In re Delila S.
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
In re DELILA S., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DIANNA S., Defendant and Appellant. | D049233 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.
Dianna S. appeals a judgment terminating her parental rights to her minor daughter Delila under Welfare and Institutions Code section 366.26.[1] Dianna contends the court erred by denying her section 388 petition for modification seeking to have
Delila returned to her custody with family maintenance services. Dianna also challenges the sufficiency of the evidence to support the court's findings that Delila was adoptable and the beneficial parent-child relationship exception did not apply to preclude terminating parental rights under section 366.26, subdivision (c)(1)(A). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2004, the San Diego Health and Human Services Agency (Agency) filed a petition in the juvenile court on behalf of six-month-old Delila under section 300, subdivision (b). The petition alleged Dianna admitted to using methamphetamines, did not have a stable residence and suffered from a long history of drug use. It further alleged Dianna failed to provide medical treatment to address Delila's diaper rash and bronchitis.
In her interview with social workers, Dianna admitted she abused methamphetamines for several years and to having lived a transient lifestyle. Dianna frequently left Delila in the care of friends or relatives and acknowledged she had neglected Delila's medical needs. The social worker noted at the time the Agency filed a petition on behalf of Delila, she suffered from bronchitis and a severe diaper rash. The social worker believed Delila would be placed at substantial risk of harm if she remained in Dianna's care. After considering the reports of the social worker, the court directed that Delila be detained in out-of-home care and ordered services for Dianna.
According to the jurisdiction and disposition report, social workers provided Dianna with referrals for substance abuse treatment programs and parenting classes. Social workers also encouraged Dianna to enroll in the Substance Abuse Recovery Management Program (SARMS). Although Dianna had expressed her wish to reunify with Delila, she had yet to participate in any services before the jurisdiction and disposition hearing. Dianna instead continued to abuse drugs and admitted to the social worker she was using " a lot" of marijuana. Delila remained in out-of-home care. Delila's severe diaper rash and bronchitis had been treated although she continued to suffer from breathing difficulties. The social worker reported Delila's immunizations were not current when she was taken into custody. She had since received her updated immunizations.
Dianna did not appear at the contested jurisdiction and disposition hearing. The court's previously issued bench warrant for Dianna remained outstanding. The court sustained the allegations of the petition, declared Delila a dependent, placed her in a licensed foster home and ordered Dianna to participate in reunification services.
During the next six months, Dianna remained noncompliant with court ordered services. Dianna did, however, regularly visit with Delila. Before the six-month review hearing, Dianna enrolled in a residential drug treatment program and she submitted to a psychological evaluation. She told social workers she realized she had wasted five months in the reunification process and was now motivated to participate in a recovery program. The Agency recommended Dianna receive an additional six months of services. The court held a six-month review hearing and found Dianna had not made substantive progress with her case plan. The court agreed with the Agency's recommendation and continued reunification services for another six months.
In the months leading up to the 12-month review hearing, Dianna entered a drug treatment facility. Shortly thereafter, she relapsed and self reported that she used methamphetamines. Dianna served two days in jail for violating a court order requiring her to remain sober from drug use. Subsequently, she entered into another treatment facility late January 2005. Dianna did not appear at her
The social worker recommended the court terminate reunification services. The reasons leading up to Delila's removal were serious primarily because Dianna's long-term drug abuse and transient lifestyle resulted in the neglect of Delila's medical needs. Although it was clear Dianna loved Delila, Dianna's attitude toward reunification and her repeated drug relapses made her incapable of parenting Delila. After reviewing the Agency's reports, the court found Dianna had made minimal progress with her case plan. It terminated reunification services and set a section 366.26 selection and implementation hearing.
In a November 2005 section 366.26 assessment report, social worker Takeshi Oho reported Delila was in very good health and developmentally on target. Oho believed Delila was very adoptable. Delila was doing well in her current placement and her caregivers were committed to adopting her. Oho further believed Delila did not share a parent-child relationship with Dianna and it would not be detrimental to Delila to terminate Dianna's parental rights. Oho noted Delila referred to her foster mother as " Mommy" and looked to her foster mother to meet her emotional and medical needs. In the event the caregiver was unable to adopt Delila, there were 46 other approved adoptive families interested in a child like Delila.
The section 366.26 report detailed visits between Dianna and Delila. Oho noted Dianna maintained regular, supervised visits with Delila. Dianna was very affectionate and would hug and kiss Delila. Delila would also greet Dianna by giving her a hug. Dianna would bring toys and books for Delila to play with and often sat with Delila in her arms for the entire visit. However, during one visit, Dianna admitted she had used drugs the day before and was coming down from her high. At the conclusion of visits, Oho observed Delila did not show signs of distress when leaving Dianna.
After granting several continuances, the court rescheduled the section 366.26 hearing for April 2006. Before the hearing, Dianna filed a section 388 petition for modification, seeking to have Delila returned to her custody with family maintenance services. In support of her petition, she alleged she had participated in a residential drug treatment program and remained sober for more than 15 months. She further alleged she had completed an extensive parenting program and had been working at the same place of employment for about nine months. Dianna stated it would be in Delila's best interests to be returned to her because they were bonded and Delila deserved to be raised by her biological mother.
The Agency submitted an addendum report reviewing Dianna's current circumstances and Delila's current placement. Oho reported Dianna last tested positive for methamphetamines in June 2005. As far as her visits with Delila, Oho believed Delila enjoyed visiting with Dianna. Dianna would bring Delila food and played with Delila for most of the visit. However, Delila was not sad when the visits ended. Delila had lived with her caregiver for about two and a half years and looked to her caregiver for comfort, security and for her emotional needs.
In June 2006, the court proceeded to hear evidence on Dianna's section 388 petition for modification and the section 366.26 selection and implementation hearing.
The court heard testimony from several witnesses. Michael Doiley worked as a project manager at Dianna's place of employment. He testified Dianna was a responsible employee and had a strong work ethic. He rated her work performance as average to excellent and commented she was a role model to other employees. In addition, Karla Lomiglio from Welcome Home Ministries testified Dianna had made tremendous progress, remained sober for the last year and a half and had secured a job. Lomiglio was unaware Dianna had relapsed in June 2005 and admitted Dianna had never lived independently outside of a drug treatment facility.
SARMS drug court specialist Mary Koziorowski testified she began working with Dianna in September 2004. Koziorowski stated Dianna did suffer a drug relapse in June 2005 but since that time, she maintained her sobriety. Dianna successfully completed the
drug court program and was currently involved with a relapse prevention program. Koziorowski believed Dianna would maintain sobriety because she had shown tremendous growth since first starting the drug court program. However, Koziorowski admitted Dianna had been one of her more difficult clients and required a higher level of structure and testing to stay focused with the rehabilitation process. Dianna had abused methamphetamines for more than 10 years. Koziorowski believed Dianna's risk of relapse would increase once Dianna left the rehabilitation facility. Dianna currently lived in a sober living home that Koziorowski considered to be a monitored environment.
Dianna testified she had lived at the Serenity House for more than one year and successfully completed the rehabilitation program. Upon completion, she moved into a sober living complex called Serenity Palms. Minors were allowed to live at Serenity Palms and Dianna paid rent to live there. She had found a job and had worked at the same place of employment for about 11 months. Dianna testified she was enrolled in a 12-step recovery program and currently was on step four. Concerning individual therapy, Dianna had participated in a couple of sessions with a therapist. A treatment counselor from Serenity House, Marjorie Sanchez, also testified to Dianna's participation in therapy and counseling. Dianna had participated in informal counseling sessions with Sanchez but Sanchez did not conduct individual therapy sessions. Sanchez believed Dianna participated in therapy sessions in 2005, but at some point Dianna discontinued the sessions. Dianna currently was not in therapy and Sanchez could not guarantee Dianna would not relapse into drug use again.
Social worker Oho testified consistently with his report, stating he believed Dianna had made progress but that her circumstances were still changing. Dianna had moved out of the residential treatment facility. She continued to live at a sober living facility and was looking for her own housing. Oho believed relapse was a concern because it was too early to be certain whether Dianna would be able to handle the stress of living on her own while caring for a child. Oho further believed more than a year of Dianna's sobriety was minimal in comparison to 13 years of drug addiction. Further, Dianna had not completed individual therapy and only recently enrolled in an after care program.
As to Delila's best interests, Oho testified Delila had lived most of her life with her current caregiver and saw her caregiver as her mother. Dianna had recently progressed to unsupervised visits but the visits remained on site and Dianna was not permitted to take Delila to another location. Oho observed Delila showed more affection toward her caregiver than Dianna and looked to the caregiver for comfort and support. Delila did not cry or ask to stay longer with Dianna at the end of visits and instead cried when she had to leave her foster home.
After considering evidence and hearing arguments, the court found circumstances were changing but had not changed and denied the section 388 petition for modification. As to the issues for the selection and implementation hearing, the court found Delila was likely to be adopted and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating Dianna's parental rights. The court terminated parental rights and referred Delila for adoptive placement.
DISCUSSION
I
Dianna contends the court erred by denying her section 388 modification petition to have Delila returned to her with family maintenance services. Dianna asserts she showed circumstances had changed and returning Delila to her custody would serve Delila's best interests because they were bonded together.
A
Under section 388 a parent may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) When two or more inferences reasonably can be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M., at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.
When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child " stability and continuity." (Id. at p. 317.) The need for stability and continuity " 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.) Thus, after the court terminates reunification services, " there is a rebuttable presumption that continued foster care is in the best interests of the child." (Ibid.)
In support of her petition Dianna claims circumstances had changed after the court terminated reunification services because she had participated in a residential drug rehabilitation program and had remained sober for 15 months. She further claims she has maintained stable employment. Admittedly, Dianna has achieved more than one year of sobriety. However, throughout the reunification period, Dianna did not consistently participate in services or remain drug-free. This coupled with Dianna's recent sobriety in light of her 13-year history of methamphetamine abuse and prior unsuccessful attempts at rehabilitation reunification services showed her circumstances were merely " changing." Further, although Dianna had secured employment, she remained in a relapse prevention program. She continued to live in the confines of an independent sober living facility and had yet to experience living on her own without the benefits and support of a structured environment. In addition, she has not engaged in a substantial amount of individual therapy. A petition that alleges merely changing circumstances does not promote stability for the minor or the minor's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Casey D., supra, 70 Cal.App.4th at p. 47.)
Even had Dianna shown changed circumstances, she did not show returning Delila to her custody or providing family maintenance services were in Delila's best interests. After termination of reunification services, the focus of dependency proceedings is to provide the child with permanency and stability. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256; In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The problems that led to the dependency were serious. Dianna had abused methamphetamines for many years, suffered numerous relapses, and she lived a very transient lifestyle leaving Delila in the care of friends and relatives. As a result, Dianna failed to adequately provide medical treatment for Delila. At the time of the section 388 hearing, Delila had been out of Dianna's custody for most of Delila's life. During the dependency period, Dianna had just started unsupervised visits but even these visits were held in a controlled environment. Although Dianna had appropriate visits with Delila, their relationship did not outweigh the stable and long term relationship Delila had with the caregiver she called " Mommy." It was not in Delila's best interests to postpone implementing a permanent plan of adoption. The court acted within its discretion by denying Dianna's section 388 modification petition.
II
Dianna challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts she maintained regular visitation and contact with Delila who would benefit from continuing the parent-child relationship.
A
We review the court's finding the beneficial relationship exception does not apply under the substantial evidence standard. (In re Casey D., supra, 70 Cal.App.4th at p. 53; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D., supra, 70 Cal.App.4that p. 52.) Rather, we " accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
" Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it
must select adoption as the permanent plan unless it finds termination would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1)
(A)-(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if termination of parental rights would be detrimental to the child because " [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase " benefit from continuing the relationship" to refer to a " parent-child" relationship that " 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 parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) " Interaction between natural
parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
Although Dianna regularly visited Delila, she did not show the relationship she had with Delila was sufficiently beneficial to outweigh the benefits of adoption. During visits, Dianna brought Delila food, toys, and played with Delila for most of the visit. Delila appeared comfortable during visits and was familiar with Dianna. Dianna sometimes displayed signs of affection. Delila, however, did not show signs of distress when the visits ended. Delila instead cried when leaving her foster mother and referred to her foster mother as " Mommy." Delila frequently displayed more affection toward her foster mother than to Dianna and looked to the foster mother for everyday physical and emotional needs. In the social worker's opinion, Delila did not have a beneficial parent-child relationship with Dianna and their relationship did not outweigh the benefits of a
permanent home. The social worker instead noted Delila viewed her caregiver as a parent. The court was entitled to find the social worker's opinion credible and give great weight to his assessment. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at p. 53; cf. In re Amber M. (2002) 103 Cal.App.4th 681, 690.)
In addition, to establish the section 366.26, subdivision (c)(1)(A) exception, Dianna needed to show evidence that terminating parental rights would likely cause Delila great harm and deprive her of a substantial, positive emotional attachment to Dianna. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although Delila enjoyed spending time with Dianna, the relationship did not benefit Delila enough to outweigh her need for the permanence and stability of adoption. Because Delila's everyday needs could not be met by Dianna, she deserves to have her custody status promptly resolved. After balancing the strength and quality of the parent-child relationship against the security and sense of belonging to a new family would provide Delila, the court found the
preference for adoption had not been overcome. " To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Substantial evidence supports the court's finding the beneficial parent-child relationship did not apply to preclude terminating Dianna's parental rights.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
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[1] Statutory references are to the Welfare and Institutions Code.
