Opinion
E056596
03-13-2013
In re A.C. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.C. et al., Defendants and Appellants.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant C.C. Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant K.E.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIJ120795)
OPINION
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant C.C.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant K.E.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
C.C. (father) and K.E. (mother) appeal from the termination of their parental rights to A.C. (born in January 2012) under Welfare and Institution Code section 366.26. Mother contends the juvenile court abused its discretion in denying her petition under section 388 because she had changed her circumstances. Father adopts mother's argument. We affirm.
All further statutory references are to the Welfare and Institutions Code.
II. FACTS AND PROCEDURAL BACKGROUND
In January 2012, the Riverside County Department of Public Social Services (DPSS) filed a petition under section 300, subdivisions (b) (failure to protect) and (j) (abuse of a sibling) on behalf of newborn A.C. The detention report stated that parents' older child, Ca.C. (also identified in the record as E.C.), had been born in December 2010 with multiple birth defects and testing positive for methamphetamines. DPSS initiated dependency proceedings as to Ca. under section 300, subdivision (b), based on mother's drug use, and reunification services were terminated in January 2012 after the parents failed to comply with their case plan. The matter as to Ca. was scheduled for a hearing under section 366.26. The detention report stated that A. had been born prematurely and spent her first six days in neonatal intensive care, but she tested negative for drugs and showed no signs of withdrawal. Mother stated she had not used methamphetamines since she was four weeks pregnant. She tested negative on a drug test given by the hospital but positive for methamphetamine on two saliva tests administered by a social worker. A later hospital test again showed negative results. Mother, then 18 years old, told the social worker she had used methamphetamine recreationally for about a year starting in February 2009 and had used it about twice a week during 2010. Mother had not obtained regular prenatal care and had visited the doctor only three or so times. The social worker stated it was believed mother's methamphetamine use during her first pregnancy had contributed to Ca.'s birth defects.
Ca. had "a cleft palate and lip, left tibial hemimelia (the congenital absence of the tibia) with posterior and lateral dislocation of the foot, absent left talus, abnormal feet with only four metatarsals which are webbed, and plantar flexion of the right foot." He also had hearing loss that required surgery.
In September 2012, the juvenile court terminated parental rights as to Ca.
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Father, who was 19 years old when the petition was filed, began using methamphetamines when he was 15 years old. He admitted using marijuana in January 2012. He denied knowing mother used drugs during her pregnancy.
At the detention hearing, the trial court found a prima facie case and detained A. The court ordered weekly visitation for parents.
DPSS filed a jurisdiction/disposition report in February 2012. Mother tested negative when she completed drug tests in 2011, although she missed some tests. She failed to complete a court-ordered hair follicle drug test. Both parents reported they no longer used drugs and they wanted to quit. Mother was requesting inpatient substance abuse treatment. Parents had visited A. for the first time since her detention.
At the jurisdiction hearing in February 2012, the juvenile court sustained the amended petition, finding that parents had histories of drug use and had failed to benefit from the reunification services offered them in Ca.'s dependency. The juvenile court denied reunification services under section 361.5, subdivisions (b)(10) and (13). A selection and implementation hearing under section 366.26 was scheduled. The court ordered monthly visitation for parents.
In June 2012, DPSS filed a section 366.26 report. In April 2012, A. was placed in a prospective adoptive home with her brother, and she was doing well. Parents were living in the paternal grandmother's home and were visiting A., although father had not participated in services. Mother planned to enter an inpatient substance abuse program and completed a cooperative parenting class. Parents had missed one visit with A. and had visited her twice since the last report.
Mother filed a section 388 petition in June 2012 seeking an order vacating the section 366.26 hearing and an order for reunification services. She entered a residential treatment facility and expected to complete the program in July 2012. She had also completed the first of three phases of a medically fragile infant training program. In her residential program, she was participating in parenting education, mommy and me classes, anger management, relapse prevention, life skills, early recovery, trauma, criminal addictive thinking, domestic violence, 12-step meetings, step studies, self- esteem, toastmasters, and group and individual counseling. Visitation with A. had been regular and appropriate.
The juvenile court denied mother's petition. The court gave mother credit for having "recently begun the process of attempting to change her circumstances," but found that her circumstances had not yet changed and the requested orders were not in A.'s best interest. At the section 366.26 hearing, counsel for mother and father requested that a legal guardianship be granted in lieu of termination of parental rights, and father argued that the parent-child exception to adoptability applied. The juvenile court found no exception to adoptability existed, found A. to be adoptable, and terminated parental rights.
III. DISCUSSION
Once reunification services are terminated (or denied), "parents' interest in the care, custody and companionship of the child are no longer paramount. Rather . . . 'the focus shifts to the needs of the child for permanency and stability' [citation] . . . ." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) However, the juvenile court may change a prior order if a parent shows both that the circumstances have changed and that a modification of the prior order would be in the child's best interest. (§ 388, subds. (a), (d).) The parent has the burden of proof of establishing both a change of circumstances and the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).) We review an order denying a section 388 petition under the deferential abuse of discretion standard. (Kimberly F., supra, at p. 533.)
The Kimberly F. court identified three factors to guide the court's discretion in considering a section 388 petition: (1) the seriousness of the problem that led to the dependency; (2) the relative strength of the relationships between the child and the parent and the child and the caretaker; and (3) the degree to which the underlying problem has been ameliorated. (Kimberly F., supra, 56 Cal.App.4th at pp. 531-532.)
With regard to the first factor, the underlying problem was mother's methamphetamine addiction. Substance abuse is a serious problem that cannot be easily ameliorated. (See Kimberly F., supra, 56 Cal.App.4th at p. 532.)
With regard to the second factor, mother notes that although she had visited A. only a few times, the visits had been regular and appropriate. In contrast, A. had lived with the prospective adoptive parents for more than two months. In view of A.'s young age (then five months), this factor militates neither for nor against the granting of the petition.
With regard to the third factor, mother had enrolled in a residential treatment program where she participated in a range of educational and counseling programs. Mother was only 17 when Ca. was born and only 18 when A. was born. The drugs tests mother completed in 2011 were negative, although she skipped at least six other scheduled tests in 2011. Her drug use began at age 15, and she argues her habit was not so ingrained that she needed more than a few months of sobriety to change her circumstances. However, mother had used methamphetamine for three years, including during both pregnancies. And although her drug use may have contributed to Ca.'s birth defects, she used methamphetamine during at her next pregnancy, and she did not enter her substance abuse treatment program until May 25, when A. was nearly four months old.
Even a showing of great effort to make improvements will not necessarily be persuasive when a parent has an extensive history of drug use. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [Fourth Dist., Div. Two] [affirming the denial of a section 388 petition when the parents' efforts at drug rehabilitation were only three months old at the time of the section 366.26 hearing]; In re Casey D. (1999) 70 Cal.App.4th 38, 47-48 [affirming the denial of a section 388 petition when the mother with an extensive history of drug use had been drug free for only a few months and had not completed her treatment program]; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206 [mother's very recent treatment for drug abuse and bipolar disorder was not even a prima facie case of changing circumstances].) Although mother's drug abuse was not as longstanding as those of the parents in the above-cited cases, she has provided no evidence, other than her unsupported assertion, that her very recent initiation of treatment would be sufficient to ameliorate her drug problem.
Instead, this case is very similar to In re Baby Boy L. (1994) 24 Cal.App.4th 596, in which the mother failed to participate in reunification services and did not participate in drug counseling or testing until after the section 366.26 hearing had been set. She then petitioned under section 388 asserting changed circumstances in that she was participating in drug counseling, and her drug tests had been negative. On her appeal, the court affirmed the denial of the petition, stating, "[A]t the eleventh hour and the fifty-ninth minute, [the mother] offered a bare scintilla of proof that she was beginning to rehabilitate. But '[c]hildhood does not wait for the parent to become adequate.' [Citation.] A mere prima facie showing of changing—we hesitate to say, 'changed'—circumstances was not enough to require or justify a hearing on return of the child to her after two years." (In re Baby Boy L., supra, at p. 610.) Here, likewise, mother was able to show only that her circumstances were changing, not that they had changed within the meaning of section 388. (See In re Mickel O. (2011) 197 Cal.App.4th 586, 615.)
We conclude the juvenile court did not abuse its discretion in concluding she had not met her burden under section 388 to show changed circumstances.
IV. DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur: MCKINSTER
J.
CODRINGTON
J.