IN RE: CARLOS C. et al.

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Court of Appeal, Fifth District, California.

IN RE: CARLOS C. et al., Persons Coming Under the Juvenile Court Law. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CRYSTAL B., Defendant and Appellant.

F062198

Decided: August 26, 2011

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant. James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Crystal B. (mother) appeals from orders terminating her parental rights (Welf. & Inst.Code, § 366.26) to her three sons, ranging in age from five to seven years, and her two-year-old daughter.1  Mother contends the court abused its discretion by not returning the children to her custody or reinstating reunification services for her.   She also argues that the court should have found termination would be detrimental to her sons based upon their relationship with her.   On review, we disagree and affirm.

PROCEDURAL AND FACTUAL HISTORY

The underlying dependency proceedings commenced in August 2009, when mother was arrested on suspicion of armed robbery and had no caregiver to provide for the children's immediate needs.   Over time, the juvenile court exercised its dependency jurisdiction over the children and removed them from parental custody, citing in part mother's criminal lifestyle, current incarceration, history of drug use, and domestic violence.   The court also ordered mother to participate in reunification services, including assessment and recommended treatment for domestic violence, anger management, drugs and alcohol, parenting training, and random drug testing as well as visitation.

As alluded to in the juvenile court's finding, this was not the first time that mother had been in trouble with the law.   It was also not the first time she had lost parental custody.

Mother's Previous History

In 2004, a little more than a year after her first child was born, mother was convicted of felony possession of methamphetamine for sale (Health & Saf.Code, § 11378).   She received probation and was sentenced to 60 days in jail.   Approximately a year later, she violated her probation, resulting in a 20–day jail commitment.   In 2006, she was convicted of misdemeanor fighting (Pen.Code, § 415) and again received probation as well as a 75–day jail commitment for probation violations.   In 2007, she was convicted of burglary (Pen.Code, § 459) and received another grant of probation with a six-month jail sentence, as well as 90 days in jail for probation violations.

During mother's 2007 incarceration, she left her sons with their maternal grandmother.   However, the maternal grandmother's methamphetamine abuse, among other problems, as well as mother's inability to care for the boys due to her criminal activities and substance abuse, led to the boys' removal from parental custody in juvenile dependency proceedings between 2007 and 2008.   Mother was subsequently released and actively participated and made satisfactory progress in reunification services.   As a result, she regained custody of the children.   In late 2008, the court terminated its dependency jurisdiction.   It was less than a year later when the children were detained in these proceedings.

Mother's Failure to Reunify in 2009–2010

In December 2009, during the reunification period in the underlying dependency, mother pled no contest to a reduced charge of grand theft –property taken from the person of another (Pen.Code, § 487, subd. (c)).  She was sentenced to state prison.   In addition, she was found to have again violated her probation.

Due to mother's incarceration, there could be no visitation and she did not participate in or comply with the specific court-ordered services.   She did send letters and cards to the children four times and had periodic telephone contact with them.   Eventually she also enrolled in an anger management course as part of “The Walden House Treatment program,” a rehabilitation program for incarcerated adults.   She attended 10 sessions of parenting classes in prison as well.

As a consequence, respondent Merced County Human Services Agency (agency) recommended in June 2010 that the court continue the children's out-of-home placement, terminate reunification services, and set a section 366.26 hearing to select and implement a permanent plan for the children.   The juvenile court conducted a contested evidentiary hearing on these issues five months later in November 2010.

In the interim, mother was released from prison, specifically in July 2010.   By that time, she had participated in 71 days of substance abuse treatment.   A condition of her parole was that she complete residential treatment.   Although mother entered such a program, known as Tranquility Village, she chose to leave after approximately 60 days.   She minimized her substance abuse and wanted an outpatient program.   Apparently no action was taken to revoke her parole.

Mother also resumed visiting her children upon her prison release.   There were supervised, once-a-month visits between her and her sons and more frequent, supervised visits between her and her youngest child.

Between July and September 2010, mother's interactions with the children were reportedly appropriate.   However, she had not demonstrated that she learned new parenting behaviors.   She had difficulty managing the children's competing demands for her attention, supervising them, and redirecting them when the children misbehaved.

Mother also scolded her sons at their first two visits when they referred to their foster parents as mommy and daddy.   The boys looked forward to seeing mother and cried briefly when the visit was over.   However, before mother's arrival at each visit, the boys asked their social worker if she would let them go back to their new mom's house (the foster home) after they saw their mother.

November 2010 Hearing Terminating Reunification Services

Mother offered conflicting testimony about what she had accomplished in and out of prison.   In particular, she insisted that she had not been required to enter a program, such as Tranquility Village, upon her release.   Mother also denied a history of narcotics use.

When the hearing concluded, the juvenile court found that although mother may have attended programs and “done all those things,” she had not made any substantial progress.   The reason was that mother was in denial, especially about her involvement in drugs.   The court found by clear and convincing evidence that mother's progress was minimal and unsatisfactory and the children could not be returned to her.

In turn, the juvenile court continued the children's out-of-home placement, terminated reunification services, and set a section 366.26 permanency planning hearing for the children.   Although mother submitted a notice of intent to file a writ petition (Cal. Rules of Court, rule 8.450), neither she nor her trial counsel filed a petition for extraordinary writ with this court.   Consequently, this court dismissed the writ proceeding as abandoned.

Permanency Planning and Mother's Section 388 Petition

In advance of the permanency planning hearing, the agency submitted a report recommending that the court find the children likely to be adopted and order termination of parental rights.   Because the likelihood of the children's adoption is undisputed, we do not recite the supporting evidence here.

The agency's report also summarized the visitation that occurred over the course of the children's dependency.   For the first 11 months, the children had virtually no contact with mother due to her incarceration.   During the visits that occurred after mother was released, she typically brought food for the children and they would eat and play.   Some visits were chaotic and disorganized.   At more than one visit, mother took each of her sons aside and had individual conversations.   During some of those conversations, the supervising social worker observed one or more of the boys to be upset and crying.   Some of mother's conversations with the boys also occurred in Spanish.   The children had reported being told in Spanish not to listen to their foster parents.

Before the juvenile court eventually conducted the permanency planning hearing, mother's trial counsel petitioned (§ 388) the court to place the children with mother or reinstate reunification services for mother based on alleged changed circumstances.   At a March 2011 combined section 388 and permanency planning hearing, mother testified.

Mother wanted the children returned to her care.   She had arranged to live with a relative whose home was large enough for her and the children.   She was on parole and had not violated it.   Mother was also attending NA and AA meetings.   She attended 15 meetings both in December 2010 and January 2011.   In February 2011, she attended 11 meetings.   So far in March 2011, she attended nine meetings.

The NA and AA meetings gave mother strength, courage and support.   She did not have a sponsor, but she had completed her first step.   However, when asked what the first step was, she gave an incomplete description.   She then acknowledged the first step referred to being powerless over alcohol or other drugs.   Nevertheless, she insisted she did not have an addiction or a drug problem.

Her lack of an addiction or a drug problem was why she left the Tranquility program after her prison release.   She “couldn't really relate to the program.”

Mother believed it was in the children's best interests to come home to her because they belonged with her.   According to mother, the visits she shared with the children went well.   The children appeared to enjoy the visits.   They were happy and exchanged hugs and kisses with her.   In mother's view, the children loved her very much.

Following argument, the juvenile court denied the section 388 petition.   The requirements had not been met to support either returning the children to mother or reinstating services.   Although mother had taken some positive steps toward dealing with substance abuse, her testimony was inconsistent and the court detected some denial on mother's part.

Moving on to the permanency planning phase of the hearing, mother's counsel asked the court to take into account mother's previous testimony and not terminate parental rights.   Claiming there was a relationship between the children and mother, the attorney claimed terminating that relationship would be detrimental to the children.

The juvenile court, having found it was likely the children would be adopted, terminated parental rights.

DISCUSSION

I. The Juvenile Court Did Not Abuse its Discretion by Denying Mother's Section 388 Petition.

Mother contends the juvenile court abused its discretion by denying her request to regain custody or at least reinstate reunification services.   A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).)  The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (d);  Cal. Rules of Court, rule 5.570.)

Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)   Based on our review of the record, we conclude the juvenile court did not abuse its discretion by denying mother's petition.

In mother's view, she demonstrated a sufficient change of circumstances, resolving the issues that resulted in the children's dependency and removal.   She argues that while her change of circumstances since the November 2010 setting order did not appear to be extensive, it was only because she had already substantially complied with the case plan by the time of the November 2010 hearing.

Mother's argument assumes that, in this appeal, this court can review, if not somehow ignore, the juvenile court's November 2010 finding that mother's progress in services was minimal and unsatisfactory.   We cannot.   All challenges to the findings and orders underlying an order setting a section 366.26 hearing must be brought by extraordinary writ petition. (§ 366.26, subd. (l )(A);  In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022.)   Failure to file an extraordinary writ petition to challenge an order setting a section 366.26 hearing precludes our subsequent review of those findings and orders on appeal from the juvenile court's permanency planning order. (§ 366.26, subd. (l )(2).)   In this case, mother forfeited her opportunity to challenge the juvenile court's November 2010 findings and orders when neither she nor her trial counsel sought review by filing an extraordinary writ petition.

Given that the court in November 2010 found mother made minimal and unsatisfactory progress despite the services in which she participated, mother had to show for purposes of section 388 that those circumstances had changed as of the March 2011 hearing, i.e., she was making substantial progress in correcting the problems which led to the children's removal. (§ 366.21, subd. (e) [a parent's substantial progress is a key to an order returning custody].)   However, mother's showing did not address the issue of progress.   Also, among the problems underlying the children's removal was mother's substance abuse problem.   For instance, when the children were detained in 2009, mother reported that her drug of choice was marijuana and that if she could, she would smoke marijuana every day.   In her view, it was not an issue for the children because they did not know about it and the marijuana blocked everything she had been through in her life.   Yet, even as late as the March 2011 hearing, mother denied any drug problem.   On the record before it, the juvenile court could properly find that mother continued to be in denial regarding her substance abuse problem and therefore her circumstances had not changed.

Given mother's failure to demonstrate changed circumstances, the juvenile court's denial of her section 388 petition was warranted. (§ 388, subd. (a).)

II. The Juvenile Court Did Not Abuse its Discretion by Rejecting Mother's Claim that Termination Would be Detrimental to the Children.

Mother contends there was insufficient evidence to support the juvenile court's failure to find that her sons shared a beneficial relationship with her so that termination would be detrimental to the children (§ 366.26, subd. (c)(1)(B)(i)).   We disagree for multiple reasons.

To begin, mother argues an incorrect standard of review.   Once a dependency case reaches the permanency planning stage, the statutory presumption is that termination is in an adoptable child's best interests and, therefore, not detrimental. (§ 366.26, subd. (b);  In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343–1344.)   Consequently, it is the parent's burden to show that termination would be detrimental under one of the statutory exceptions.   (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)   When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing.  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)   We do not review the juvenile court's decision for substantial evidence to prove a negative, that is termination would not be detrimental.

Second, the beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), involves a two-part test;  did the parent maintain regular visitation and contact with the children, and would the children benefit from continuing the relationship.   In this case, it is at least arguable that mother did not maintain regular visitation and contact with her sons throughout their dependency.   At best, once she was released from prison, she visited them once a month.   However, there was no evidence that during her 11–month incarceration mother maintained regular contact with her sons.   She apparently had one visit in October 2009, sent letters and cards to them four times, and had periodic telephone contact with them.

In any event, for the beneficial relationship exception to apply,

“the parent-child relationship [must] promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents.  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)   A juvenile court must therefore:  ‘balance ․ 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.’  (Id. at p. 575.)”  (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)

Based on our review of the record, we conclude the juvenile court properly exercised its discretion in rejecting mother's argument.   According to mother's testimony, she and the boys shared fun and affectionate, monthly visits.   However, mother had to demonstrate more than this to compel a finding that termination would be detrimental to the boys.  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953–954 [a parent must demonstrate more than pleasant visits or loving contact for the court to find detriment].)   There was no evidence that the boys had such a substantial, positive emotional attachment to mother that they would be greatly harmed if rights were terminated.   In addition, there was the agency's evidence regarding problems at the visits for the juvenile court to consider.   Thus, the evidence before the juvenile court was not uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law.  (Roesch v. De Mota (1944) 24 Cal.2d 563, 570–571;  In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)

DISPOSITION

The orders denying mother's section 388 petition and terminating parental rights are affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise indicated.