In re E.W.

Filed 4/5/07 In re E.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Tiffany N. North, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minor.

Appellant Stacey R. (mother) appeals from a Welfare and Institutions Code section 366.26^[1]order terminating her parental rights to her daughter, E.W. (born in April 2005) (the child). Mother argues that the order should be reversed because the juvenile court abused its discretion in denying her section 388 petition. We affirm.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

When the child was a few days old, the Riverside County Department of Public Social Services (the department) took her into protective custody, placed her in a licensed shelter home, and filed a section 300 petition on her behalf. The petition alleged that the child came within the provisions of section 300, subdivision (b) (failure to protect), in that there was a substantial risk the child would suffer serious physical harm because mother abused controlled substances. Her substance abuse problem was evidenced by her testing positive for methamphetamine at the time of the childs birth, her admission that she had been smoking methamphetamine for the past year, and two convictions in Arizona for driving under the influence. Furthermore, mother neglected the childs safety by neglecting to have regular prenatal care and using controlled substances while pregnant. The child also tested positive for methamphetamine at birth.^[3]

A detention hearing was held on April 6, 2005. The court placed the child in the temporary custody of the department and detained her in foster care. The court ordered visitation to be twice per week, as directed by the department.

Jurisdiction/Disposition

The social worker prepared a jurisdiction/disposition report recommending that the child be declared a dependent of the court and that mother be provided with reunification services for six months. The social worker attached a case plan for mother, which required her to submit to random drug testing and to participate in a substance abuse treatment program, a parenting education program, and counseling. Mother was also required to keep the social worker informed of any changes in her residence, within 72 hours of the change. The social worker reported that mother had a two-hour visit with the child on April 21, 2005.

The court found that the child came within section 300, subdivision (b), declared the child a dependent, and placed the child in the care, custody, and control of the department. The court ordered mother to participate in the case plan. The court advised mother that the provision of reunification services would not exceed the statutory timeline of six months.

Six-month Status Review

The social worker prepared a status review report in which she recommended that mothers reunification services be terminated and that a section 366.26 hearing be set. The social worker reported that mother was provided with referrals for substance abuse assessment, treatment, and/or testing on April 14, 21, 22, 26, and June 30, 2005. She was provided with referrals for parenting classes on April 14 and 26, May 31, and June 22, 2005. On June 30, 2005, mother told the social worker that she was enrolled in a drug treatment program in Temecula, but had not started it yet. Then, on July 6, 2005, she again stated that she would be attending a substance abuse program, as well as a parenting class. However, as of the date of the status report (November 22, 2005), mother had not complied with any of her case plan requirements. The social worker noted that mother could not be given counseling until she had stabilized in a substance abuse program.

Regarding visitation, visits with the child were scheduled weekly. However, when mother failed to visit for two consecutive weeks, she was instructed to call to set visits up. The social worker did not receive any calls from mother to set up visitation. She had no working cell phone number for mother and no address to locate her. Mother did have one visit on July 5, 2005, for 1 hour and 20 minutes.

During the week of July 15, 2005, mother called the social worker five times, stating that she wanted a couple in San Francisco to adopt the child. The social worker explained the dependency process, but mother seemed to ignore her. On July 18, 2005, the social worker talked to mother and questioned why she had not attended drug treatment or been drug tested yet. The social worker suggested residential treatment for her. After that day, the social worker did not hear from mother for nearly two months, and she had no telephone number or address for her.

On August 1, 2005, the social worker had a visit with the child and the foster mother. The social worker noted that the child looked adorable, was gaining weight, and seemed to be on task developmentally. The social worker commented that the child was thriving in the foster mothers care. The foster mother said she was bonded with the child and expressed an interest in adopting her.

On September 5, 2005, mother left the social worker a voice mail, telling her that she was in jail in Riverside, waiting to be extradited to Tennessee. The social worker tried to contact mother several times at the jail, but the telephone was busy. The social worker finally talked to someone at the jail on September 20, 2005, and found out that mother had been picked up in Riverside on a fugitive from justice warrant. Her original charge was for drug possession with intent to sell. She was incarcerated in Riverside from August 23, 2005, until September 7, 2005, when she was extradited to Tennessee.

On September 16, 2005, mother left the social worker a voice mail saying that she was in Nashville, but was now out of jail. On September 26, 2005, mother left the social worker another voice mail from Illinois. She did not tell the social worker what she was doing there and did not leave an address or working telephone number.

On October 17, 2005, mother left the social worker another voice mail. This time, mother said she was against adoption and wanted to reunify with the child instead. Mother said she was living in Tennessee, but was moving to Illinois. She again did not leave a telephone number. However, she called back the next day and said that she was in jail in Tennessee, that she was going to be released on October 26, 2005, and that she was going into a mandatory 18-month substance abuse program. On November 2, 2005, the social worker left a message at the treatment facility where mother was supposed to check into; she never received a call back. Mother was admitted to the program on November 9, 2005. She was required to stay in the program or else be incarcerated again. The social worker learned that mother was pregnant, and her baby was due in February 2006.

On October 31, 2005, the social worker conducted an in-home visit with the child. The foster mother was cooking dinner when she arrived. The social worker noted that the house was very orderly, as usual. The social worker watched the foster mother feed the child, noting that the child was very sweet and had a calm demeanor.

The six-month review hearing was held on December 13, 2005. The court found that the department provided reasonable services to mother, but that she had failed to make reasonable progress. The court terminated mothers reunification services and set a section 366.26 hearing for April 13, 2006.

Preliminary Adoption Assessment

On February 15, 2006, a home visit was completed with the prospective adoptive mother, with whom the child had been placed since she was released from the hospital after birth. The adoption assessment included interviews with the prospective adoptive mother and the other children living in her home. The prospective adoptive mother had been a licensed foster parent for almost 21 years, at that point. She was 55 years old at the time of the assessment. She previously adopted 10 children who were originally placed with her in foster care. The adopted children ranged in age from 2 to 19 years old. Three of them lived outside of the family home, and the other seven remained in the home. The social worker observed that, despite the large number of children in the home, all the children appeared to be well cared for and happy, and the household appeared to be functioning well.

The social worker noted one concern. The Riverside County Child Protective Services (CPS) received a referral alleging general neglect with regard to one of the prospective adoptive mothers adopted daughters. The prospective adoptive mother was asked to have her daughters eyes evaluated because she failed an eye exam at school. The prospective adoptive mother did not respond to the schools attempts to follow up. The referral did not meet the criteria for CPS intervention. The social worker was not able to reach the prospective adoptive mother to discuss this referral.

The prospective adoptive mother stated that she desired to provide a stable, loving home for the child. She has had the child since the child was two days old, so she knew the childs wants and needs. She thus felt she could provide the best care for the child. The prospective adoptive mother said she was attached to the child, and the child was attached to her and her family.

The social worker observed that the child was very attached to the prospective adoptive mother and her other children. The child smiled, laughed, and vocalized while playing with the other children and appeared to be a happy little girl. The social worker interviewed the other children, and they all expressed how much they liked the child, and that the child was happy in the home; they all wanted the prospective adoptive mother to adopt the child.

The prospective adoptive mother said she loved children and wanted to adopt at least one more after the child. The social worker was concerned about her financial stability, though. The prospective adoptive mother was working part time providing services to an elderly man. The man passed away in May or June 2005, and the prospective adoptive mother had unsuccessfully attempted to secure another similar position since then. Since that time, she had only worked providing child care for her granddaughter. She received housing assistance to help pay her rent and received money for each of the adopted children in her home. The social worker noted that, although there was concern about financial stability, she observed that all of the children in the home appeared to be well cared for and dressed appropriately; there was no indication that their basic needs were not being met. The social worker recommended that adoption proceedings continue for the child.

Section 366.26 Report

The social worker filed a section 366.26 report on April 3, 2006, recommending that the court terminate the parental rights of mother and father. The social worker reported that the child had not had any contact with mother since July 18, 2005. The social worker recommended the termination of parental rights because there appeared to be no relationship between the child and her parents, and the child was thriving in her placement.

Section 388 Petition

On June 13, 2006, one day before the continued section 366.26 hearing, mother filed a section 388 petition. As changed circumstances, mother alleged that she: 1) completed an inpatient substance abuse program; 2) drug tested negatively a minimum of seven times; 3) completed a parenting program; 4) [p]er probation orders, [she] immediately enrolled in a treatment program (apparently referring to the treatment program she completed); 5) had the financial means to provide for the child; 6) purchased a home; and 7) gave birth to another child, with whom there was no involvement from the department. As to the best interests of the child, mother stated that she: 1) was not involved with the department with regard to her new child; 2) was better able to provide for the childs emotional and physical needs than a foster mother with 10 other children; 3) was able to provide a loving home for the child, by raising her with the childs new sister; 4) would be able to ensure that the child was fully involved in her religious heritage (Jewish); 5) was better able to provide for the childs cultural needs, as opposed to the child being raised in a 100% minority household; and 6) had addressed all issues that originally brought her to the departments attention.

On June 14, 2006, the court held the section 366.26 hearing, as well as the hearing on the section 388 petition. Regarding the section 388 petition, mothers counsel read mothers stipulated testimony into the record. In it, mother stated that she was on the waiting list for aftercare and counseling, that she had medical insurance available for the child, that she was currently on probation for three years, that she had been clean for the last 11 months, that she was a stay-at-home mother, and that she received income through social security and an inheritance. Mothers counsel also stated that mother would testify that, at the onset of this case, when she made plans to be in contact with a Jewish adoption agency to preserve the childs religious heritage, she was having legal, financial, and sobriety problems; however, those problems had now been overcome. Mothers counsel added that her last visit with the child was on June 12, 2006.

Mothers counsel proceeded to argue that there were two concerns for the court to consider: 1) mother had overcome the issues that brought her before the court; and 2) it would be in the best interests of the child to vacate the pending section 366.26 hearing and place the child with mother on a family maintenance plan or reinstate reunification services. Mothers counsel stated that mother owned a home for her children to live in, and she gave birth to another child who has remained in her care, even after being investigated by the department. Mothers counsel raised the concerns of the prospective adoptive mothers ability to provide financially for all of the children in her care. He pointed out that the prospective adoptive mother was only renting her house, with no guarantee how long that house would be available. He further asserted that there was no indication that the prospective adoptive mother understood there may be a limit to the number of children she could have in her care. He also mentioned that the CPS referral regarding the prospective adoptive mothers daughter needing glasses. In addition, mothers counsel argued that mother would be able to provide the child with more love and attention than the prospective adoptive mother, who had eight other children to care for.^[4] Mothers counsel also mentioned that mother would insure that the child maintained her religious heritage.

Counsel for the department argued that it was not in the best interests of the child to grant the petition because there was no bond between mother and the child. In contrast, the child had developed a parent-child relationship with the prospective adoptive mother and was also bonded with the children in the home. Counsel argued it would be detrimental to remove the child from those relationships.

Based on the courts review of the documents, and having heard and considered the oral arguments, the court denied the section 388 petition. The court commended the mother for her progress and stated that the first prong of the section 388 petition had been met. However, with regard to the best interests of the child, the court pointed out that the child had been out of the home well over a year, notably just a few days after birth. The court stated that it was difficult at this point to find a reason to remove the child from a caretaker with whom the child had lived with all her life. The court noted that mother visited the child once that week, but other than that, there was no relationship or bond between mother and the child.

The court recognized that mother was doing a good job of taking care of her other child. However, the court found that the child clearly fell into a different domain because she was connected to the prospective adoptive mother as well as the other siblings in the home. The court further stated that it weighed and balanced other factors, such as the fact that the child would be raised with a natural sibling if returned to mother, and that mother had worked on the issues that brought the child before the court. After weighing all the issues, it determined that it was not in the best interests of the child to displace her. The court then stated that, although the prospective adoptive mother had more children than most, she was consistent in providing care for them. The court noted that there was no evidence that she mistreated the children or that she did not fully provide for any of them.

The court proceeded with the section 366.26 hearing and terminated parental rights, finding that the child was likely to be adopted.

ANALYSIS

Mothers sole contention is that the court abused its discretion in denying her section 388 petition. We disagree.

A. Standard of Review

A section 388 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. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) After 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 [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.] 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. (Ibid.)

B. There Was No Abuse of Discretion

In the case before us, the juvenile court properly recognized this shift of focus and determined that a change of placement was not in the best interests of the child. By the time that mother claimed a change of circumstances, the child had lived with the prospective adoptive mother for essentially her entire life. The prospective adoptive mother knew the childs wants and needs, since she had raised her from birth. Moreover, the prospective adoptive mother was very attached to the child, and the child was attached to her and her family. The child was happy in the only home she had ever known. The prospective adoptive mother wanted to provide a stable home for the child, and her children all wanted the child to become a permanent part of their family.

On the other hand, as noted by the court, there was virtually no relationship or bond between mother and the child. The record shows that mother visited the child merely three times during the entire dependency the last visit being just two days before the section 366. 26 hearing.

Mother attempts to rely upon the factors in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.) to support her position. The Kimberly F. court stated that the best interests showing under a section 388 petition involved looking at a number of factors, including, but not limited to: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Kimberly F., supra, at p. 532.)

The Kimberly F. factors favor the courts decision. As to the first factor, the child was taken away from mother because she and mother tested positive for methamphetamine at the time of the childs birth. Mother was given numerous referrals for substance abuse assessment, treatment and/or testing at the start of the dependency. By the time of the six-month review, she had not done anything to address the problem. During the dependency, mother was incarcerated for a past charge of drug possession with intent to sell. On her section 388 petition, she alleged as changed circumstances that she completed a substance abuse program. However, she apparently only participated in the program because she was required to, or else she would be incarcerated again. As to the third factor the degree to which the problem has been ameliorated mother completed her substance abuse program on April 6, 2006. The hearing on the section 388 petition was held approximately two months later. As recognized by the court in Kimberly F., [i]t is the nature of addiction that one must be clean for a much longer period than 120 days to show real reform. (Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9, italics added.)

Mother contends that the court incorrectly decided the second Kimberly F. factor regarding the strength of the bonds between the child and both the parent and the caretaker. She claims that the court improperly used the beneficial relationship standard of section 366.26, subdivision (c)(1)(A). We disagree. The Kimberly F. court stated the standard as follows: To be specific, the bond must be strong enough that it would be detrimental to terminate parental rights in a situation where adoption could otherwise be the permanent plan. (Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 10.) As discussed ante, the child was very attached to the prospective adoptive mother and her family. In contrast, she had no relationship with mother. Nothing in the record showed that it would be detrimental to terminate parental rights.

Mother further argues that the court abused its discretion in failing to consider the childs physical resemblance to her and their Jewish heritage as sources of bonding. In other words, mother contends there was a bond simply because the child bore a physical resemblance to her and because they were both Jewish. First, mother did not raise this argument before the juvenile court. Her section 388 petition only alleged that she would be able to ensure that the child was fully involved in her religious heritage. Second, mother provides no legal authority to support her assertion that the court here was required to consider physical resemblance and religious heritage in determining the childs best interests. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.] (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

In considering the childs bond with the prospective adoptive mother, mother also claims that the court failed to consider the prospective adoptive mothers age, the number of foster children in the home, the plan to bring in more foster children, the prospective adoptive mothers reliance on her children as her only source of income, and the childs racial, religious, and age distinctions from the prospective adoptive mother and her children. The record shows that all of these factors were included in the adoption assessment report, which the court read and considered. Furthermore, mothers counsel highlighted the issues of the prospective adoptive mothers finances, the number of children in the home, and her desire to bring more children into the home during his oral argument at the section 388 hearing. In addition, counsel for the department noted that, despite the departments concerns about the prospective adoptive mothers finances, it still recommended termination of parental rights. Counsel also argued that there was no basis in the law for the department to consider religion or race when placing the child. Thus, the record reflects that the court was fully aware of all of the issues mother now raises.

Ultimately, the juvenile court properly considered the evidence before it and weighed and balanced several factors, including that the child was attached to the prospective adoptive mother and her family, that the child would be raised with a natural sibling if placed back in mothers care, and that mother had worked on the problems that brought the child before the court. The court acknowledged that the prospective adoptive mother had several children in her home, but noted that she consistently met all of their needs. We cannot say that the courts decision to deny the section 388 petition was arbitrary or capricious. We accordingly find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

KING

J.

MILLER

J.

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

^[2] Counsel for the child filed a brief on January 30, 2007, asking this court to affirm the juvenile courts orders.

^[3] We note that the section 300 petition also contains allegations against the childs father (father); however, he is not a party to this petition.

^[4] The record actually showed that the prospective adoptive mother had eight children living with her, including the child.