Opinion
D049530
4-30-2007
In re OMAR E., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MARY E. et al, Defendants and Appellants.
NOT TO BE PUBLISHED
Mary E. appeals a judgment terminating her parental rights to her son, Omar E., and an order denying her Welfare and Institutions Code section 388 petition, in which she requested that she be provided reunification services and that Omar be placed with her. She contends that the juvenile court abused its discretion by denying her petition because she established that there had been a significant change in circumstances, and that reunification was in Omars best interests. Omars father, Tomas M., joins in Marys brief and argues that his and Marys parental rights should be reinstated. We affirm.
All statutory references are to the Welfare and Institutions Code.
Tomas lacks standing to join in Marys arguments regarding her section 388 petition. (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193-1194) However, he is correct that if Marys arguments on appeal are successful, his parental rights would also be reinstated. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.)
FACTUAL AND PROCEDUAL BACKGROUND
When Omar was born in September 2005, he tested positive for morphine. Mary tested positive for methamphetamine. The San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b) based on Marys drug use and the fact that Tomass whereabouts were unknown.
Mary said she had been using methamphetamine in an attempt to stop using heroin, and that she had been attending a methadone clinic in Mexico. Both Mary and Tomas had drug-related criminal histories. They had failed to comply with reunification services concerning Omars siblings, Angel M. and Angelica M., and their parental rights to these children had been terminated. The court ordered Omar detained.
On November 15, 2005, the court declared Omar a dependent child, ordered that no services be provided to Mary and Tomas under section 361.5, subdivisions (b)(10), (b)(11) and (b)(13) and set a section 366.26 hearing. The social worker assessed Omar as adoptable and reported that his foster family was willing to adopt him. In addition, there were 33 other approved adoptive families who wanted to adopt a child like Omar.
Reunification services need not be provided when the court has ordered termination of a parents reunification services regarding any sibling or half-sibling and the court finds that the parent has not subsequently made a reasonable effort to treat the problem that led to that sibling or half-siblings removal (§ 361.5, subd. (b)(10)); when a parents rights to any sibling or half-sibling of the child has been permanently severed and the parent has not subsequently made a reasonable effort to treat the problems that led to that sibling or half-siblings removal (§ 361.5, subd. (b)(11)); or if the parent has a history of extensive, abusive and chronic use of drugs or alcohol and has resisted prior court-ordered treatment during a three-year period immediately before filing of the petition for this child (§ 361.5, subd. (b)(13)).
The Agency reported that Mary was incarcerated in January 2006, that she was released in February, and that she entered the KIVA residential program upon her release from custody. She first visited Omar in March, when he was nearly six months old. At the time the report was prepared in August 2006, Mary had visited Omar 11 times. Tomas was incarcerated and had not visited.
On June 22, 2006, Mary filed a section 388 petition, requesting that she be provided reunification services and that the court place Omar with her at KIVA. She said that she had entered KIVA in February 2006, had enrolled in every program available to her, tested clean, completed substance abuse treatment and a parenting class, and that she had been visiting Omar two hours each week. She subsequently submitted additional documentation substantiating these assertions. In August, the court continued the matter for a hearing.
On August 10, 2006, the court declared that Tomas is Omars biological father. On August 31, it granted Omars foster parents request to be designated his de facto parents.
At the combined section 388 and section 366.26 hearings on September 18 and 28, 2006, Marys drug counselor acknowledged that Mary had abused drugs for many years. The counselor testified, however, that Mary had participated fully in treatment, tested negative for drug use, graduated from the KIVA program and, in the counselors opinion, was not at risk for a relapse. The counselor said that Mary and Omar interacted well during the two visits she had observed.
The president of Marys sober living residence testified that Mary followed house rules and attended more NA/AA meetings than were required. There were no concerns about Omar being placed with Mary at the residence.
Mary testified that she began using cocaine and alcohol at age 16, and that she had stopped when she was 24 and did not use drugs again for almost 12 years. However, in 2002 she began using heroin and methamphetamine. She became homeless, Angel and Angelica were removed from her custody, and her parental rights to them were terminated. She testified that she surrendered to authorities three and one half months after Omar was born, that she was briefly incarcerated and that she then entered KIVA, where she gained the tools she needed to maintain sobriety. She acknowledged that the treatment she sought was required as a condition of probation.
After Mary graduated from the KIVA program, she moved to a sober living residence. She was presently working on the fourth step of the 12-step program, and was employed as a caretaker. She visited Omar each week for two hours; they played and she fed him and changed his diaper. She said she still talked with Tomas, but claimed that she would not have a relationship with him unless he were in recovery. She said she had not had individual therapy, as was required in her reunification plans for Angel and Angelica, and that she did not realize that she could have asked for therapy at KIVA.
The social worker opined that Mary was at risk of relapsing because she had relapsed before, and had not been in treatment for very long. The social worker believed the risk could be alleviated by individual therapy, but admitted that she had not suggested to Mary that she seek therapy.
The parties stipulated that if Tomas were to testify, he would say that he believed Mary had made a change in her life, and that he supported her petition. He loved Omar and did not want his parental rights terminated.
The court denied Marys petition, finding that she had not shown either changed circumstances or that the change in orders she requested would be in Omars best interests. The court found that Omar was adoptable, and that none of the statutory exceptions to adoption existed. The court terminated parental rights, selected a permanent plan of adoption and named the de facto parents as Omars prospective adoptive parents.
DISCUSSION
Mary contends that the juvenile court abused its discretion by denying her section 388 petition. She argues that she established both a significant change of circumstances and that reunification was in Omars best interests.
Section 388 provides in part:
"(a) 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 circumstances or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court . . . ."[¶] . . . [¶]
"(c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."
In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the childs best interests. (§ 388; Cal. Rules of Court, rule 1432(c); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) "It is not enough for the parent to show just a genuine change of circumstances under the statute[,] [t]he parent must [also] show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) A reviewing court will not disturb a courts ruling in a dependency proceeding unless the trial court has abused its discretion in its determination. In addressing the standard of review, the Agency maintains that this court must accord broad deference to the trial court, and asserts that, "a reviewing court will not disturb [a discretionary] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [Citations]," citing In re Stephanie M., supra, (1994) 7 Cal.4th 295, 318 and In re K.D. (2004) 124 Cal.App.4th 1013, 1018. However, finding an abuse of discretion only in those circumstances in which the judge acted arbitrarily, capriciously, or whimsically would be misleading since "it implies that in every case in which the trial court is reversed for an abuse of discretion its action was utterly irrational." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) "The scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion [Citation]." (Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422.)
"A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. [Citation.]
`"[C]hildhood does not wait for the parent to become adequate."" (In re Casey D. (1999) 70 Cal.App.4th 38, 47, quoting In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
Mary showed good progress in addressing her drug addiction. However, she did not establish that placing Omar with her or providing her with services would be in Omars best interests.
Mary had a severe, long-term addiction. She began using alcohol and cocaine as a teenager. She stopped for almost 12 years, but then, when she was a counselor for a drug treatment program, began using methamphetamine and heroin. She became homeless and her two young children were removed from her care. She told the social worker that she was too "strung out" on heroin to participate in the reunification services she was offered at that time, and her parental rights to these children were terminated.
Omar tested positive for morphine when he was born, and Mary tested positive for methamphetamine at the time. When Omar was three and one-half months old, Mary surrendered to authorities, was briefly incarcerated, then entered KIVA as a condition of probation. She did not visit Omar until he was nearly six months old. At the time of the hearing she had recently graduated from the KIVA program, had lived in a sober-living residence for one month and was on step four of a 12-step program. Although she had made commendable progress in the months since she surrendered to authorities, her time in recovery was short in comparison to her long history of substance abuse.
Marys work toward recovering from addiction is praiseworthy. However, even if we were to determine that the juvenile court erred in finding that her progress did not constitute changed circumstances, we would nevertheless hold that the court properly determined that a change in the orders would not be in Omars best interests. Although Mary made great strides by remaining drug free for nearly nine months, graduating from KIVA, and entering a sober living residence, she did not show that it would be in Omars best interests to grant her petition.
In In re Kimberly F. (1997) 56 Cal.App.4th 519, the appellate court listed three factors a court might consider when determining if a childs best interests would be served by granting a section 388 petition: (1) the seriousness of the problem that led to the dependency and the reason for any continuation of the problem; (2) the strength of the bond between the child and the caretaker; and (3) the degree to which the problem may be removed and the degree to which it has been removed. (Id. at p. 352.)
Consideration of these factors leads us to conclude that the court did not err in finding that granting the petition would not serve Omars best interests. With respect to the seriousness of the problem that led to the dependency, Marys severe drug addiction caused her to lose her parental rights to Omars siblings, Angel and Angelica, whom she had exposed to a lifestyle of living with drug addicted parents. Reunification services offered in Angel and Angelicas cases included individual therapy, parenting classes and substance abuse treatment and testing. Mary failed to comply with these services. She used drugs during her pregnancy with Omar and obtained no prenatal care. She did not address her addiction seriously until Omar was nearly four months old.
As to the strength of the bond between the child and the caretaker, Omar was placed with his foster family at the age of two months, and was very bonded to them. They wanted to adopt him. Mary had never parented Omar on her own. She did not visit him until he was almost six months old and her contacts with him were limited to two-hour supervised visits once each week. Although Omar and Mary had pleasant weekly visits, she had never provided primary care for him and they did not have a parent/child relationship.
Finally, as to the degree to which the problem that led to the dependency has been, or may be, removed, Marys counselor and the president of her sober residence supported Marys petition. But the social worker opined that Marys short-lived abstinence from drug use and her recent success in the KIVA program were not sufficient to warrant services, or Omars placement with her. The social worker had worked on Omars case since January 2006 and on Angel and Angelicas before then. She was familiar with Marys substance abuse history. The court was entitled to rely on the social workers testimony and opinion. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421.)
When reunification services have been terminated or were never ordered, the focus is on the needs of the child for permanency and stability, rather than on the parents interest in the care, custody and companionship of the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) Mary made good progress in dealing with her addiction during recent months, but she had not progressed far enough to assure that she could provide Omar with a stable home. The court did not abuse its discretion in determining that it was not in Omars best interests to remove him from his foster family and place him with Mary, or to provide Mary with reunification services, thereby delaying permanency and stability for Omar.
DISPOSITION
The judgment and order are affirmed.
We Concur:
BENKE, Acting P. J.
HUFFMAN, J.