In re M.M.

Filed 5/28/08 In re M.M. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. Introduction

Jennifer R., the mother of M.M., appeals from the juvenile courts orders denying her Welfare and Institutions Code section 388[1] petition to modify a court order and terminating her parental rights following a selection and implementation hearing held pursuant to section 366.26. Appellant contends the juvenile court erred in finding that she had not met her burden of establishing that reinstating services would be in M.s best interest and that the beneficial relationship exception to termination was applicable. We disagree, and hence affirm.

II. Factual and Procedural Background

M. came to the attention of the Contra Costa County Bureau of Children and Family Services (CFS) two days after he was born when the result of a toxicology screen was positive for amphetamines.

CFS filed an original petition pursuant to section 300, subdivision (b), alleging that appellant placed M.at substantial risk of harm due to her substance abuse.

M. was detained when he was five days old, and supervised visits were ordered.

At the jurisdictional hearing on November 22, 2005, appellant pled no contest to an allegation that she had a substance abuse problem which put the child at substantial risk to suffer serious physical harm or illness. An allegation that the minors father had failed to protect the minor from appellants substance abuse problem was reserved.

On November 29, 2005, an amended petition was filed alleging that on November 2, 2005, the minors father was arrested for possession of a controlled substance, receiving stolen property, theft, and possession of drug paraphernalia. The father admitted to the police that he had a drug problem and smoked methamphetamine.[2]

At the jurisdictional hearing for the father in December 2005, the petition was further amended, and the father pled no contest to the allegation that he had a drug problem which impaired his ability to care for and supervise M. An allegation that the father had failed to protect M. from appellant was dismissed.

In the report prepared for the dispositional hearing, the social worker stated that appellant had been provided with services including referrals to drug testing, drug treatment, and parenting classes. CFS had offered weekly visits between M. and his parents; the father had not visited at all and appellant had missed two scheduled visits. The report also stated that appellant had three older children who had been living with the maternal grandparents since August 2005 under a temporary probate guardianship.

On January 20, 2006, at the dispositional hearing, the court continued M. as a dependent and ordered family reunification services for appellant. Appellants reunification plan included counseling, parenting classes, an in-patient substance abuse treatment program, drug testing, and participation in a 12-step program. Services were not ordered for the father because he did not appear at the hearing to raise his status from alleged father to presumed father. Supervised visitation twice a month was ordered for both parents.

In a status review report dated June 9, 2006, CFS recommended that family reunification services for appellant be terminated and that the court order a hearing pursuant to section 366.26. Appellant had made no effort on her reunification plan, and visitation with M. remained inconsistent. Appellant did not visit M. from January 5, 2006, until March 7, 2006; thereafter she visited him twice in March, once in April, and once in May. M. had been placed in a concurrent home in March 2006. He was bonded to the family, and they had expressed interest in adopting him.

Appellant was not present at the contested six-month review hearing on August 2, 2006, but was represented by counsel. CFS reported that, since the June 9, 2006, report, appellant had missed two more visits with M. in July. Following testimony of the social worker, the court terminated appellants reunification services and set the matter for a hearing pursuant to section 366.26. The section 366.26 hearing was set for November 22, 2006.

On October 3, 2006, the father filed a petition for modification requesting presumed father status and reunification services. CFS opposed the requests primarily because the father had never been involved in M.s life. He had never visited M. or requested visits.

On October 25, 2006, the juvenile court granted the fathers requests and he was declared to be M.s presumed father. He was granted six months of reunification services. The court cancelled the section 366.26 hearing and set the matter for review of fathers reunification services on March 19, 2007.

CFS prepared a report for the March 19, 2007, review hearing. According to the report, M.s father had visited him only once, on November 27, 2006. After that time, the father did not respond to letters or telephone calls from CFS and had not contacted the social worker. M. continued to live with his concurrent foster parents who wanted to adopt him. The report also stated that on February 5, 2007, appellant had completed a residential drug rehabilitation program and had then returned to live with her parents and her three older children.

On March 27, 2007, the concurrent foster parents requested de facto parent status.

On April 4, 2007, appellant filed[3] a section 388 petition requesting that the court place M. in the maternal grandmothers home where appellant and her three older children were living and that appellant be given family maintenance services. In the petition, appellant alleged that she had successfully completed an in-patient substance abuse program, was currently enrolled in an outpatient program, was participating in individual counseling, had been drug testing and attending 12-step meetings, had completed a parenting class, and had been visiting with M. on a monthly basis.

CFS submitted a memorandum dated April 5, 2007, to update the juvenile court on recent developments in the case. The social worker reported that appellants counselor at the residential drug rehabilitation program was very positive about appellants participation in the program. The social worker also reported that appellant had attended one outpatient group in February but had not returned until late March. Finally, the social worker also reported that appellant had met with her individual therapist three times in January, but did not contact her again for an appointment until early April.

M.s foster parents submitted a letter dated April 13, 2007. They described M.s relationship with his foster brother and extended members of his foster family. M. had been in their home for 14 months, arriving when he was four months old. They also described milestones in M.s development and the progress he had made in overcoming a developmental delay. They described M. as thriving with them and bonded to their family, and asked the court to find that placing M. with their family was the most appropriate plan for him.

On April 16, 2007, when the matter came on for hearing, the court granted the foster parents de facto parent status. Following testimony and argument, the court denied appellants petition. Although the court found that appellant had done all she could since November to reunify, the court also found that appellant had failed to establish that it would be in M.s best interests to be returned to her. The court also terminated fathers reunification services and set the matter for a section 366.26 hearing on July 30, 2007. Appellant did not challenge this ruling.

On July 30, 2007, appellant filed a new section 388 petition again requesting that M. be moved to the maternal grandmothers home and appellants services be reinstated under a family maintenance plan. Appellant alleged that, since the last hearing on April 16, 2007, she had attended all visits with M., and that M. recognized her as his mother and would reach out for her to hug him. She also alleged that M. enjoyed the visits with her and his siblings, and that he would benefit from being raised with his birth mother and siblings. Appellant submitted documentation that she had completed outpatient treatment, was attending 12-step meetings, and was working.

CFS submitted a report for a section 366.26 hearing, recommending that parental rights of both parents be terminated and that adoption be selected as M.s permanent plan. The social worker documented the history of appellants visits with M. during the course of the dependency. Initially, appellant had weekly visits, but her attendance was sporadic and she was usually late. Reportedly, she held M. during visits but did not interact with him and was not affectionate with him. Appellant failed to confirm or did not appear for scheduled visits from January 11 until March 8, 2006. Appellant attended visits on March 8, March 22, April 12, and May 16, but failed to confirm or failed to show for visits on April 5 and May 3. CFS reported that appellant was appropriate and affectionate with M. on the April 12 and May 16, 2006, visits. Appellant did not visit M. in June, and cancelled her scheduled visit in July 2006. Appellant visited M. on August 30, 2006, but failed to confirm visits for September and October 2006. Appellant entered a residential treatment facility in November 2006, and had visited with M. once a month since then. The social worker observed that M.s responses to the visits had improved since January 2007. At the most recent visit in June 2007, appellant had played with M. and was attentive to him.

The social worker also reported that M. was an adoptable child who had been placed in a prospective adoptive home since March 1, 2006.[4] He had formed a strong reciprocal attachment to his prospective adoptive parents, and referred to them as mommy and daddy. The prospective adoptive parents had expressed a strong desire to adopt M. M. was thriving in their home and looked to them for stability, support, nurturing and love.

At the hearing on July 30, 2007, the court heard appellants section 388 petition before proceeding to the section 366.26 hearing. Appellant testified that, since the hearing in April, she had had monthly one-hour visits with M. She had telephoned the social worker to request more visits, but her request was denied. Appellant testified that at the visit in May, M. was happy to see her and reached out to her from his car seat. She felt that, with each visit, M. had become more affectionate. She testified that M. had said mommy to her at the June visit. Appellant testified that she could tell when M. looked at her that there was a family bond. She believed M. needed her to comfort him and raise him, and that he should have the chance to grow up with his family.

Following her testimony and the arguments of counsel, the court denied appellants section 388 request, finding that there had not been enough of a showing that it was in M.s best interests to be removed from his prospective adoptive parents and placed with someone who was almost a stranger, someone who hes visited with and had a good time with a few times in his life.

The court then heard brief testimony for the section 366.26 hearing. Following arguments of counsel, the court found that M. was adoptable and that none of the exceptions to termination of parental rights was applicable.

Appellant timely filed a notice of appeal.

III. Discussion

A. Denial of Appellants Section 388 Petition

Appellant contends the juvenile court erred in denying her petition to return M. to her care under a plan of family maintenance services in the maternal grandmothers home. She argues that she demonstrated changed circumstances and that it was in M.s best interests to be placed with her.

Section 388 provides in 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 circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of the court previously made . . . . ( 388, subd. (a).) The petitioner must show by a preponderance of the evidence either new evidence or changed circumstances and that the proposed modification is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

Section 388 provides 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. (In reKimberly F. (1997) 56 Cal.App.4th 519, 528 (Kimberly F.), citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, when a request for modification, as here, comes late in the proceedings following the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability (In re Marilyn H., at p. 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. ([Id.] at p. 302.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

We review a juvenile courts order denying a modification petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th at 398, 415.) When two or more inferences reasonably can be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the juvenile court. (In re Stephanie M., supra, 7 Cal.4th at p. 319.) 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.)

The childs best interests is a complex concept that requires a juvenile court to consider a number of factors that will vary according to each childs needs and circumstances. In evaluating whether a petitioner has met his or her burden to establish changed circumstances, the juvenile court should weigh (1) the seriousness of the problem that led to the dependency and the reason for any continuation of that problem or, alternatively, the reason the problem was not overcome prior to the section 366.26 hearing; (2) the strength of the relative bonds between the dependent child and both caretakers and parents, which in turn is affected by the length of time the child has been in the dependency system; and (3) the degree to which the original problem may be easily removed or ameliorated, and the degree to which it actually has been. (Kimberly F., supra, 56 Cal.App.4th at pp. 530-532.) 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. (Id. at p. 532; see also In re Amber M. (2002) 103 Cal.App.4th 681, 685.)

Here, the record shows that the court did not abuse its discretion in denying appellants petition. M. entered the dependency system because appellant used methamphetamine during her pregnancy and he was born with the drug in his system. Drug abuse is not a problem that is easily ameliorated. During the reunification period, appellant did not avail herself of any services and made no progress on her case plan. Had the original permanency planning hearing been held as scheduled in November 2006, it appears likely that appellants parental rights would have been terminated at that time.[5]

Documents attached to appellants petition establish that appellant completed an in-patient substance abuse program in February 2007 and that she completed an outpatient program on July 26, 2007. At the hearing, the juvenile court acknowledged her significant progress in addressing her drug problem and making positive changes in her life. We echo this sentiment, but also note that, at the time of the hearing, appellant was only four days into maintaining sobriety outside the supportive environment of a treatment program.

Regarding the strength of the relative bonds between M. and both his foster parents and appellant, M. was 21 months old and had never been in the care of appellant. The juvenile court noted that, when he was detained, M. had no relationship at all with appellant and that he had had only very limited contact with her during his life. On the other hand, M. had spent the past 17 months in his concurrent home, thriving in the care of his prospective adoptive parents. The section 366.26 report stated that M.s prospective adoptive parents had formed a strong and loving reciprocal relationship with him, and that M. looked to them for stability, support, nurturing, and love. The court focused on M.s need for permanence and stability, as was appropriate at that stage of the proceedings. (In re Stephanie M., supra, 7 Cal.4th at p. 319.) In sum, even if appellant showed genuinely changed circumstances, there is ample evidence that the juvenile court reasonably concluded that a change of placement was not in M.s best interests. (Kimberly F., supra, 56 Cal.App.4th at p. 529 [It 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.].)

Appellants reliance on Kimberly F., supra, is unavailing. There, the problem that led to the dependency was a cluttered and unsanitary home; the children were seven and ten years old and had lived with their mother and two other siblings for most of their lives; and there was an undisputedly strong bond between the children and their mother. (56 Cal.App.4th at pp. 522-523, 532.) Here, by contrast, and as appellant acknowledges, substance abuse and addiction are very serious matters. Moreover, M. had never lived with appellant and any bond between them was fairly described as limited. Appellants arguments that CFS provided no evidence that she had not overcome her substance abuse problem, that M.s bond with his foster parents could be discounted because of his young age, and that the importance of maintaining the biological family unit must be heavily weighted amount to no more than asking this court to reweigh the evidence, which we cannot and will not do.

B. The Order Terminating Parental Rights

At the section 366.26 hearing, the court must select and implement a permanent plan for the dependent child. Adoption, where possible, is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Section 366.26, subdivision (c)(1), provides that [i]f the court determines . . . it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. An exception is made if the court finds a compelling reason for determining that termination would be detrimental to the child [because] . . . [] (i) [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B) [the beneficial relationship exception]; In re Clifton B. (2000) 81 Cal.App.4th 415, 424.) It is the parents burden to demonstrate the applicability of this exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.); Autumn H., supra, 27 Cal.App.4th at p. 574.)

Appellant does not challenge the juvenile courts finding that M. was adoptable. Rather, she contends the evidence she presented was sufficient to establish that M. would benefit from continuing their relationship and that the court should not have terminated her parental rights. She also contends that courts interpreting the beneficial relationship exception, specifically Autumn H., supra, 27 Cal.App.4th 567 and In re Beatrice M. (1994) 29 Cal.App.4th 1411 (Beatrice M.), have misconstrue[d] the plain meaning of the statute and have created an unduly restrictive standard for applying the exception. She argues that [i]t is lacking in logical relation to create a standard where the court can deem a close, affectionate parental bond insufficient and require proof of a parental relationship after the parent is no longer permitted to play such a role.

In Autumn H., the court considered the standard a court should use in deciding whether to apply the section 366.26, subdivision (c)(1)(B), exception. The court observed that [i]nteraction between natural parent and child will always confer some incidental benefit to the child, but that the exception only applies where 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. 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. (Autumn H., supra, 27 Cal.App.4th at p. 575.) In Beatrice M., supra, the court agreed with that analysis and determined that frequent and loving contact with their children was not enough to establish the beneficial relationship exception when the parents had not occupied a parental role in relation to them at any time during their lives. (29 Cal.App.4th at pp. 1418-1419.)

Appellants argument, that the standard articulated in Autumn H. and Beatrice M. permits the court to disregard a close, affectionate parental bond, is circular. It is precisely a parental bond that the parent must establish in order to overcome the strong legislative preference for adoption as a permanent plan. Emphasizing this point, in 1998 the Legislature revised section 366.26, subdivision (c)(1), to require the court to find not only that one of the listed circumstances exists, but also that it provide a compelling reason for determining that termination would be detrimental to the child. (Stats. 1998, ch. 1054, 36.6.) This amendment . . . makes it plain that a parent may not claim entitlement to the exception provided by subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights. (Jasmine D., supra, 78 Cal.App.4th at p. 1349.)

Several courts have considered and rejected the argument appellant makes here, that Autumn H. and Beatrice M. misconstrued the statute and erred in requiring the parent to demonstrate that he or she stood in a parental role for the exception to apply. (See, e.g., Jasmine D., supra, 78 Cal.App.4th at pp. 1347-1350; In re Brittany C. (1999) 76 Cal.App.4th 847, 854; In re Casey D. (1999) 70 Cal.App.4th 38, 50-52; In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.) We agree with the reasoning in those cases and find them persuasive. We further note that the Autumn H. standard has been repeatedly cited and followed by the courts of this state for more than a decade. (See, e.g., In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235 [4th Dist.]; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450 [2d Dist.]; Jasmine D., supra, 78 Cal.App.4th at p. 1349, and cases cited therein [1st Dist.]; In re Brittany C., supra, 76 Cal.App.4th at pp. 853-854 [6th Dist.]; In re Casey D., supra, 70 Cal.App.4th at p. 51, and cases cited therein [4th Dist.]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342 [5th Dist.].)

Appellant next argues that, even under the standard set forth by these cases, her showing was sufficient to establish the beneficial relationship exception. Appellant contends that, after an inconsistent start, she attended every visit she was permitted to have, and that the bond between M. and appellant was strengthening. Appellant testified that M. was happy to see her, that he came to her freely and reached out for her, and that he said, mommy.

Substantial evidence supports the trial courts conclusion that M.s need for a permanent, stable home outweighed any benefit to him from a continued legal relationship with appellant. Factors to be considered in making this determination include [t]he age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs . . . .  (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206, quoting Autumn H., supra, 27 Cal.App.4th at p. 576.) M. never lived with appellant. He was detained when he was several days old. At the time of the section 366.26 hearing in July 2007, he had lived with his foster parents for 17 months of his 21 months, and it was undoubtedly the only home he knew. Although the evidence established that M. had a positive relationship with appellant and that the visits had been improving since January 2007, this does not change the fact that the relationship was built on supervised visits that took place once a month for an hour, visits that had only been consistently taking place since November 2006. The social worker observed that appellant was appropriate with M. but that these visits were playtime for him. In her opinion, M. did not have a parent-child relationship with appellant. In contrast, the evidence showed that M. was bonded to the foster parents, that they had provided for all of M.s needs in the time he had lived with them, and that they wanted to adopt him if he were freed for adoption.

The requirement that the parent seeking to avoid termination of parental rights must prove that the child would be greatly harmed must be viewed in the context of the dependency law, whose purpose is to protect children who have been abused, neglected or exploited by their parents. (In re Brittany C., supra, 76 Cal.App.4th at p. 853.) On this record, appellant has failed to show that M. would be greatly harmed. She has not met her burden of demonstrating that her relationship with M. promotes M.s well-being to such an extent that it outweighs the benefit to M. of being adopted into a secure and permanent home.

IV. Disposition

The orders appealed from are affirmed.

_________________________

Haerle, Acting P. J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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

[2] The father has filed no appeal in this matter.

[3] The file stamp date of April 4, 2006, is plainly an error. The petition is also stamped as received by the clerk of the court on April 4, 2007.

[4] The report states that M. had been in his current placement since May 1, 2006, but this appears to be incorrect. Other documentation in the record establishes that he was placed in the concurrent home in March 2006.

[5] As previously noted, the section 366.26 hearing was taken off calendar when the father came forward and requested services in October 2006.