In re D.W.

Filed 11/28/05 In re D.W. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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In re D.W., a Person Coming Under the Juvenile Court Law.
SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.B., Defendant and Appellant.	C050271 (Super. Ct. No. J03308)

M.B. (appellant), the mother of D.W. (the minor), appeals from orders of the juvenile court denying her petition for modification and terminating appellant’s parental rights. (Welf & Inst. Code, §§ 366.26, 388.)^[1] Appellant contends the trial court abused its discretion in denying her section 388 petition. We affirm.

STATEMENT OF FACTS

The minor was born in November 2003.^[2] Appellant tested positive for marijuana and amphetamines and the minor exhibited signs of drug exposure. On November 25, 2003, the minor was taken into protective custody. Appellant admitted having used both marijuana and methamphetamine the weekend before the minor’s birth and admitted she had used drugs two to three times per week in the early stages of her pregnancy. Appellant also admitted she had started using methamphetamine again approximately one week earlier to cope with stress. Appellant had a past history of drug arrests and had been ordered to attend a Proposition 36 drug treatment program but had not complied with this order. Dependency proceedings commenced and the minor was made a dependent of the court on March 2, 2004.

On April 6, 2004, a dispositional hearing was held and the court found the minor had to be removed from his parents’ custody. A reunification plan was adopted. This plan required appellant to attend parenting classes, demonstrate parenting skills, participate in a controlled substance assessment and complete recommended treatment, and complete anger management class or couple’s counseling.

On June 25, 2004, the minor was placed in the home of Michael and Sandra B. By November 17, 2004, appellant had failed to complete any of the required courses in her reunification plan and had not visited the minor regularly. The court terminated reunification services.

In November 2004, appellant started visiting with the minor and his other siblings on a weekly basis. The behavior during these visits indicated a lack of interest in and attachment to the minor. The increase in visits and participation in reunification services coincided with the removal of appellant’s three other children from her home.

In March 2005, appellant completed a parenting program. In April 2005, she completed a domestic violence counseling class and in May 2005, she completed a three-month residential drug treatment program. On May 19, 2005, appellant filed a section 388 petition for modification asking that the order terminating reunification services be modified and that the minor be placed in her home with family maintenance services. Appellant alleged the modification was appropriate because she had substantially complied with reunification thereby correcting the reason services had been terminated and that such modification was in the minor’s best interest.

In June 2005, appellant enrolled in an anger management course.

On June 16, 2005, the hearing on the section 388 petition was held. The social worker testified appellant had completed some of the reunification requirements, but noted some significant portions remained incomplete, including the outpatient portion of her drug treatment program. She observed that visits between the parents, appellant’s other children and the minor were somewhat chaotic and appellant still needed work on her parenting skills. She observed that the minor was very attached to his foster parents and sought them out for comfort during visits. She also noted the minor was more attached to his foster parents than his biological parents because he had lived with his foster parents for almost a year but only with his biological parents for a few days.

The court denied appellant’s petition, finding almost no evidence it would be in the minor’s best interest to grant the petition and that it would be detrimental to him to take him away from his foster parents. The court then found the minor adoptable and terminated parental rights.

DISCUSSION

Appellant argues the juvenile court abused its discretion in denying her petition for modification, because the “circumstances had clearly changed, in that [she] had corrected the reasons why services had been terminated by completing a parenting program, domestic violence counseling, a three month residential substance abuse program, and visiting the minor regularly.” Appellant also contends since her other children had been safely living in her home, the minor could safely live with her, and the evidence showed the minor had a relationship with his biological family and it would be better for his long term emotional interests to be with his biological family. We disagree.

Section 388, subdivision (a) provides, in pertinent part: “Any parent . . . may, upon grounds of change of circumstance

or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction.”

Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The best interests of the minor are of paramount consideration when a petition for modification is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the minor, the juvenile court looks to the needs of the minor for permanence and stability. (Ibid.)

“[A] primary consideration in determining the child’s best interest is the goal of assuring stability and continuity. (In re Stephanie M.[, supra,] 7 Cal.4th [at p.] 317.) When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. (Ibid.) That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. (Ibid.) Thus, one moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence, that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child. (Ibid.; § 388; In re Audrey D. (1979) 100 Cal.App.3d 34, 45.)” (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)

“After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Rather, at this point, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child (id. at p. 310); such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. 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, what is in the best interest of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)” (In re Angel B., supra, 97 Cal.App.4th at p. 464.)

Applying these principles, we conclude the juvenile court acted well within its discretion in denying appellant’s petition for modification.

Appellant had a long history of drug use and only a relatively short period of time she had been sober. She used drugs in the early and late stages of her pregnancy with the minor, disregarding the risk to him. Between December 2003, and May 2004, she made only nine out of twenty-seven visits, and between June 2004, and October 2004, she had made only four out of nine scheduled visits. In fact, she did not start consistently visiting the minor until November 2004, nearly a year after he was taken from her custody. Appellant completed no part of her reunification plan between November 2003, and November 2004. In fact, she did not even make an effort toward completing this plan. Appellant’s interest in visiting with the minor and completing reunification services tied directly to the timing of her other children being removed from her home and seemed to relate more to an interest in reunifying with them than with the minor.

As of June 1, 2005, appellant still did not have a stable living situation, she was unable to demonstrate that she could apply the parenting skills she had learned, and she had a difficult time supervising and controlling her children.

In addition, at the time of the section 388 petition, the minor had been living with his current foster parents for almost a year. He was thriving with them and was strongly attached to them. His foster parents wanted to adopt him and had an approved adoptive home study. The minor looked to his foster parents “for his daily needs and for comfort and security. They have a positive parent-child relationship. They love and treat him as they would their own natural child.”

There is no evidence in this record which compels or would even support a different result. Appellant asserts the change in circumstances is demonstrated by her enrollment in and completion of some drug counseling, parenting classes and anger management. However, all she has showed in terms of actual change was a few months of sobriety. That is not sufficient to compel the trial court to grant her motion. (See In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 [“It is the nature of addiction that one must be ‘clean’ for a much longer period than 120 days to show real reform”].)

To rebut the presumption that continued foster care or adoption is in the best interests of the child, a parent must make some factual showing that the best interests of the child would be served by modification.

Appellant has not made such a showing, and it is difficult to imagine how she could have done so. Appellant has never actually parented the minor, he was removed from her custody only four days after his birth. Several months later, he was placed with his current foster family, who has always hoped to adopt him and has provided him a loving stable home. “The [foster] parents in this family clearly, by deed if not by name, were [the minor’s] parents. They, not appellant, provided [the minor] with all the day-to-day, hour-by-hour care needed by a helpless infant and then growing toddler.” (In re Angel B., supra, 97 Cal.App.4th at p. 465.)

Thus, although appellant’s petition states she loves the minor and wants to keep the family together, the fact is she has never lived with the minor and neither have his siblings. Her visits with him “add up to only a tiny fraction of the time [the minor] has spent with the foster parents. On this record, no reasonable trier of fact could conclude that the bond, if any, [the minor] feels toward appellant . . . is that of a child for a parent.” (In re Angel B., supra, 97 Cal.App.4th at p. 465.)

“At this point in the proceedings, . . . [the minor’s] interest in stability was the court’s foremost concern, outweighing any interest [appellant] may have in reunification. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) [Appellant] made no showing how it would be [in the minor’s] best interest to continue reunification services, to remove [him] from [his] comfortable and secure placement to live with [appellant] who has a long history of drug addiction . . . [The minor] should not be made to wait indefinitely for [appellant] to become an adequate parent. (In re Marilyn H., supra, 5 Cal.4th at p. 310.) There was no abuse of discretion in denying [appellant’s] petition.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 251-252.)

DISPOSITION

The orders denying the petition for modification and termination of appellant’s parental rights are affirmed.

NICHOLSON , J.

We concur:

SCOTLAND , P.J.

ROBIE , J.

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^[1] Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.

^[2] Appellant has three other children, older than D.W., who are not the subject of this appeal.