordered, and for a time, both parents did well. In March 2004, DCFS reported that Katherine and Kayla had a loving and nurturing bond and released Kayla to Katherine, who was living at a treatment program. However, by the following March, Katherine, who had completed her program and was living in an apartment with Father's mother and Father's sister, had lost touch with her probation officer and had missed drug tests. Father had lost touch with DCFS and missed drug tests. It later became clear that both parents relapsed into drug use in this period.

In April 2005, after Katherine left Kayla with Father and his mother for ten days, she re-entered residential drug treatment. An attempt to place Kayla with Father's mother failed, and DCFS detained Kayla, placed her with her original foster parents, and filed a section 342 petition, which was sustained. Reunification services were ordered.

In June, Katherine was discharged from her program for breaking a rule. After that, she visited Kayla and kept in touch with DCFS by phone, but did not give DCFS her address, and did not drug test. In August, Katherine entered a short-term program. In September, the court terminated reunification services and set the case for a section 366.26 hearing.

In December 2005, Katherine filed her first section 388 petition. She asserted that circumstances had changed because she was in compliance with her case plan and visited Kayla regularly. She attached proof that she had re-enrolled in her original program and tested negative for drugs, and that she had lived in a sober living facility since October. The trial court denied the petition, and, as noted above, we affirmed.

We turn now to the progress of the dependency in the next period, between December 2005 and termination of rights in October 2006.

Katherine, Father, and Kayla had weekly visits for almost all of that period. Katherine played games with Kayla, sang to her, and read to her. According to DCFS, Kayla had a "good on going relationship with her parents." The visits were always appropriate and always went well.

In January, Katherine got a job. Her employer found her very dependable, with a great attitude. In February, she enrolled in a substance abuse program which included weekly random drug tests. By August, she had completed that program and a parenting class. Father had also completed a treatment program which included random tests, and he and Katherine married.

Katherine's second section 388 petition, the one at issue here, was filed in May of 2006. She sought Kayla's return, or reinstatement of reunification services. Under change of circumstances, she alleged that she had been clean and sober for at least a year, and had completed a drug program. She had her own residence and had visited consistently. She alleged that the change in orders would be in Kayla's best interest because she and Kayla were bonded and because it was in Kayla's best interest to be raised by her biological mother. Father also filed a section 388 petition.

In April, the court ordered a bonding study. It took place in late August. The evaluator spoke to Kayla, both parents, and both foster parents, administered tests to Katherine, Father, and the foster parents, and observed Kayla with both sets of parents. He reported positively on all four of the adults, and reported that Kayla loved and was attached to all four, and was equally comfortable with all four. She referred to both her mother and her foster mother as "mother" and both her father and her foster father as "father." The evaluator wrote "Overall . . . there seems to be very little difference in terms of this child's comfort and security with all four adults. She clearly feels extremely comfortable with all of them . . . there seems to be an equal footing for all of them and it is not easy to distinguish her relationship as being any different from one adult to the other." He believed that "this child would do well with either set of parents and would not be damaged by being placed with either set."

Thus, until this point, the evidence would seem to suggest that Katherine would carry her burden on the section 388 petition.[2] However, in late August, the court ordered random drug tests for both parents, and on September 4, DCFS told both parents to call a specified telephone number every day, to learn whether a test was required. Neither parent tested, despite the fact that they were informed that a missed test would be deemed a dirty test.

At a September hearing, Father told the court that the testing facility was too far from his home. It was near his workplace, but was nonetheless inconvenient because it did not open until two hours after he finished his shift. The court responded that a change in test locations would cause too much delay, and advised Father to test at the original location. Notably, Father also told the court that he understood that a change in test locations would mean that he had to pay for the tests, and that he was willing to do so.

On October 6, DCFS reported that on October 2, Katherine told DCFS that she had missed a September 14 test because she had a doctor's appointment. DCFS confirmed that Katherine had a doctors' appointment that date, but reported that she could have tested before or after the appointment. DCFS also reported that Father had not started calling to find out about tests. He told DCFS that his work schedule would not allow it and that he did not have adequate transportation.

On October 20, the court combined the hearing on the section 388 petition with the section 366.26 hearing.

On direct examination, Katherine testified that she called the testing number every night, as instructed, and was first required to test on September 14. On that date, she took the two-hour bus ride from her home to her doctor, then a two-hour bus ride back to her own neighborhood, to her job. She was on a 30 day probation at work, and would have been fired if she had asked to miss work that afternoon.

Katherine also testified that she was supposed to test on October 19, but missed the test because she had no transportation. She had no money, and no friend who could drive her. Round trip bus fare was about five dollars.

On cross-examination, DCFS established that Katherine had never missed a test or had a dirty test while she was in drug treatment between February and August; that a friend or her mother-in-law drove her to visits and court dates; and that there was some money in her budget for entertainment.

Father similarly testified that he had not missed a test or had a dirty test while he was in drug treatment, or on parole. He began calling the toll free number in October, and learned that a test was scheduled for October 5. He tried to test on that date, but was unable to urinate.

The court denied the section 388 petitions and terminated parental rights.

On this record, we cannot find that the court abused its discretion by denying Katherine's section 388 petition. That is because the missed drug tests are suggestive of a relapse into drug use.

Katherine did, as she asserts, have excuses for the missed tests, but the trial court was entitled to disbelieve them. The evidence was that Katherine was able to test while she was busy with her job, her program, and her parenting class, casting doubt on her excuses for missing September and October tests. Her testimony that she could not afford bus fare was called into doubt by her testimony that she was able to afford some small luxuries and to obtain transportation to court and visits, and Father's testimony that he was able to pay for drug tests. Further, Father's missed tests, which suggest that he too had relapsed, are probative.

We recognize that Katherine and Kayla had a positive, bonded relationship, and do not "ignore[] all familial attachments . . .[or] devalue[] any interest of the child in preserving an existing family unit, no matter how, in modern parlance, 'dysfunctional.'" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530.) However, "At a hearing on a motion for change of placement, the 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. (1994) 7 Cal.4th 295, 317.) The missed drug tests speak volumes about Kayla's best interest.

Nor can we find an abuse of discretion in the order terminating parental rights. Katherine argues that the section 366.26, subdivision (c)(1)(A) visits exception applies.
"Section 366.26, subdivision (c)(1)(A), provides that if the juvenile court determines, by a clear and convincing standard, that it is likely a minor will be adopted, then it shall terminate parental rights and order the child placed for adoption unless the court finds a compelling reason for determining that termination would be detrimental to the child. One such reason is that the parent has maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship. . . . [T]he parent has the burden of showing either that (1) continuation of the parent-child relationship will promote 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] or (2) termination of the parental relationship would be detrimental to the child. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The parent has the burden of proving that termination would be detrimental to the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

We see no ground for reversal under either the abuse of discretion standard some courts have applied (i.e., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), or the substantial evidence review applied by other courts. (In re Fernando M. (2006) 138 Cal.App.4th 529, 514.)

Katherine argues, correctly, that she visited regularly and the visits were good ones. She also argues, correctly, that the psychological report on her relationship with Kayla was positive. However, once again, the missed tests are highly significant to the decision that termination would not be detriment to Kayla. Nor, for all his positive comments about Kayla's relationship with her parents, did the evaluator find that termination would be detrimental to Kayla. We thus affirm.

Disposition

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J. KRIEGLER, J.

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[1]All further statutory references are to that code.

[2]Contrary to DCFS's argument on appeal, there is no evidence that until this point, contact with Katherine was detrimental to Kayla. As DCFS argues, there is evidence that in April 2005, when she was first returned to her foster family, Kayla had difficulty sleeping and other problems, evidence of biting beginning in March 2006, and evidence that at one point after visits resumed, she wet herself after visits, although she was potty-trained. That is evidence that Kayla, like many children with interrupted or intermittent contact with a parent due to dependency or divorce, had difficulty with visits. There is no evidence that it was contact with her mother, rather than separation from her mother, which caused those problems.