Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD18193
ELIA, J.N.S. and K.E. appeal from a judgment of the juvenile court pursuant to Welfare and Institutions Code sections 388 and 366.26, denying N.S.'s petition for modification seeking reunification with N.E., denying the paternal grandparents' petition for modification seeking placement of N.E., and terminating the parental rights of N.S. and K.E. They contend that the juvenile court erred in denying N.S.'s petition for modification. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
N.E. was born in May 2007 to appellants N.S. and K.E. N.E. tested positive for cocaine at birth and experienced problems due to N.S.'s drug use during the pregnancy. Because of N.E.'s condition, and the admitted drug use of N.S. and K.E., N.E. was placed in foster care. Her five-year-old half-brother Brandon was also placed in foster care. N.E. and Brandon were not placed together because N.E. needed a foster home that was experienced with drug-addicted babies.
Brandon was born during N. S.'s marriage to a man now deceased. K.E. acted as a stepfather to Brandon.
The Santa Clara County Department of Family and Children's Services (Department) filed petitions under section 300 as to both children. On July 16, 2007, the juvenile court found the allegations of the petitions to be true. On August 6, 2007, the juvenile court ordered N.E. removed from her parents' care and ordered reunification services including drug testing and classes for both parents.
The status review report dated February 4, 2008, recommended continued reunification services for K.E. and N.S. N.S. had not adhered to her case plan. The report said that N. S. "is a good mother in many ways, but her substance [ab]use has placed the children in danger." K.E. had been making "strong progress on his case plan services" but had only been sober for three months. The report noted that K.E. "has not worked due to his substance abuse, incarceration and treatment, but he has an income from his father and employer [D.E.]." Brandon, who is fluent in English and Farsi, had been placed with his maternal aunt. N.E. was still in a foster home.
D.E., N.E.'s paternal grandfather, had asked for N.E. to be placed with him and his wife. In August 2007, the social worker had assessed their home but the grandparents "did not feel they could handle placement and that Brandon was too active causing the grandfather to have chest pains." D.E. proposed that N.E. be placed with him and that N. S. "provide care for the baby under the grandparents' supervision." By November 2007, "the grandparents decided that they could not provide the physical care for the child and were not willing to hire a care provider for her."
In the March 3, 2008, addendum report, the social worker said that she was "highly concerned about the current status of the parents' sobriety and reunification with the children." K.E. had not been drug-testing and N.S. had tested positive for cocaine. Both K.E. and N.S. had missed many visits with N.E. D.E. told the social worker about a possible relative placement for N.E. The proposed placement was with a 20-year-old single mother with a one-year-old baby.
The April 14, 2008, updated status review report recommended terminating reunification services to N.S. and K.E. as to N.E. and setting a section 366.26 hearing for a permanent plan for N.E. The report recommended continuing reunification services for N.S. as to Brandon. Brandon was living with his maternal aunt but plans were being made to place him with his maternal grandmother in Iran.
Neither K.E. nor N.S. had drug-tested, attended drug classes, or visited N.E. since early February. The proposed relative placements for N.E. had all been ruled out. Grandfather D.E. had contacted the social worker and wanted to talk about having N.E. placed with him and having him hire a nanny. He was denied caregiver home approval and filed a grievance to challenge this determination. A grievance hearing was held and the decision to deny placement was upheld. D.E. then told the social worker that he wanted to adopt N.E. but have her placed with another relative. Another woman, who identified herself as D.E.'s daughter, said she was willing to adopt N.E. During the approval process, it was discovered that she was not actually D.E.'s biological daughter and thus, she could not be considered for a relative placement. N.E. was in a foster home that was willing to adopt her. The foster mother was "Iranian/Persian."
On April 14, 2008, the juvenile court held a contested review hearing. The Department submitted the matter on the reports. Counsel for K.E. cross-examined the social worker who had prepared the reports. At the conclusion of the hearing, the juvenile court terminated reunification services for K.E. and N.S. as to N.E. and set a permanency planning hearing pursuant to section 366.26. The court continued Brandon's case to a 12-month review hearing.
N.S. left the courtroom during this testimony saying, "If I don't have my... daughter I am not going to have my son. If you don't give me my kid right now, today, I am not going to have none of them."
K.E. filed a petition for writ of mandate challenging the juvenile court's decision to terminate reunification services. On July 3, 2008, in In re N[.] E., H032828, this court denied that petition.
On December 1, 2008, the juvenile court began hearings to consider three matters. The first was a modification petition filed May 30, 2008, by N.E.'s grandparents seeking their appointment as guardians. The second was a modification petition filed by N.S. on September 30, 2008, requesting either additional family reunification services or family maintenance services. The third matter was the section 366.26 hearing. The parties agreed that the two petitions for modification would be heard first, and, if these petitions were denied, the evidence from those hearings would also be considered at the section 366.26 hearing.
The petition for modification filed by N.E.'s grandparents asked the court to make them N.E.'s guardians. They proposed that N.E. could live with Sarah E., whom D.E. considered his daughter although she was not biologically related, and that Sarah would bring N.E. to them every day. Alternatively, they asked that the court place N.E. and Brandon in their home and that they would supervise N.S. and make other arrangements for the care of N.E. if N.S. started using drugs or was otherwise unable to care for N.E. The petition for modification filed by N.S. asked the court for additional family reunification services, family maintenance services, or family maintenance services on the condition that she live with the grandparents. The foster parents with whom N.E. had been living filed for, and were granted, over the objections of the grandparents and K.E., de facto parent status.
In a report prepared for the hearing, court appointed child advocate (CASA) Eleanor Willemsen recommended that N.E. stay in her fost-adopt home. She said, "Placement with the biological mother would seriously and negatively impact [N.E.'s] now normal development." The report prepared by social worker Regina Faridnia stated the N.E. was highly adoptable with some mild developmental delays. Faridnia said that although N.S. "has made some recent progress regarding her sobriety there was over a year in which she did not make use of available services." She noted that K.E. "has been through many drug programs and has been unable, at this point, to maintain any substantive sobriety outside of incarceration." Faridnia noted that N.S. had "made some changes in the last three months" but that "it is too early to determine if the changes would be long lasting." She noted that after a visit in January 2008, N.S. "expressed a desire not to visit her children and did not even ask about visiting them again until May 12, 2008.
D.E., grandfather of N.E., testified that he had been a successful businessman in Iran, with a master's degree in architecture, when he, his wife, and their son K.E. came to the United States. He said that he came here, worked hard, paid his taxes and "made millions of dollars." When N.E. was taken away at birth, he took N.S. into the family to "teach her to do the right things." He bought N.S. and K.E. a "nice, big house" in Los Gatos. He said that he did not know that N.S. was using drugs during her pregnancy. He believed that his son, K.E., despite 10 years of arrests and jailing, would now be "okay" "because of his daughter." D.E. understood that one reason an earlier petition to try to obtain custody of N.E. was denied was because of his health. He said that now that he had a pacemaker he was fine. His wife had had back surgery and was still taking pain pills.
In an interesting exchange between D.E. and Bob Masterson, who was representing N.E., while Masterson cross-examined him about his health, Masterson asked D.E. how old he was. D.E. replied that he was 72. Masterson responded, "I'm 80, so there we are."
D.E.'s wife, N.E.'s grandmother, testified that N.S. took very good care of Brandon. She identified a number of pictures of friendly visits between the family members and N.E. When asked if she believed that K.E. had a drug problem, she said, "he used to but not right now."
Dr. Eleanor Willemsen, the CASA, testified that her background on the subject of child attachment and development included a Ph.D. from Stanford in developmental psychology. She had written articles and taught classes on the subject of attachment. She had seen N.E. once a week for an approximate total of 70 hours. Going into considerable detail about her observations of N.E., she opined that N.E. was strongly attached to her fost-adopt parents.
Regina Faridnia testified about N.S.'s compliance with her case plan. She said, "There were lots of people that tried to provide support and encouragement to – to work on the case plan but she was still very – very much resistant throughout most of the case until this last couple [of] months." She said that N.S. was still resistant in certain areas. Her concern was that "there are two people who have substance abuse history, that one could influence the other to... relapse pretty easily."
When asked if N.E. had a "strong attachment" to N.S., Faridnia replied, "I wouldn't say a strong attachment. I think that that was affected by the breaks, especially the long break in visitation between February and June. But I do think [N.E.] responds to her mother. I think that she enjoys playing with her." She did not think that N.E. would "experience detriment" if her "contact and relationship" with N.S. was severed. Faridnia testified that she did not believe that the fost-adopt parents had done anything to sabotage the family's visits with N.E.
Several visitation supervisors testified to happy, loving visits between N.E. and her family members and many photographs of these visits were introduced into evidence.
K.E. testified that he came to the United States when he was 12 years old. He had studied architecture and had an AA degree in fashion design. He was working a couple of hours a day for his father's company doing property supervision.
K.E. acknowledged that he had been released from Elmwood November 18, 2008, and said that he had been "clean for months before that." Although he had been an addict for 10 years, he said that when he was arrested in May, he decided that he had to give up drugs. He acknowledged that he had not participated in any programs while at Elmwood. He had been in custody a total of eight months out of N.E.'s 18 months of life. He had seen N.E. five times, three of which were when she was in the hospital after her birth. K.E. said that N.S. had always been against drugs but that when she caught him using she asked to try it. He testified, "That was a mistake.... I let her try it and that's where all hell broke loose." K.E. said that he wished to marry N.S. "[w]hen she says yes to me." The longest period of time he and N.S. had been together without using drugs was the three weeks from his release from Elmwood until the date of the hearing. He was not currently in any program or receiving any counseling.
N.S. testified that she was from the city of Ahvaz in Iran. She and her husband moved to the United States where their son Brandon was born. There were "incidents of domestic violence" in the marriage and they separated. Her husband died of cancer when Brandon was five years old. She and Brandon moved to San Jose when she decided to live with K.E. She said that she would not marry K.E. until he "proves himself" and would leave him if he started using drugs again.
N.S. testified that the social worker had asked her to turn over Brandon's passport and other documents. She said that she could not find them, but later acknowledged that she had violated the court's order to produce these documents because she "didn't want [her] child to travel." She acknowledged that although she knew that her contact with Brandon was limited by court order, she had supplied him with a cell phone and her telephone number. She said, "I didn't know that's going to be a problem."
N.S. testified that initially she had refused to go to any programs or attend any meetings. She said that she had now been attending meetings for six months and had had a sponsor for three months. She said that she was attending 12-step meetings three times a week, sometimes in the evening and sometimes in the morning. She had no record of attending the morning meetings because she would forget to take the meeting slip after those meetings. N.S. admitted that she had violated another court order by seeing Brandon at his placement with her sister in Sacramento without the social worker's permission. She testified that her sister had been lying to the social worker about this because, "She didn't want to make the situation worse for me."
N.S. testified that, although the court had told her at N.E.'s dispositional hearing that she would have only six months to complete the reunification program, and since she was not employed and was "just home... there was no reason why [she] couldn't go out and do these services." She continued to test positive for cocaine and refused to go to detoxification when a bed was offered at one facility. After the termination of reunification services in April 2008, she tested positive for cocaine in June. She had recently begun random drug testing. She testified that she was under court order to attend three meeting per week, although NA recommended that at first she attend 90 meetings in 90 days. She started attending meetings in July but was not attending on a daily basis because she had "things to do." K.E. had not attended any meetings with her because he wanted to spend time with his family. N.S. acknowledged that both she and K.E. were at risk for relapse.
N.S. had not been opening the mail that she received from the Department because "all they have, it's bad news." In the last three or four months she had begun opening mail from the Department. N.S. testified that she had known for some time that she was supposed to drug test every other day. When asked why she did not comply with this order, she answered, "Maybe I was busy." She knew that there was a court order that she attend domestic violence counseling, but said that when she contacted that group they told her to call her social worker. She called the social worker who was on vacation. She did not attempt to re-contact the social worker because she "was busy."
Counsel for K.E. and the grandparents urged the court "to read every line of every visit... [b]ecause that's where [N.E.] tells us what she wants. And [N.E.] tells us that she wants to be returned to her blood family." He said that "the issue of wealth in this case is a very touchy issue.... [W]e must guard that we are not prejudiced against this family because of their circumstances." He argued that N.E. "should be back with her blood family. She should have her birth right.... And she should have a Persian name. She was born to it. And it is what she deserves to have."
Counsel for N.S. said that N.S. had attended 12-step meetings and parent orientation and had visited N.E. regularly for the past six months. She argued that N.S. had "been clean and sober for five and a half months." Counsel asked the court to take judicial notice of Brandon's case in which, at the 12 month review, the court noted "a change in the mother's progress in the last several months." Counsel asked the court to apply the relative placement preference and place N.E. with the grandparents.
Counsel for the Department argued that "We all hope that [N.S.'s circumstances] are changing but they are not changed." Counsel said that N.S. did not appear to be "wholeheartedly engage[d] in services." Counsel said that N.S.'s "recent efforts should also be weighed against her previous failings over the last 18 months." Counsel pointed out parts of N.S.'s testimony concerning receiving services as "not at all credible." Counsel said, "The mother admitted to violating court orders in the past but promises now to do whatever she is told. She testified that she chose when she wanted to drug test but promises now that she'll do whatever she needs to [do]." Counsel argued that "both of the parents are in the very early stages of recovery and if we're asking to delay the child's stability and permanency with a family that has loved her and effectively adopted her as their own at this point, then I think we're doing a great disservice to the child and we're not following the intent of what the Legislature said."
Counsel for the defacto parents pointed out that N.E., now 19 months old, had never lived with N.S. and K.E. and that she was now attached to her fost-adopt family. Counsel argued that K.E. and N.S. "have no history of sobriety while living together other than for approximately three weeks: November 18th to the present."
On December 5, 2008, the court said that it considered N.S. "a work in progress and we don't know whether that is going to continue to go well or go badly." The court said that N.S.'s five months of sobriety was "a very short period of time. It's a time after services have been terminated. [¶] It's a time when we have to make a permanent plan for [N.E.]." Given a chance to respond, counsel for K.E. and the grandparents told the court that "this little Persian girl was born to a family of wealth and privilege and that the court should not take that away from her."
In ruling on the section 388 petitions, the court reviewed the statute and said, "I have racked my brain trying to devise a way that I could grant one of the 388 petitions so [N.E.] could be with her blood relatives. In light of everything I have read and heard I cannot do that." The court noted that prior to the termination of reunification services N.S. "made little or no effort to comply with the court's case plan for reunification" and observed "it was disturbing to hear [N.S.] did not comply with her case plan because she was too busy." The court cited to In re Casey D. (1999) 70 Cal.App.4th 38. The court said that N.S. "seems to be trying to change and I give her credit for that. And she's trying to deal with her drug addiction. But, unfortunately, this is too little, too late." The court recognized that the grandparents' "age and health preclude them from assuming the duties of parents or guardians.... The paternal grandparents' plans appear to be attempts to obtain guardianship of [N.E.] so that the mother, father would de facto have [N.E.] back." The court denied both section 388 petitions. The court proceeded with the section 366.26 hearing considering all the evidence that had been adduced at the section 388 hearings.
At the section 366.26 hearing, N.S. did not contest that N.E. was adoptable. Her counsel argued that she had maintained regular visitation and that N.E. would benefit from continuing the relationship with her and with Brandon.
On December 8, 2008, the court was prepared to decide the issues of the section 366.26 hearing. Counsel for K.E. argued that although one could view N.S. as having "done too little too late. But... the proper view, given that she is the birth mother, should be better late than never." This prompted the court to say that it felt that, in addition to the efforts being too little too late, there was "a sense of arrogance, ignorance, I am not sure what, on the part of the mother." It said that N.E.'s initial removal should have served as a "wake up call."
N.S. then made an emotional plea stating, "If I'm clean, even God cannot take my kids away from me." The court responded by essentially scolding her, saying, "Where was that passion for your children when you didn't do anything the Court ordered you to do and you told the social worker on two separate occasions that you didn't want your children back. Where was that passion when you had the opportunity to do it and you didn't do it.... Well, guess what. You had an opportunity. You were given an opportunity. And you waited until the law says it's too late. It's too late for you to come to court and then say, gee, I'm working on turning myself around, because the child involved in this case is too young. At 18 months we're supposed to have a permanent plan.... and because you didn't take the opportunity given to you by the Court for the reunification, you put the situation the way it was before me. I didn't do it."
N.S. told the court twice, "I finally did it." The court responded, "That's the thing. You haven't finally done it. You may be a work in progress in terms of trying to get back your life from your addiction. But the fact of the matter is that the law says you're to do it on terms specified by the Court. And the terms are specified and you ignored them. And now you feel that you should get a second chance. Well, how long can [N.E.] wait until you become an adequate parent? How long? And the answer is she's not going to wait any longer." The court then terminated the parental rights of N.S. and K.E. to N.E. and freed her for adoption.
Discussion
D.E. and N.S. contend that the juvenile court erred in denying N.S.'s section 388 petition for modification. Section 388 is a general provision permitting the court, "upon grounds of change of circumstance or new evidence... to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (§ 388, subd. (a).) The statute, an "escape mechanism" that allows the dependency court to consider new information even after parental reunification efforts have been terminated (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316), permits the modification of a prior order only when the petitioner establishes by a preponderance of the evidence that (1) changed circumstances or new evidence exists; and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Once reunification services have been terminated, the focus of dependency proceedings becomes the promotion of the child's interest in a placement that is stable and permanent and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) There is a rebuttable presumption that foster care is in the child's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The presumption becomes more difficult to rebut where the child's permanent plan is adoption and the child has lived in the prospective adoptive home for a significant period of time. (In reAngel B. (2002) 97 Cal.App.4th 454, 464-465.) A parent seeking an order for reunification services after they have been denied has the burden of proving by a preponderance of the evidence that the benefit to the child of resuming reunification efforts outweighs the benefit the child would derive from the stability of the permanent placement. (Ibid.) The fact that a bond exists between the parent and the child is not sufficient to meet this burden. Rather, the parent must affirmatively show that the bond is sufficient to outweigh the child's other needs, including those for "permanency, consistency, structure and insightful parenting." (In re Dakota H. (2005) 132 Cal.App.4th 212, 231.)
The grant or denial of a petition brought under section 388 is committed to the sound discretion of the juvenile court. (In re Stephanie M. supra, 7 Cal.4th at p. 318.) Its "ruling should not be disturbed on appeal unless an abuse of discretion is clearly established." (Ibid.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
N.S. contends, "The court abused its discretion by denying [N.S.'s] 388 petition." She argues, "[N.S.] demonstrated changed circumstances with a reformation of the problems that led to N.E.'s removal." K.E. argues, "The trial court's ruling regarding the change of circumstances amounted to an abuse of discretion because, given the statutory framework and legislative intent regarding section 388, [N.S.]'s efforts and their subsequent results were neither too little nor too late."
N.S. argues that her addiction to drugs was "short-term." She calculates the length of her addiction as 19 months, from her usage during her pregnancy with N.E, to the date of her last positive drug test in June 2008, and notes, "By the time of the section 388 hearing, it was conceded even by the social worker that [N.S.] had a solid six months of abstinence and recovery." She notes that "the conditions of reunification are not so inflexible that every parent must march in lockstep to the goal line according to the internal rules and regulations of the social service agencies and their service providers."
The trial court cited In re Casey D., supra, 70 Cal.App.4th 38. In Casey D., the mother of the dependent child had been drug free for approximately five months when the trial court heard and denied her section 388 petition wherein she had sought a return of the minor to her care or a long term plan of foster care with reunification services. The reviewing court observed the mother "had an extensive drug history with a tendency to engage in treatment programs when required to do so by outside agencies and then relapse once the requirement was lifted." (Id.at p. 48.) In affirming the denial of the mother's section 388 petition, the reviewing court stated that "[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 child's best interests." (Id. at p. 47.) The Casey D. court concluded that because the trial court had found that the mother's circumstances were changing and not changed, granting her petition would not be in the minor child's best interests given the minor's entitlement to stability.
Appellants point to factual differences between N.S.'s situation and that of the mother in Casey D. Indeed, N.S. had not used drugs for as long as that mother. But N.S. began using drugs while she was pregnant and continued to use them after the birth of N.E. when she lost custody of her newborn daughter. Drug usage during a pregnancy shows a choice to feed one's habit regardless of the risk to one's unborn child, an alarming indication of the strength of the addiction. She was also using drugs while caring for Brandon, another indication of putting one's desire for drugs over the welfare of one's child. Given N.S.'s resistance to treatment until after reunification services had been terminated, and her evasive, cavalier, and offhand responses to cross-examination about compliance with her case plan, the trial court had ample reason to question whether her current state of sobriety would last.
K.E. contends, "the Court applied the wrong legal test to the changed circumstances analysis and effectively raised the parent's burden of proof." He argues, that "despite its recitation of the correct legal test, [the court] proceeded as though it was too late to consider return to the parent in the post reunification period" and "by minimizing [N.S.]'s efforts and deeming them too late for serious consideration, the court effectively raised the parents' burden of proof." The court did, in fact, state the correct legal test. We see nothing in the court's remarks to indicate that it required a different burden of proof in the post reunification period, but the court could rightly consider N.S.'s delay in attaining sobriety as bearing on its sustainability.
K.E. contends, "The Court's best interest analysis was faulty and amounted to an abuse of discretion." Pointing out there had been little observation of the recent visits, he argues that "neither the CASA nor the social worker were in a position to produce solid, credible evidence about the relationship between [N.E.] and [N.S.]." In addition to the testimony of Willemsen and Faridnia the court had before it photographs, visitation logs, and testimony concerning the relationship between N.S. and N.E. Given that N.S. had never lived with N.E. and thus had never been in a parental role as to N.S., it is not difficult to understand why the court, viewing the totality of the evidence concerning their visits, ruled as it did.
In Kimberly F., on which appellant relies, the Court of Appeal rejected a trial court's use of a simple best interest test -- of comparing the household and upbringing offered by the natural parent or parents with that of the caretakers -- in analyzing a section 388 petition. (Kimberly F., supra, 56 Cal.App.4th at pp. 526-530.) The appellate court then determined a list of factors, not meant to be exhaustive, should be considered: the seriousness of the problem leading to dependency and the reason that problem was not overcome by the final review; the strength of relative bonds between the dependent children to both parent and caretakers and the length of time a child has been in the dependency system in relationship to the parental bond; and, the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Id.at pp. 530-532.)
Although appellant interprets the Kimberly F. factors as those applicable to determining a child's best interest on a section 388 request, the Kimberly F. court described the factors it identified as a "basis on which to evaluate a section 388 motion," that is both elements: changed circumstances and best interests. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) We agree with Kimberly F. to the extent it rejects a "simple best interests" analysis and references the strength and comparable length of a child's existing bonds as factors to be considered in assessing whether a return of custody or a resumption of reunification services would be in a child's best interests. (See Stephanie M., supra, 7 Cal.4th at p. 325.)
However, Kimberly F. fails to take into account the state Supreme Court's analysis in Stephanie M. of best interests once reunification efforts have failed. Thus, we do not find Kimberly F. persuasive in this regard. Given appellants' failure to establish that N.E.'s interest in permanency and stability would be promoted by the granting of the petitions for modification, we conclude the court did not abuse its discretion by denying those requests. (Stephanie M., supra, 7 Cal.4th at p. 318.)
K.E. argues, "The court did not give proper consideration to the reason the problem leading to dependency was not overcome during the reunification period." He states, "[I]f anyone was in a position to make a sustained recovery, it was [N.S.] because her drug addiction was not long-standing and she had lived a drug free life before the problem that precipitated the dependency case." He claimed that the trial court's view was "unnecessarily harsh." The court's attitude was clearly based on the witness's demeanor while testifying, as well as her rather offhand disregard for previous orders of the court. Appellant essentially invites this court, from the cold record, to second guess the juvenile court's view of a witness's sincerity in her testimony that she would remain drug free. This we will not do.
K.E. contends that "the evidence regarding [N.E.]'s attachment to her caretakers and other evidence of detriment from transfer to [N.S.]'s custody carried only superficial credibility." He discusses Willemsen's stated opinion that "children who are older than 6-8 months are generally not resilient enough to transfer their attachment from one caretaker to another without detrimental consequences to their psychological development, and the worst time to disrupt a child's secure-base attachment with a new placement is at 18 months." He argues that "[t]he problem here is, although the general principles of childhood attachment as articulated by Willemsen undoubtedly have merit, dogmatic adherence to the underlying hypothesis eviscerates the dependency scheme." There is no reason to believe that the trial court felt it had to employ dogmatic adherence to the theories to which Willemsen testified. The trial court undoubtedly considered that N.E. had been with her present caretakers for half of her life and had never lived with N.S. This certainly gives more than superficial credibility to the view that it would be in N.E.'s best interest to remain in her current placement.
K.E. contends, "[N.E.]'s extended family was an important factor indicating reunification was in her best interests." He cites to Faridnia's testimony that the closeness of this family "raised concerns about the grandparents' ability to keep appropriate boundaries if the parent were to start using again." He points out that the family members had pledged to abide by any restrictions by the court on keeping K.E. from the home if need be, and the grandparents' considerable financial resources to provide for both N.S. and N.E. Appellant argues that the juvenile court "erroneously discounted the value of [N.E.'s] extended family in the best interest analysis" and that, "Instead of embracing speculative evidence regarding the grandparents' ability to protect [N.E.] in a carefully crafted program of family maintenance, the court should have returned [N.E.] to her mother, utilizing the grandparents as a resource for the minor's protection." We have no doubt that the juvenile court tried to find a way to return N.E. to her birth family. The court said so, stating, "I have racked my brain trying to devise a way that I could grant one of the 388 petitions so [N.E.] could be with her blood relatives." We recognize that the juvenile court's decision was heartbreaking for N.E.'s birth family, and hope that, with the cooperation of N.E.'s adoptive parents, her grandparents will be able to play a role in her life. But, after reviewing the record, we agree with the juvenile court's overall assessment of the evidence and arguments urging the court to grant the petitions for modification, that, "In light of everything I have read and heard I cannot do that." The juvenile court did not abuse its discretion in denying N.S.'s petition for modification.
Disposition
The orders appealed from are affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.