In re Michael S.

Filed 10/18/06 In re Michael S. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Marilyn Mackel, Commissioner. Affirmed.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant Michael S.

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant Janet S.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Jeanette Cauble, Deputy County Counsel for Plaintiff and Respondent.

Michael S. and Janet S. appeal from the order of the juvenile court terminating their parental rights as to their son, Michael, and selecting adoption as a permanent plan. They also claim the court abused its discretion in denying their petitions for modification based on changed circumstances. We find no error and affirm the court’s orders

FACTUAL AND PROCEDURAL SUMMARY

In November 2003, 13-month-old Michael came to the attention of the Department of Children and Family Services (DCFS) when a man was found dead of a drug overdose in the family’s home. The parents agreed to drug test. Mother tested positive for methamphetamines and amphetamines and father tested positive for marijuana. A petition pursuant to Welfare and Institutions Code section 300^[1] was filed, alleging that mother had a long history of substance abuse, that father had a history of marijuana use, and that Michael’s siblings are dependents of the juvenile court due to mother’s drug use.

The detention report indicated that mother has seven children in addition to Michael. Two are dependents in long term foster care, and five have been adopted. The parents told the social worker that they had been drug free for several years but had taken drugs because they were devastated when a tenant in their home died from a heroin overdose. Michael was well cared for, the family had ample food supplies, and the house was relatively clean.

Michael was placed in foster care and the parents had monitored visitation. In December 2003, father was arrested for driving under the influence of alcohol or drugs, and in late January 2004, he was arrested for spousal abuse. Father tested positive for cannabinoids on two dates in January 2004, and missed three tests in February 2004. He subsequently sought in-patient treatment for depression and anxiety, and for drug addiction.

At the jurisdictional hearing in March 2004, the court sustained the petition as amended. The court ordered reunification services for father, and over DCFS’s objection, also ordered services for mother. Michael remained placed in a “Fost Adopt” home with an approved home study. The disposition case plan required parents to participate in drug rehabilitation with random testing, domestic violence counseling, parent education, and individual counseling.

According to the July 2004 report, father had entered a sober living home in March, and graduated from the program in July 2004. Father and mother were enrolled in a domestic violence program and were receiving individual counseling. Mother completed a chemical dependency program, and was participating in a 12-step drug program. The parents visited with Michael regularly. The visits were appropriate and progressed well. At the six-month review hearing on July 22, 2004, the court found the parents in compliance with the case plan, gave DCFS discretion to gradually liberalize visitation, and continued family reunification to January 2005.

The January 2005 report indicated that the parents visited regularly and that “their visits have improved tremendously. The parents are attentive to Michael’s needs, and they appear to get along better as a couple in front of their son.” The visits were liberalized to unmonitored, but returned to monitored because both parents missed drug screening on January 10, 2005. Parents were in marital counseling with Dr. Mark Berman, and were “cooperative, responsive, receptive, active, and punctual.” They were attending domestic violence counseling, had chosen to remain in their relationship, and were working diligently on their case plan. According to the social worker, the parents “are making positive progress and will eventually reunify with their son.” The court found the parents were in partial compliance with their case plan, and ordered further reunification services.

The report for the May 2005 hearing indicated that mother had been testing clean, but that father had a diluted test^[2] on January 24 and a positive test for cannabinoids on February 3. Father then returned to his sober living home. After both parents had four consecutive clean tests, unmonitored visitation was resumed. The parents would bring meals, toys and diapers for Michael to these visits. The visits were appropriate, and Michael showed no signs of distress upon returning from the visits. Michael appeared to be most comfortable with his father, but also was warming up to mother. Both parents completed their domestic violence counseling, and mother continued in the program voluntarily.

Father moved back into the family home in June, and the parents continued their counseling with Dr. Berman. Mother’s drug tests were negative, but father had another diluted drug test on May 31. In accordance with the court’s order, the social worker observed two visits between Michael and his parents. During the first visit, Michael greeted his mother with a hug and a kiss and was not apprehensive. He was more relaxed with his father. He played well, and seemed comfortable. The social worker criticized mother for giving Michael too many choices, and trying too hard to show the social worker that she was providing healthy snacks.^[3]

At the second visit, Michael was not feeling well and after eating, he vomited. The social worker admitted she was surprised that the parents worked together to help their son, without panicking. They cleaned him up and changed his clothing. Although they were disappointed that the visit needed to be terminated, they handled the situation very well. DCFS recommended that the court move toward a permanent plan for Michael.

At the June 21, 2005 hearing, DCFS and the parents reached an agreement: that the court set a section 366.26 hearing in 120 days, and that the parents be allowed weekend visitation after the father produced three consecutive clean drug tests. Counsel for Michael agreed with the plan, explaining that she felt it was important that before the court selected a permanent plan, it see how the parents can care for Michael for a period longer than two or three hours.

The court expressed its concern with the parents’ parenting skills, with the turmoil in the parents’ relationship, and with father’s recent relapses and diluted tests. The court ordered DCFS to arrange for “therapeutic day-care-like services to assist the parents in properly parenting the child. And that’s hands on with the child and parents. And that should occur immediately and during the un-monitored visits that are currently taking place, and after that, perhaps for a half day or day in the parent[s’] home. And subsequent to that, the over nights can begin as long as things are going well.” The court ordered that the therapeutic services begin “no later than July 13th. In the interim, the visits will take place as they are occurring, and the department is to notify county counsel immediately if there’s going to be a problem in getting these services in place in the Lancaster area . . . .” With that order, the court set the permanency planning hearing for October 20, 2005.

The social worker’s report for the October hearing indicated mother had three positive drug screenings for benzodiazepines, one each in July, August, and September. Mother informed the social worker the positive tests were due to her ingestion of medication prescribed for insomnia. The social worker had not received return calls from mother’s physician verifying this. Because of mother’s positive tests, DCFS did not liberalize visitation to overnight weekend visits.

Two days before the section 366.26 hearing date, mother filed a section 388 petition for modification, requesting that family reunification services be reinstated and asking that DCFS be ordered to comply with the orders of June 21. The court denied the petition insofar as it sought reinstatement of reunification services, and continued the matter for a report from DCFS on its failure to comply with the order for therapeutic day care.

Father then filed a section 388 petition seeking to have Michael placed in home of parent, or to have reunification services reinstated. The court denied the request without a hearing because the petition failed to state new evidence or change of circumstance, failed to show the requested change would be in the best interests of the child, and because father’s test results had not been consistently negative.

In the report for the November 22, 2005 hearing, the social worker addressed why the order for therapeutic services had not been implemented by July 13, as ordered by the court. The social worker had researched several programs for hands-on therapeutic parenting in the Lancaster and Antelope Valley area. These programs required that the child be placed in the parents’ home. Since Michael was in foster care, their services were not available nor applicable. On July 13, the social worker informed county counsel that the services were unavailable, but that information was not conveyed to the court.

The parents submitted to a random drug screening on November 4, 2005. Mother’s test was negative, but father had a diluted test. Mother’s doctor reported to the social worker that mother had been prescribed medication for chronic lower back pain and other problems.

The permanency planning hearing was continued to January 2006 due to court congestion. In the interim, the parents informed the social worker that they believed Michael was being abused in his foster home. According to the parents, Michael told them that his foster father spanked him with a belt for misbehavior. DCFS investigated the allegations, concluded they were unfounded, and closed the case.

The contested section 366.26 hearing took place as scheduled in January 2006. At the parents’ request, the court reconsidered their section 388 petitions, and again denied the requested modifications. The social worker and the parents testified. The court noted that there had been several extensions of reunification services, and that the parents had made substantial progress during the case, but there still remained problems which precluded returning Michael to his parents’ care. The court terminated parental rights and selected adoption as the permanent plan. Mother and father each filed a timely notice of appeal.

DISCUSSION

I

Father claims the court abused its discretion in summarily denying his section 388 petition for modification without a hearing.^[4]

A parent seeking modification pursuant to section 388 must make a prima facie showing to trigger his or her right to a hearing on the petition. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) The parent must show (1) a genuine change of circumstances or new evidence, and (2) that modifying the previous order will be in the best interest of the child. (Ibid.) “If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing.” (Ibid.)

Father failed to make the necessary showing. He filed his section 388 petition on November 22, 2005, seeking to set aside the order of June 21, 2005 terminating reunification services. The changed circumstances he alleged were that he “has maintained total and complete sobriety. He has tested free of drugs, continuously; completed all court-ordered counseling (see attached) and maintained consistent visitation, including unmonitored visits.”

These were not new or changed circumstances. The counseling had been completed before the June 21 order; father had been visiting Michael consistently throughout the course of the case; and his drug testing was essentially the same as it had been--mostly negative tests, with an occasional diluted test. The most recent diluted test was on November 4, just a few weeks before father’s petition.

Father also made no showing that the change in order would be in Michael’s best interests. Three-year-old Michael had been out of father’s custody for two full years at the time of the section 388 petition. Although he enjoyed his visits with father, he had formed a secure attachment to his foster parents, looked to them for comfort and support, and called them “mommy” and “daddy.” There was no evidence that it would be in Michael’s interest to further delay selection of his permanent plan in hopes that father would be able to reunify with him.

Father urges this court to consider his petition more in the light of an 18-month review hearing, rather than as a petition for modification. He argues that at the time of the 18-month review, DCFS had agreed to give the parents overnight visitation after they gave three clean drug tests. The court also ordered DCFS to implement therapeutic day-care-like services by July 13 to assist the parents in proper parenting skills. With the promise of these two services, the parents agreed to the setting of the permanency planning hearing in 120 days. Yet DCFS did not implement the therapeutic services, and overnight visits never occurred.

The therapeutic services were not implemented, but the parents did not bring this to the court’s attention in a timely fashion. Nor does father show that the lack of these services precluded him from reunifying with Michael. The overnight visits did not occur as a result of mother’s drug tests, not because of some lapse by DCFS. And father’s own testing in November included a diluted test, once again presenting a question about his sobriety.

On this record, the court did not abuse its discretion in denying father’s section 388 petition without a hearing.

II

At a section 366.26 hearing to select a permanent plan, if the court finds a child adoptable and finds that adoption is in the best interests of the child, it must terminate parental rights unless one of four specified circumstances is established. Mother claims the evidence established the applicability of section 366.26, subdivision (c)(1)(A): “The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” Father joins in this argument.

To satisfy this beneficial relationship exception, “the 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.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “[T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (Ibid., italics omitted.)

The evidence is undisputed that the parents maintained regular visitation and contact with Michael. The question is whether their relationship with Michael is of such a nature that severance would be detrimental to him.

The reports show that the parents performed parental duties during their visits. They brought nutritious food and snacks to the visits. They also brought diapers, clothing and toys. When Michael was sick during a visit, the parents acted appropriately in cleaning him up and changing his clothes. Michael was more comfortable with father than with mother, but seemed to enjoy his visits with both parents.

But there was no evidence that continuing the relationship with his parents would promote Michael’s well-being, or that severing the relationship would be detrimental. According to the social worker, Michael sometimes exhibited difficult behavior after visits with his parents. On those occasions, he became clingy and difficult to soothe, and wanted to be comforted by his foster mother. Asked how he thought Michael would react if visitation was terminated, father replied: “That I really couldn’t tell you because he has been away from us for two years and he has gotten the notion that Richard and Julie are his parents and so he is like a little torn between the four of us so I really wouldn’t know.”

Despite parents’ consistent visitation, they were unable to establish that continuing their parental relationship would be so beneficial to Michael that adoption should not be selected as his permanent plan.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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^[1] All statutory references are to this code.

^[2] The technician at the drug testing laboratory informed the social worker that “there is a certain level of Creatinine found in individual’s muscles, blood, and urine. When a person has consumed a large amount of water, the levels of Creatinine are altered and may show up in a drug screening. The technician informed this CSW that he could not conclusively say that when the compound has been altered a client is in fact trying to alter the results of a drug screening, but it is likely that the client is trying to mask some drug usage.”

^[3] The foster parents had criticized mother for bringing candy, soda and junk food to visits, and the court had lectured her about the need to read food labels so that she did not bring Michael foods with sugar. The court also instructed mother to avoid fried foods.

^[4] Father also challenges the denial of mother’s section 388 petition. He lacks standing to assert error as to mother’s rights (see In re Jenelle C. (1987) 197 Cal.App.3d 813, 818), and mother has not joined in the argument he raises.