Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. EJ003238, David B. Oberholzer, Judge.
AARON, J.
Hope H. appeals the judgment terminating her parental rights to her daughter, T.G. Hope contends that the juvenile court abused its discretion in denying her Welfare and Institutions Code section 388 petition, in which she requested that T.G. be placed with her. Hope also contends that the court erred in declining to apply the beneficial relationship exception to termination of her parental rights (§ 366.26, subd. (c)(1)(B)(i)). We affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
I
BACKGROUND
Hope began using marijuana when she was approximately 13 years old. She began using methamphetamine when she was approximately 17 years old. T.G. was born in 2007, when Hope was 21 years old. Hope was unable to care for T.G. and T.G.'s father, E.G., assumed custody of T.G. Hope claimed that she saw T.G. at least once a week, but E.G. said that Hope saw T.G. only three times a year. In 2009, Hope was placed on probation for driving under the influence. By May 2010, there was an outstanding warrant for her arrest resulting from her failure to appear in court concerning a charge of possessing methamphetamine.
In May 2010, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition on behalf of nearly three-year-old T.G. The petition alleged that during a Fourth Amendment waiver search of E.G.'s home, E.G. and Hope (together, the parents) were arrested for child cruelty and possessing drug paraphernalia. Marijuana was found in the home, and a methamphetamine pipe was found in E.G.'s pocket. Hope admitted having used marijuana and methamphetamine within the past few days. E.G. had a criminal history involving drug possession and had failed to reunify with other children due to substance abuse issues.
The petition was later amended to allege that "the charges against [the parents] were dropped." The court dismissed an allegation that the parents were incarcerated and unable to arrange for T.G.'s care.
T.G. was initially detained in Polinsky Children's Center, and later, in a foster home. In June 2010, the court entered a true finding on the dependency petition, ordered T.G. placed in foster care and ordered reunification services. In August, T.G. was placed in the home of her paternal grandparents (the grandparents), where she had lived while she was in E.G.'s custody.
Initially, Hope's visitation was supervised, and there were periods when she missed visits. Unsupervised and overnight visits began in June 2011. In October, Hope was an hour late in returning T.G. to the grandparents' home after a visit. Hope's boyfriend had participated in the visit despite the fact that the social worker had told Hope that this was prohibited. Additionally, Hope had allowed T.G. to ride in the boyfriend's vehicle without a car seat. T.G. told the social worker that during visits, she sometimes slept on the floor, while Hope slept in the bed with her boyfriend, and that sometimes, T.G., Hope and Hope's boyfriend all slept in the same bed.
Hope's boyfriend had a recent history of substance abuse.
Over a period of more than 18 months, Hope participated sporadically in substance abuse treatment and relapsed several times. Her longest documented period of sobriety during this case, in mid-2011, lasted more than four months.
At the 18-month review hearing in January 2012, the court terminated Hope's services and set a section 366.26 hearing. The court suspended overnight visits, but continued unsupervised visits. On March 1, Hope entered residential substance abuse treatment. In April, the court allowed overnight visits at the treatment facility.
In June 2012, Hope filed her section 388 petition. On June 26, the court summarily denied the petition. At the July 10 section 366.26 hearing, the court granted Hope's request for reconsideration and held an evidentiary hearing on the section 388 petition. The court denied the petition on the merits and terminated parental rights. At the time of the hearing, Hope claimed that she had been clean and sober since October 9, 2011.
In summarily denying the section 388 petition, the court stated: "While [Hope] is to be commended for her progress, she is far from offering the sort of stability adoption would bring. It is one thing to advance in treatment, another to maintain that level of functioning plus hold a job and maintain a place to live. Moreover separation from caretakers would be detrimental."
II
DISCUSSION
A
The Court Did Not Abuse Its Discretion in Denying the Section 388 Petition
Section 388 allows the juvenile court to modify an order if a party establishes, by a preponderance of the evidence, that changed circumstances exist and that the proposed modification would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) When a case is past the reunification phase, the focus is on the child's need for permanency and stability, and there is a rebuttable presumption that it is in the child's best interests to remain in the current placement. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review the denial of a section 388 petition for an abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Hope's section 388 petition sought modification of the January 2012 order terminating reunification services and setting the section 366.26 hearing. The petition requested that T.G. be placed with Hope at her treatment facility, and that Hope be provided family maintenance services.
To support her allegation of changed circumstances, Hope presented evidence that she had entered a six- to nine-month residential treatment program in March 2012. She was clean and sober and had "given birth to a healthy clean and sober baby boy" in April. T.G. would be allowed to live at the treatment facility. Hope had a home and a job waiting for her when she completed treatment.
The section 388 petition alleged that the proposed modification would be in T.G.'s best interests because "her natural placement [was] with her natural parent and her newborn sibling." The placement would be "a reasonable continuation of... an established pattern of increased visitation over approximately, the last year and a half." T.G. could continue her relationship with paternal relatives, and because it was summer, the change in placement would "not negatively impact [T.G.'s] scholastic schedule." To support her allegation that the proposed modification would be in T.G.'s best interests, Hope presented evidence that overnight visits had been successful; T.G. was bonded with her baby brother; and T.G. loved him and missed him.
As to changed circumstances, the court stated: "The new evidence that's been submitted today does indicate to me that there is a change of circumstance. While I was skeptical at the 388, when it was submitted, and would endorse the notion that it's a changing circumstance, not a change of circumstance, it seems to me that this is the first time that [Hope] has ever really gotten this far and been this dedicated." The court also noted that Hope's current participation in drug treatment was "dramatically different" from her previous attempts at treatment.
It is unclear from the court's statement whether it found changed circumstances or changing circumstances. Even assuming that the court found that Hope had shown changed circumstances, and that the finding was proper, Hope did not meet her burden of proof to establish that granting her petition would be in T.G.'s best interests. In finding that Hope had not met her burden of showing that it would be in T.G.'s best interests to be placed with Hope, the court noted that "the only memories that [T.G.] has in her mind are with her grandparents." The court further observed that T.G. was closely bonded to the grandparents, and concluded that it would be detrimental to her to be removed from their home and placed with Hope. T.G. looked to the grandparents for direction, comfort, security, stability, support and strength. Although T.G. knew that Hope was her biological mother and called her "mama" during visits, at other times T.G. called Hope by her first name. T.G. called her grandmother "mother" and "mama."
The court did not abuse its discretion in concluding that Hope failed to show that the proposed modification would have been in T.G.'s best interests. T.G. had known the grandparents all her life and had lived with them for more than two years. She was bonded with them and viewed them as her parents. T.G. was thriving in the grandparents' care and benefited from the stability they provided.
Hope asserts that we should apply the factors in In re Kimberly F. (1997) 56 Cal.App.4th 519 in our section 388 analysis. In Kimberly F., the reviewing court stated that the juvenile court should consider the following factors in determining whether to grant or deny a section 388 petition: the seriousness of the problem that led to the dependency, the reason the problem continued, the strength of the parent-child and child-caregiver bonds, the length of time the child has been in the system, the nature of the change of circumstance, the ease by which the change could be achieved and the reason the change did not occur sooner. (Kimberly F., supra, at pp. 530-532.) A consideration of these factors would not assist Hope. Her substance abuse was a serious problem that had existed for years, and continued despite the services that she received both before and during this case. T.G. had been in the dependency system for more than two years. Although she had a bond with Hope, she was strongly bonded with the grandparents.
The court did not abuse its discretion by denying the section 388 petition.
B
The Court Did Not Err in Refusing to Apply the Beneficial Relationship Exception to Termination of Parental Rights
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[t]he parent[has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Whether this type of relationship exists is determined by taking into consideration "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs...." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude that although, for the most part, Hope visited regularly, she did not show that terminating her parental rights would be so detrimental to T.G. as to outweigh the benefits that she would gain through adoption. (Id. at pp. 576-577.)
Hope does not contest the juvenile court's finding that T.G. was adoptable.
T.G. was five years old. She had known the grandparents all her life and had lived with them for more than two years. She was bonded with them, viewed them as her parents and was affectionate with them. T.G. was thriving in the grandparents' care and benefited from the stability they provided. She trusted them and turned to them for emotional support and guidance. T.G. was close to a cousin who also lived in the home. The grandparents were committed to adopting T.G. During two separate home visits, T.G. told the social worker that she wanted to live "here with my mommy and my poppy, " a reference to the grandparents.
T.G. enjoyed visits with Hope. They were affectionate with each other. Hope engaged in activities with T.G., and made "efforts to provide adequate supervision and appropriate redirection." According to the social worker, T.G. was able to leave visits easily and did not "exhibit any negative emotions or reactions." There was no evidence that T.G. asked about Hope between visits. The social worker believed that T.G.'s relationship with Hope was "not a true attachment that would be described between a child and [her] primary caregiver." The social worker concluded that the relationship between T.G. and Hope was not "so strong that it outweigh[ed] the benefits [T.G. would] receive by being adopted."
The court found that in light of Hope's "success in her recovery[, ] [s]he is in a position, now, where she could form a bond with [T.G.] that is more parental than it ever could be before." The court noted that the social worker testified "that the visits with [Hope] are not necessarily a visit to a parent-like person, one [T.G.]... considers a parent." The court then commented, "Maybe, maybe not. I don't know how you can go out with somebody every weekend, someone who is, after all, disciplining you and keeping your boundaries, keeping you within acceptable limits, and not see them as somewhat of a parent figure." Balancing the benefit to T.G. of being adopted by the grandparents against the benefit of "continuing the parental relationship, " the court concluded that it "is pretty clear, that in this instance, the benefits of the adoption [by the grandparents] far outweigh any benefit of a growing and increasing relationship between [T.G.] and [Hope]."
There is substantial evidence to support the conclusion that maintaining Hope's relationship with T.G., even if the relationship was that of a parent and child, would not outweigh the well-being that T.G. would gain in a permanent, adoptive home. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There is thus substantial evidence to support the court's finding that the beneficial relationship exception did not apply.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.