Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J04-01704
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendants and appellants Martha P. (mother) and Efrain L. (father), (jointly, “parents”), appeal from the juvenile court’s order terminating their parental rights to Mario L. following a hearing pursuant to Welfare and Institutions Code section 366.26. Parents also appeal from the juvenile court’s order denying their section 388 petitions requesting modification of prior orders terminating their reunification services. We affirm.
Further statutory references are to Welfare & Institutions Code unless noted.
Factual & Procedural Background
In an earlier opinion we recited an extensive factual background on the case up to the point at which the juvenile court terminated reunification services. (See In re Martha P. (May 17, 2006, A113205) [nonpub. opn.] [denying Martha P.’s request for an extraordinary writ challenging termination of reunification services].) Accordingly, we incorporate that here by reference, give only a brief synopsis of events prior to termination of reunification services, and concern ourselves principally with proceedings thereafter.
Mario was born in September 2004, at that time the youngest of seven children born to parents. On September 15, 2004, the Contra Costa County Employment and Human Services Department, Children and Family Services Bureau (“Department”) filed a petition alleging Mario came within section 300, subdivision (b) [failure to protect], because Mario had tested positive for methamphetamine at birth; the father had a substance abuse problem impairing his ability to care for Mario; Mario was a medically fragile infant with a condition which would exceed the parents’ capacity to provide Mario with adequate care; the father had failed to protect Mario from the mother's substance abuse during pregnancy, and the father had verbally abused the mother and had come close to physically assaulting her.
Also on September 15, 2004, the Department filed a separate petition on behalf of the other children (except the oldest son, Heriberto, who lived with grandparents), Efrain (15), Yesenia (13), Brenda (8), Angelica (2) and Lizbeth (1) stating the same allegations regarding the parents’ substance abuse and domestic violence. Parents subsequently had another female child, Z., born in November 2005, who was taken into protective custody on December 1, 2005, after mother left her residential drug treatment program and parents spent the night in their truck with the newborn baby. On February 8, 2006, dependency proceedings regarding Efrain and Yesenia were dismissed. On July 12, 2006, the court, with the agreement of all parties, ordered that Brenda return to the custody of her parents under a family maintenance plan. On May 17, 2007, we affirmed termination of parents’ rights with respect to Angelica, Lizbeth, and Z. (See In re Angelica L. (May 17, 2007, A114605) [nonpub. opn.].)
The November 2005 status review report prepared for the 12-month review hearing stated that Mario continued to receive medical treatment for club foot, Down syndrome, congenital heart disease, heart failure during birth, and hearing loss. Also, the report stated that on July 7, 2005, Mario was placed with the B’s in San Ramon; that the B’s have “extensive training and skills in working with children with special needs including Down syndrome and medically fragile issues; that Mario appears to be well connected and bonded to the B’s family; and that the B’s have expressed a desire to adopt Mario. The Department recommended termination of family reunification services for the parents with respect to the four younger children, including Mario. The Department proposed adoption as a permanent plan for Mario and asked the court to set a section 366.26 hearing. After a contested 12-month review hearing on February 6, 2006, the juvenile court adopted the Department’s recommendations, terminated the parents’ reunification services and set a section 366.26 hearing for May 25, 2006. We affirmed termination of reunification services in In re Martha P., supra.
On May 15, 2006, mother filed a section 388 petition requesting another six months of reunification services. Mother asserted her circumstances had changed because she continues to participate in counseling, including domestic violence and substance abuse counseling. Also, mother stated she was attending classes on how to care for Down syndrome children.
On May 24, 2006, father filed his section 388 petition requesting the children be returned to parents’ care with or without family maintenance services, or alternatively to institute reunification services, increase visitation with authority for overnights, order a bonding study and refer the case to mediation on permanency and placement issues. Father alleged his circumstances had changed because he had been attending domestic violence counseling with mother, substance abuse treatment, drug testing, Alcoholics Anonymous, and a school education program.
The Department’s section 366.26 report is dated May 18, 2006. The report recommended that the case be continued for 60 days for the completion of the foster parents’ updated home study. The report stated that Mario, then aged 20-months, “has had a rocky beginning . . . due to drug exposure in utero, and a diagnosis of Down syndrome. He is developing at a slower pace than other children, and has had to endure numerous painful procedures and major and minor surgeries. At this time, he is living in a home that wishes to adopt him. The completion of this family’s home study is anticipated within the next two months. Mario’s adoptability would be contingent upon locating a home with an approved home study for him.” Apparently due to a motion for continuance based on a client conflict filed by the public defender, the juvenile court continued the section 366.26 hearing and reset it for July 12 and 13, 2006.
On June 15, 2006, the juvenile court denied father’s request for a bonding study. On June 29, 2006, the Department filed a memorandum report informing the court that the home study of the prospective adoptive parents had been completed and approved. The Department recommended that the court find Mario adoptable and terminate parents’ rights. A second memorandum sent to the court on July 11, 2006, stated that the home study had still to receive formal “administrative approval” and that the Adoptions supervisor suggested this approval be withheld until after the foster father’s anticipated gastric bypass surgery and resolution of other health concerns. The memorandum also stated that the Adoptions supervisor believes another home could be recruited for Mario in the event the caretakers’ home study did not receive administrative approval. On July 12, 2006, the Department sent a third memorandum to the court requesting a 180-day continuance “given that the home study of his current caretakers has not been completely approved due to health concerns.”
We affirmed denial of a bonding study in In re Angelica L., supra, at pp. *4-6.
On July 12, 2006, the juvenile court began hearing parents’ section 388 petitions and the section 366.26 permanency plans with respect to Mario and his siblings. At the outset, the parties stipulated that parents had participated in domestic violence and parenting programs, a support group for parents of disabled children, and Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”) meetings. The parties also stipulated father had tested negative for drugs 11 times from January 12 to July 6, 2006, and had paid for the tests himself. Subsequently, counsel for the Department and Mario withdrew the AA stipulation over concerns about the authenticity of the sign-in sheets provided by parents.
These proceedings were held over several sessions and concluded on July 19, 2006.
The court heard testimony from various witnesses. As relevant here, mother admitted using drugs throughout most of the dependency proceedings, and during her pregnancy with Z. Mother acknowledged her drug addiction negatively affected her children, but believed the children nonetheless adored their parents. She had been participating in twice weekly AA meetings, and had worked on AA’s first six steps. She had been sober 9 months, and had completed a substance abuse outpatient program. She was scheduled to begin a year-long class for complete recovery at the Latina Center, where she would be able to choose from among many different classes. She was willing to do everything possible to have her children return home. Mother did not have a steady job, but often cleaned houses to make extra income. Mother stated father operated a gardening business and together they made sufficient income to support the entire family.
Father testified parents attended AA meetings on all the dates listed in the exhibits submitted to the court. He further testified that, were his children returned, he would get a larger apartment for parents and the younger children, and move his two older sons into a trailer on their property. He received over $5,500 in income between May 7 and June 12, 2006, and expected that income level to continue in the future.
Sheree Howe, a substance abuse counselor at Tri-Cities Discovery Center, confirmed father had enthusiastically completed the Center’s treatment program, and was continuing with an extended program. Howe tested father 8 to 9 times and mother 12 to 13 times for drug use, although few if any of the tests were conducted randomly. Rather, parents requested and paid for the tests. Father’s tests were administered by sending him, alone and unobserved, to the restroom with a container to urinate in. Paula Hollowell, an adoptions court social worker, testified that the children appeared to do “well” on one supervised visit when parents saw Mario and Z.
After the hearing on July 19, 2006, the juvenile court made several orders. While the court congratulated parents on “how far they’ve come and how much work they have done,” the court denied their section 388 petitions. The court reasoned that parents’ circumstances had not changed because they “have a history of failing multiple rehabilitation programs,” tested positive a number of times throughout the reunification process, and “got with the program very late in the game.” The court also noted the AA attendance documents “do appear to be forged” and stated that led it to question “how much [parents] really intend to keep going to AA.” The court also concluded it was not in the best interests of the children to be returned home because parents had failed to show “those four little ones look to them as parents rather than as visitors that they see once a month. They were late getting into consistent visits with the kids. It really just started this year [2006]. The court also terminated parental rights with respect to Z., Angelica and Lizbeth, and continued the section 366.26 hearing on Mario until October 16, 2006.
In early October 2006, each of the parents filed a second section 388 petition. Again, parents asserted changed circumstances based on their continuing involvement in various substance abuse and counseling services. Parents asserted that their custody of Mario would be in the child’s best interests because a child’s interaction with parents always carries “an incidental benefit” for the child.
The Department’s addendum section 366.26 report prepared for the October hearing notes that Mario is placed in a concurrent home in Contra Costa County and recommends that the rights of the parents be terminated so that Mario can be placed for adoption. The report stated that parents visit with Mario once per month, and during the July visit Mario appeared passive but “his mother worked hard to connect with him while holding him.” The report also stated that “parents continue to do well in that they are testing clean in their Family Maintenance case [regarding Brenda].”
Regarding Mario, the report noted that he is now two years of age, with Down syndrome, having undergone various surgeries to correct a heart defect, a club foot, and ear problems. It continues: “He wears braces on his legs and is crawling well, but sometimes his left-clubbed foot becomes bent under him, and the caretakers must be very attentive to adjusting his leg when this occurs. He is pulling himself up to a standing position, and cruising by holding onto furniture. He tires easily because of low muscle tone. He is learning sign language. . . . [H]e began Happy Talkers Preschool for three mornings a week . . . [in which] he receives speech therapy, occupational therapy, and physical therapy. . . . Mario is thriving in the home of his concurrent parents.”
The report relates that an updated home study of the prospective adoptive parents was approved on June 23, 2006. The prospective parents, aged 61 (father) and 53 (mother) have four adult children between them from their first marriages. Prospective father also has an adopted son, now 29, from his first marriage. Since their marriage, the prospective parents have one daughter, aged 15, and three adopted sons and two adopted daughters, ranging in age from six to fourteen years. The children they have adopted since their marriage have special needs. These children are in special education programs and the parents are “skilled at advocating for their various needs.” The report described the prospective mother’s health as excellent and indicated prospective father planned to have gastric bypass surgery within a few months which may also alleviate other health problems. It noted the prospective parents “have an approved back-up plan with their adult children. They are an active family, and well-organized in the care of their adopted children and birth child. The children are supportive of one another, and the entire family nurtures each child.”
On October 16 and 19, 2006, the section 366.26 hearing resumed regarding Mario. Mother testified regarding her monthly visits with Mario in July and August. She stated Mario appeared comfortable both with her and with his older sisters Brenda and Yesenia. Mother stated she is prepared to handle all of Mario’s medical needs and that she wants him returned to her care. Father testified that Mario seems happy and playful when parents visit with him, that he wants Mario to return to his home and that he had been attending classes to learn how to meet Mario’s medical needs. At the conclusion of oral argument, parents’ counsel read letters to the court from mother and father pleading for the return of Mario to their home. Mario’s counsel recommended that the court grant the parents request for section 388 modification, extend parents another six months of services and increase their visitation with Mario to once a week.
The juvenile court ruled as follows: “This is, you know, a heartbreaking case because the parents so want Mario back or they want him in their home. But parents have not met the standard for granting a 388. There are clearly changed circumstances from the time services were terminated back in February. In fact, it’s really right about that that time that parents started to get back---started to get into their substance abuse issues seriously. [¶] However . . . there’s insufficient evidence that it would be in Mario’s best interest to be returned home. He doesn’t just have Down syndrome. He has had open heart surgery. He has asthma. He has a club foot. He had trouble with speech. He has all kinds of problems. He is very, very fragile. [¶] He’s with a family who meets all of those needs. They are very trained. Yes, they have a lot of children, as do [Mario’s parents]. So either way he’ll be in a household full of children. [¶] The parents did not show that they really appreciate and understand Mario’s very serious needs. . . . Mario has never lived in the home. So I would be just completely taking a leap of faith to return such a child into the parents’ home. He’s over two years old. [¶] And I understand the parents are now on a path to staying clean and sober, and I’m very happy for Brenda and the other kids. But it doesn’t meet the standard that it’s in Mario’s best interest to be returned home.”
Additionally the court adopted the Department’s section 366.26 recommendations. The court found that Mario is an adoptable child, in particular that he is adoptable by the adoptive prospective family, who had had an approved home study and wished to adopt him. The court found by clear and convincing evidence that Mario would be adopted, and that there was no applicable exception to adoption under section 366.26 because no sibling exception applied and parents had not established that Mario looks to them as his parents. Accordingly, the court terminated parental rights as to Mario.
DISCUSSION
A. Termination of Parental Rights
1. Contentions
Mother contends the trial court’s order terminating parental rights must be reversed because it was based on the court’s incorrect assumption that the prospective adoptive parents had an approved home study. Mother asserts that “administrative approval” for the prospective adoptive parents’ home study was withheld until the prospective adoptive father had gastric bypass surgery. Mother further asserts the prospective adoptive father’s health problems and the lack of an approved home study constitute a legal impediment to Mario’s adoption.
Likewise, father contends the trial court’s order terminating parental rights must be reversed. Father asserts the trial court mistaken believe that the prospective adoptive parents’ home study had been approved resulted in termination of his parental rights, in violation of his constitutional right to due process. Additionally, father contends that the trial court’s finding that Mario would be adopted within the near future was not supported by substantial evidence because (1) Mario was not generally adoptable due to his considerable health problems and (2) approval of the prospective adoptive parents’ home study was still pending and conditional upon prospective adoptive father having gastric by-pass surgery. Minor joins in parents’ contention that there was a legal impediment to adoption because the prospective adoptive parents’ home study had not been approved at the time the court terminated parental rights.
Respondent, on the other hand, argue that parents and minor are simply incorrect in claiming that the prospective adoptive parents’ home study was not approved. Respondent dismisses parents’ claim as “speculative” because at best the record “presents merely some conflicting evidence about the status of the home study approval.” Moreover, even if formal approval of the home study was contingent upon prospective adoptive father having gastric bypass surgery, respondent asserts there is still substantial evidence Mario would be adopted in the near future because prospective adoptive father planned the surgery “within the next few months.”
2. Standard of Review
To terminate parental rights and order adoption, the trial court must find by clear and convincing evidence “it is likely the child will be adopted.” (§ 366.26, subd. (c)(1).) “The issue of adoptability . . . focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642.) However, “[t]he ‘clear and convincing’ standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. (Citation.) ‘ “ ‘The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.’ [Citations.]” (Citation.) ‘Thus, on appeal from a judgment required to be based upon clear and convincing evidence, “the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” [Citation.]’ (Citations.)” (In re J.I. (2003) 108 Cal.App.4th 903, 911.)
3. Analysis
(a)
The record is not crystal clear with respect to the final status of the prospective adoptive parents’ home study report. On the one hand, in the last of the Department’s three memos to the court on the status of the home study report, dated July 12, 2006, the Department requests a 180 day continuance “given that the home study of his current caretakers has not been completely approved due to health concerns.” This request was based on the fact, relayed to the court in the Department’s July 11 memo, that the caseworker “learned from Adoptions supervisor Casey Dixon that the home study, while approved, must now receive administrative approval. It is her recommendation that this approval be given after the foster father’s anticipated gastric bypass surgery. . . ” On the other hand, the Department’s addendum 366.26 report states that the prospective adoptive parents’ “updated home study was approved on June 23, 2006.”
This record raises as many questions as it answers. For example, we are unable to determine (1) whether Dixon’s recommendation was administratively approved by the Contra Costa County & Children Family Services, the licensed county adoption agency responsible for Mario’s placement, (2) whether that recommendation or agency decision was subsequently modified; (3) whether an updated home study was actually approved, and the June 23 date is therefore simply a typographical error, or whether the updated home study approved on June 23 was the same one still under only conditional approval, as indicated in the Department’s memo of July 12, 2006.
Two observations on this evidentiary morass are pertinent here. First, at the October 2006 section 366.26 hearings, appellants raised no objection to, nor sought any clarification of, the addendum report received by the juvenile court, in which it stated that prospective adoptive parents’ home study had been approved. Nor did they make any argument at the hearing that Mario was not adoptable because the prospective adoptive parents’ did not have an approved home study. Generally, a party who does not raise an evidentiary objection below fails to preserve that evidentiary issue for appellate review (see, e.g., Vineyard Springs Estates, v. Superior Court (2004) 120 Cal.App.4th 633, 643), because appellate courts are ill-suited to making such evidentiary rulings in the first instance, (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236).
Moreover, even if we assume this issue is appealable, we do not think the question mark over the status of the prospective adoptive parents’ home study amounts to a legal impediment to adoption, and nothing in the statutes or regulations cited by parents indicates otherwise. In fact, the cases uniformly hold that “the suitability of the prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to the issue of whether a child is likely to be adopted.” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061 noting that “legal impediments to adoption under Family Code sections 8601, 8602, and 8603” pertain respectively to whether a prospective adoptive parent is at least 10 years older than a child unless certain exceptions apply, whether a child older than 12 consents to adoption, and whether a prospective adoptive parent not lawfully separated from a spouse has obtained consent from the spouse].); In re T.S. (2003) 113 Cal.App.4th 1323, 1328 [pursuant to Family Code section 8601, age is a legal impediment only when prospective adoptive parent is not at least ten years older than the child, and holding there is no legal impediment to adoption by grandparents, who were 58 and 61 years old and had not completed physical examinations]; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650 [inquiry may be made into whether there is any legal impediment under the provisions of the Family Code to adoption by prospective adoptive parents but not into “suitability” of prospective adoptive parents]; In re Scott M. (1993) 13 Cal.App.4th 839, 843-844 [same].)
Because the juvenile court did not terminate parental rights in the face of a legal impediment to adoption by the prospective adoptive parents, father’s constitutional due process claim fails.
(b)
Although the alleged lack of an approved home study for the prospective adoptive parents does not present a “legal impediment” to adoption, nevertheless we recognize that in case of a fragile child such as Mario the assessment of adoptability “must necessarily include some consideration of whether the prospective adoptive parents can meet that child’s needs.” (In re Carl R., supra, 128 Cal.App.4th at p.1062) This is because “[a] child who is specifically adoptable and who will need total care for life is at high risk of becoming a legal orphan if parental rights are terminated and the prospective adoptive family is later determined to be unsuitable.” (Ibid.) Thus, “[t]o avoid rendering a total needs child a legal orphan, the assessment of the adoptability of such a child must necessarily include some consideration of whether the prospective adoptive parents can meet that child’s needs, since if the prospective adoptive parents cannot meet the child’s needs, the child cannot properly be found to be adoptable. . . . [¶] The statutory scheme requires the Agency to provide the court with a preliminary assessment of the eligibility and commitment of the prospective adoptive parents for the section 366.26 hearing. That assessment includes a social history, screening for criminal records and prior referrals for child abuse or neglect, together with an assessment of the capability of the prospective adoptive parents to meet the child’s needs, and whether they understand the legal and financial rights and responsibilities of adoption. (Citations.)” (Id. at 1062-1063 [italics added].)
Here, the section 366.26 assessment states that the prospective adoptive father works primarily at home as a fundraiser for a group and foster home agency and has usually provided much of the daytime care for the children at home. The prospective adoptive mother until recently worked as a full time teacher, but recently resigned in order to be home full time with the children until she returns part-time to continue her education in the fall. It states both prospective adoptive parents have “extensive experience in teaching childcare certification, and acting as administrators and serving as educational liaisons for private foster care agency.” The prospective adoptive parents have other children with special needs who are enrolled in special educational programs and “are skilled at advocating for their various needs.” Moreover, although the prospective adoptive father is planning to have gastric bypass surgery in the near future, the prospective adoptive mother “is in excellent health, and her asthma is under control.” Additionally, the assessment states the prospective adoptive parents “have an approved back-up plan with their adult children,” and that the entire family “nurtures each child” and is active and “well organized in their care of their adopted children and birth child.”
In sum, the assessment in this case not only adequately addressed the capability of the prospective adoptive parents to meet Mario’s needs, but indicates they will be able to meet those needs. Indeed, while we share the juvenile court’s sense of tragedy in this case, and although we are moved by the strength and sincerity of the sentiments expressed by appellants at the section 366.26 hearing, we are satisfied that substantial evidence supports the juvenile court’s determination that by clear and convincing evidence Mario is an adoptable child because he is currently in the care of a supportive and nurturing prospective adoptive family who wish to adopt him, who face no legal impediment to such adoption, and whose assessment indicates they are capable of meeting his special needs. (In re Carl R., supra, 128 Cal.App.4th at p. 1061 [when the child is deemed adoptable based solely on a particular family’s willingness to adopt the child, the trial court must determine whether there is a legal impediment to adoption].) Because the court’s adoptability findings are supported by substantial evidence, the court did not err when it determined adoption was in the child’s best interests and terminated parental rights. (§ 366 .26, subd. (c)(1).)
B. Section 388 Motions
1. Contentions
Father contends the order terminating parental rights must be reversed because the juvenile court abused its discretion when it denied parent’s section 288 modification requests. Specifically, and relying on In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.), father asserts the juvenile court applied an erroneous “simple best interests” standard in evaluating whether changed circumstances warranted Mario’s return home, which failed to consider the strength of Mario’s familial relationships. Moreover, he asserts parents met their burden of showing a return to parents’ care was in Mario’s best interests.
Mother also relies on Kimberly F., as well as In re Hunter S. (2006) 142 Cal.App.4th 1497 (Hunter S.) in asserting the court applied an erroneous “simple best interests” standard in evaluating parents section 388 requests. Minor joins appellants’ arguments that the court abused its discretion when it denied their section 388 petitions. Appellants and the minor also assert the juvenile court’s alleged misuse of section 388’s best interests analysis violated their constitutional rights to substantive and procedural due process. On the other hand respondent asserts the court did not abuse its discretion and applied the proper standards in denying parents section 388 petitions.
2. Standards of Review
“Under section 388, the petitioner must show by a preponderance of the evidence either changed circumstances or new evidence and that the proposed modification is in the best interests of the child. (Citations) The grant or denial of a section 388 petition is committed to the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is clearly established. (Citation.) A trial court exceeds the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318)” (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.)
Moreover, “[a]t a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interest of the child. (Citations.)” (In re Stephanie M., supra, 7 Cal.4th at p. 317.) However, when a request for modification, as here, comes late in the proceedings following 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.)
3. Analysis
(a)
In evaluating whether the petitioner has met his or her burden to show changed circumstances, the trial court should consider: “(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, 56 Cal.App.4th at pp. 531-532 [“While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion”].)
Here, record shows the court’s denial of the section 388 requests was not an abuse of discretion under the standards discussed above. The problem which led to the loss of custody was the parents’ deep-seated methamphetamine drug dependency. This is reflected in the fact Mario was taken into custody at birth in September 2004 yet mother was still using drugs while pregnant with Z. in 2005. Indeed, Z. was taken into custody in November 2005 after mother abandoned her residential drug program. Drug dependency is not a problem which is easily ameliorated. Before reunification services were terminated in February 2006, parents had failed in their efforts to address their drug problem—mother failed drug tests and had not committed to counseling or treatment, and father was in denial regarding the seriousness of his drug addiction. However, the court recognized parents had made significant strides in addressing their drug problem since termination of reunification services. Regarding the strength of relative bonds between Mario and both parent and caretakers, the court noted Mario was over two-years old and had never been in parents’ care. On the other hand, the addendum section 366.26 report states that “Mario is thriving in the home of his concurrent parents.” The court also noted Mario was with a family who had demonstrated an ability to meet all of Mario’s needs in dealing with his considerable medical problems, thereby properly according “special weight on the child’s need for stability, as was appropriate at that stage of the proceedings[.]” (In re Stephanie M., supra 7 Cal.4th at p. 319.) In sum, even if parents’ circumstances had genuinely changed, we cannot say that the trial court was unreasonable in concluding it still was not in Mario’s best interests to return to parents’ custody. (Kimberly F., supra, 56 Cal.App.4th at p. 529 [“It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.”].) Accordingly, the trial court did not abuse its discretion by denying parents’ requests for modification pursuant to section 388.
Moreover, this is not a case like In re Hunter S., supra, cited by mother. In Hunter S., the mother was denied the opportunity to re-establish a bond with her child after serving time in prison because the juvenile court failed to enforce its own visitation order when the child would not comply and refused to see his mother. (In re Hunter S., supra, 142 Cal.App.4th at p. 1507-1508.) Here, mother did not establish initially the normal mother-child bond because Mario was removed at birth after testing positive for methamphetamine.
Similarly, in light of the child’s paramount interest in stability after reunification services are terminated (In re Stephanie M., supra 7 Cal.4th at p. 319), we also reject mother’s contention that the trial court abused its discretion by failing to grant her request for alternate section 388 relief in the form of six months of additional reunification services and increased visitation.
(b)
We also reject the contention that the juvenile court applied an erroneous “simple best interests” standard in its section 388 rulings. In Kimberly F., mother had four children, two of whom, Kimberly (10) and Leon (7), were removed from the home and placed with relatives because the home was found to be in an unsanitary condition. At the time, mother was caring for an 18-year old son who had contracted AIDS via a blood transfusion. (Kimberly F., supra, 56 Cal.App.4th. at pp. 522-523.) Conditions in the home had not changed at the 12-month review and a psychological report stated mother had a “narcissistic personality.” (Id. at pp. 523-524) By the 18-month review, there was some improvement in conditions at the home and Kimberly and Leon were doing very well in the care of their parental aunt and uncle. The juvenile court determined a return home would be detrimental to the children and set a section 366.26 hearing. (Id. at p. 524.) After mother’s petition for writ of mandate was denied, she filed for modification under section 388 based on new developments, including the fact that “since the 18-month hearing her house had remained clean and safe” and a different psychologist had examined mother and concluded that she did not exhibit any “psychopathology.” (Kimberly F., supra, 56 Cal.App.4th. at p. 525.) Nevertheless, at the joint section 388/permanency planning hearing, the juvenile court denied mother’s section 388 request and terminated parental rights. On appeal, the Fourth District Court of Appeal concluded the juvenile court’s denial of the section 388 motion was an abuse of discretion. (Id. at p. 526.)
Discussing the trial court’s section 388 ruling, the appellate court noted that “it is undeniable that [mother] showed such a change of circumstance: Her home was no longer in an unsanitary and unsafe condition.” (Kimberly F., supra, 56 Cal.App.4th. at p. 526-527.) The court stated: “The key change was in the condition of the house, which was the only legitimate obstacle to the children’s return.” (Id. at p. 527.)
Ruminating on the nature of the child’s best interests pursuant to section 388, the Kimberly F. court felt it would be unfair “to simply compare the household and upbringing offered by the natural parent or parents with that of the caretakers.” (Kimberly F., supra, 56 Cal.App.4th. at p. 529.) The court described such an approach as the “simple best interest test.” (Ibid.) Moreover, the court stated that “the ‘simple best interest test’ provides an incomplete picture of ‘best interests’ under section 388. It ignores all familial attachments and bonds between father, mother, sister and brother, and totally devalues any interest of the child in preserving an existing family unit, no matter how, in modern parlance, ‘dysfunctional.’ It fails to account for the complexity of human existence, substituting in its stead a one-dimensional comparison which does not adequately address the child as a whole person, including his or her formative years with a natural parent. After all, the Legislature used the plural, “best interests,” rather than the singular “best interest,” thereby indicating a more complex standard than a unidimensional comparison between households.” (Id. at pp. 529-530.)
Rather, the Kimberly F. court concluded a more complex “best interests” test is required in a section 388 proceeding, involving, as we noted and discussed above, at least three components: “(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, 56 Cal.App.4th at p. 532.) The court stated that when this test is applied “the facts uniformly favor the [mother].” (Ibid.) As to the first factor, “a dirty house does not pose as intractable a problem as a parent’s drug ingestion . . . for a child’s ‘best interests[,]’ ” and that problem had been removed. (Ibid.) As to the second factor, the section 388 motion “showed that an undisputedly strong bond exists between the mother and her children . . . [as well as] between the children as siblings.” (Ibid.) And as to the third factor, the court noted the trial judge erroneously adopted the rational that mother had a “narcisstic personality,” stating that “the government cannot separate children from their parents” based on a personality trait as opposed to a real mental illness.” (Id. at 532-533.) Accordingly, the court concluded denial of mother’s section 388 request “really was an abuse of discretion.” (Id. at p. 504.)
Kimberly F., however, does not aid appellants. Here, unlike Kimberly F., the problem which led to the dependency was a serious methamphetamine-abuse drug problem, not simply a housekeeping problem. Nor is it one easily removed or ameliorated by the simple task of housecleaning, as indicated by parents’ earlier failed efforts at drug treatment and testing during the reunification period. Although parents appeared to make significant strides in coming to grips with their drug problem after termination of services, they had nonetheless been drug free [according to the self-administered testing procedures anyway] for only nine or ten months, so the possibility of relapse still remained. Moreover, they had never provided for Mario’s considerable needs during a time when they were drug free. In fact, Mario had never been in parents’ care at any time after his birth. There was no bond between Mario and parents that can be compared to the bond between mother and her much older children in Kimberly F. Nor does this record reflect that the juvenile court applied the type of one-dimensional “simple best interests” test condemned by the Kimberly F. court. The court did not “totally devalue[] any interest of the child in preserving an existing family unit,” nor did it “[in]adequately address the child as a whole person, including his or her formative years with a natural parent.” (Kimberly F., 56 Cal.App.4th at pp. 529-530.) Rather, in determining Mario’s best interests, the court considered the nature of the parents’ problem which led to dependency and their progress in dealing with it, Mario’s age and his considerable special needs, the strength of the bond between Mario and his parents, and Mario’s relationship with the prospective adoptive family, including his progress under their care and their success in meeting his special needs. In sum, we cannot say the juvenile court abused its discretion by denying appellants’ section 388 requests for modification.
Consequently, we also reject appellant’s procedural and substantive due process claims because as applied here the dependency scheme functioned as intended by the Legislature to balance appellants’ interests as parents “in the care, custody and companionship of a child” with the state’s compelling interest “in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.” (In re Marilyn H. (1993) 5 Cal.5th 295, 307.)
DISPOSITION
The juvenile court’s orders terminating appellants’ parental rights with respect to Mario L., and denying their section 388 modification requests, are affirmed.
We concur: McGuiness, P. J., Siggins, J.