In re Liliana K.

Filed 11/28/05 In re Liliana K. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re LILIANA K., a Person Coming Under the Juvenile Court Law.	B181338 (Los Angeles County Super. Ct. No. CK51903)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. COURTNEY H., et al., Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles County, S. Patricia Spear, Judge. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Courtney H.

Joseph D. Mackenzie, under appointment by the Court of Appeal, for Defendant and Appellant Tim K.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Senior Deputy County Counsel, for Plaintiff and Respondent.

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Courtney H. and Tim K. appeal from orders of the juvenile court denying mother’s petition to modify under Welfare and Institutions Code section 388.[1] They argue that because the section 388 petition should have been granted, the order terminating parental rights in their daughter, Liliana K. must be reversed. We find no abuse of discretion in denial of the section 388 petition, and therefore no basis for reversal of the order terminating parental rights.

FACTUAL AND PROCEDURAL SUMMARY

Liliana and her older half-brother, V., came to the attention of the Department of Children and Family Services (DCFS) when mother was arrested for narcotics violations and receiving stolen property. Mother reported that Liliana’s father was violent, had beaten her, and had put a knife to her throat in the past. A petition alleging the minors came within section 300 was filed in April 2003. Liliana was detained. V. initially could not be located, but eventually was detained and placed with his father, Michael L. At the detention hearing, the juvenile court referred mother for parenting classes, individual counseling, a drug program and testing, and a domestic violence program.

A first amended petition was filed June 4, 2003, alleging the children’s exposure to violent physical confrontations between mother and Liliana’s father, Tim K.; mother’s history of substance abuse; Tim K.’s history of substance abuse, violence, and present incarceration for making terrorist threats. The jurisdiction/disposition report by DCFS stated that mother had agreed to attend an outpatient substance abuse program with random testing, domestic violence counseling, conjoint counseling with V., and parenting classes. She had been provided referrals for these services. As of June 4, 2003, mother had tested clean one time, and missed three other tests. She told the social worker that she did not know she had to continuously test.

Mother and Tim K. pleaded no contest to the first amended petition. The petition was sustained as amended, the children were declared dependents, and family reunification services were ordered. Mother was ordered to participate in a program of drug rehabilitation with random testing, domestic violence counseling, parent education, and conjoint and individual counseling. In August 2003, the case manager in mother’s drug program reported that for the preceding two-month period, mother had missed 25 of a possible 55 days of group programs. Mother had missed three random tests; the rest were negative.

The DCFS six-month review report for December 2003 stated that Liliana continued in foster care, and was happy and well-adjusted. Mother continued to search unsuccessfully for suitable housing and reported that she worked periodically. She was in “serious jeopardy” of being dismissed from her drug program because she had failed to meet requirements for attendance, testing, participation, and individual counseling. Mother had been assigned an individual therapist, but had never appeared for treatment. Mother’s case manager at the program reported that mother did not comply with the parameters of the program, would not reveal where she had been living, was inconsistent with her excuses and behaviors, and blamed others rather than taking responsibility for her problems. Her attendance in October 2003 was three out of a possible 21 days. Mother had not complied with the ordered domestic violence counseling. She had missed at least 10 random drug tests, although the results were negative when she did test. Mother had been fairly conscientious about visitation. Liliana’s father, Tim K., had recently been released from jail.

The court ordered additional reunification services and set the 12-month review hearing for June 2004. In February 2004, mother entered a residential drug and alcohol treatment program. By April, she remained an in-patient, and had made progress in attitude and attendance, but still needed to work on her drug therapy.

The 12-month family reunification review report stated that Liliana was thriving in foster placement and was very bonded with her foster mother. In mid-June 2004, mother moved into a sober living transitional housing program to continue drug treatment and testing. She was to begin domestic violence classes. But mother did not acknowledge her drug problem and stated that her children were detained for no reason. Mother and father Tim K. had visited Liliana weekly. Liliana’s foster mother had expressed interest in adopting and had undergone an adoption home study. DCFS recommended termination of family reunification services.

A contested hearing was set for July 2004. The DCFS report for that hearing stated that mother was in partial compliance with her program, having completed a four-month residential alcohol and drug recovery program and a parenting class, and having taken three domestic violence classes. Since April 2003, mother had tested negative 35 times, but had failed to appear for testing 26 times, which were treated as positive tests. At the time of the report, mother was living in a sober living transitional housing program. She had maintained weekly visits with Liliana. Father was also in partial compliance. DCFS recommended termination of reunification services for both mother and father.

The court expressed concern that neither mother nor father had adequately addressed the domestic violence issues, and therefore the court could not find that either was in substantial compliance with their programs. It found by clear and convincing evidence that reasonable services had been provided or offered, and terminated family reunification services as to both mother and father because there was no substantial probability that Liliana could be returned to either parent.

On November 22, 2004, mother filed her first section 388 petition on behalf of both V. and Liliana, seeking unmonitored visitation, including weekend overnights with V. and placement of Liliana with her in a sober living facility. Mother alleged changed circumstances because she had continued to drug test on a regular basis since July 26, 2004 with all tests negative, had continued to live in a sober living environment, had received domestic violence counseling, had completed Parents Beyond Conflict, and had consistently visited the minors. The petition was set for hearing on December 15, 2004. Mother filed a second section 388 petition on December 12, 2004, which concerned problems in visitation with V. only.

DCFS filed an ex parte application on December 15 , 2004 in response to mother’s section 388 petitions. It recommended terminating jurisdiction as to V. (age 12), with a family law order granting joint legal custody to Courtney H. and Michael L., with primary physical custody with Michael. As to Liliana, DCFS strongly opposed placement with mother. It claimed mother had made minimal progress in addressing substance abuse issues. In the 19 months of DCFS jurisdiction, mother had only tested consistently for the last five months. Mother had only recently (no date given) begun to address her extensive domestic violence issues. She had not completed her domestic violence program. DCFS recommended termination of parental rights and adoption as the permanent plan.

At a hearing on December 15, 2004, the juvenile court reconsidered its order granting a hearing on mother’s November 22, 2004 section 388 petition and denied a hearing as to that petition. The court also denied a hearing on mother’s second section 388 petition.

As to V., the matter was continued to January 19, 2005 for a contested judicial review. As to Liliana, the matter was continued to the same date for a continued contested permanent plan hearing under section 366.26. Mother appealed these orders on December 15, 2004 (No. B179932). We have dismissed that appeal as moot in light of the subsequent developments in the case.

On February 17, 2005, mother filed her third section 388 petition. Mother apparently sought to have both V. and Liliana placed with her. The petition was brought on the ground that mother had maintained consistent sobriety; had continued to random drug test; had independent, stable housing; and had maintained constant visitation. She attached a copy of her rental agreement and the results of recent drug tests, although we note that the copies in the record on appeal are poor.

The juvenile court held a combined hearing on the section 388 petition and for permanent planning under section 366.26 on February 23, 2005. It granted a hearing on the section 388 petition “[out of an] abundance of caution.”

Mother testified that her most recent section 388 petition was based on her progress. She sought to have Liliana placed with her. She did not seek custody of V., but wanted more visitation. She withdrew her request to have V. placed with her, but did not want him to move to Texas with his father. Father’s attorney said that he had drafted an order giving joint legal custody of V. to both parents, with physical custody to father and overnight visits for mother. Mother’s attorney said that his client’s earlier appeal from denial of the section 388 petitions was now moot, in light of the most recent section 388 petition. He also stated that he would advise mother to speak with her appointed appellate attorney to drop the appeal as to V.. Mother stated that this was all right with her.

The remainder of the hearing concerned Liliana. Mother stated she was currently enrolled in a domestic violence course, having started the course in July 2004. She no longer had any relationship with Liliana’s father. She asked for separate visitation with Liliana, apart from father’s visits. According to mother, Liliana had lived with her for nearly eight months before she was detained. Mother described positive visitation with herself, V., and Liliana.

Mother said she had consistently submitted to drug tests for over one year, during which time there was no positive test. She was living alone in an apartment, and was employed. She opposed DCFS’s recommendation that her parental rights as to Liliana be terminated. She based her opposition on the existence of a significant bond between them which would create a detriment to Liliana if mother’s parental rights are terminated.

Counsel for Liliana argued that mother’s efforts were too little, too late. Liliana was 30 months old at the time of the hearing, had spent only her first seven to eight months with mother, and had been in foster care for the remainder. Counsel argued that monitored visitation of one hour a week, which was sporadic at the beginning of the case, could not establish a bond between Liliana and mother. Counsel disputed mother’s testimony that she tested consistently for a year, pointing out six no shows as of the July 26, 2004 DCFS report. Apparently, consistent testing did not begin until August 2004. Liliana’s counsel also questioned mother’s compliance with domestic violence counseling and individual counseling. Counsel argued that V.’s relationship with Liliana did not meet the standard for the section 366.26, subdivision (c)(1)(E) exception.

Liliana’s counsel asked the court to deny mother’s section 388 petition, arguing that a change in circumstances had not been demonstrated because mother still had not completed the case plan. She also argued that mother had failed to demonstrate that return of Liliana to her custody would be in the best interests of the child. Counsel for Liliana asked the court to terminate mother’s parental rights, arguing that mother had not established the section 366.26 exception.

Counsel for V. argued that her client very much opposed termination of mother’s rights as to Liliana. A letter he wrote the court was admitted and read, in which he said he loved his sister, and did not want her adopted.

Counsel for DCFS argued that the section 388 petition should be denied, since mother had failed to comply with the case plan and therefore could not demonstrate changed circumstances. She also argued mother had failed to show that returning Liliana to her would be in the best interests of the child.

DCFS argued that under section 366.26, clear and convincing evidence established that Liliana is adoptable, based on the adoption assessment and the foster mother’s commitment to adoption. DCFS agreed with Liliana’s attorney that the pattern of visitation between mother, V., and Liliana was not enough to establish the bonds required to establish the exception under section 366.26, subdivisions (c)(1)(A) and (c)(1)(E). She said she hoped that V. would be able to have a relationship with Liliana if mother’s parental rights were terminated.

The juvenile court commended mother on her improvement, noting that for a long time she had been resistant to the case plan. But it found that mother had not complied fully with the plan. It found that mother had failed to demonstrate that removing Liliana from her foster placement and placing her with mother would be in her best interests. The court denied the section 388 petition.

Moving to the section 366.26 hearing, the court said: “The court must find by clear and convincing evidence that Lily is adoptable. Obviously she’s with someone who wants to adopt her, who is capable, I think, of being a good mother.” Although the court recognized V.’s bond with his sister, it concluded that it had not been demonstrated by clear and convincing evidence that Liliana had the necessary bond with her brother and mother. Mother’s parental rights as to Liliana were terminated, and her custody was transferred to DCFS for adoptive planning and placement.

As to V., the juvenile court terminated dependency jurisdiction with a family law order. His parents were awarded joint legal custody, with physical custody and residence with father. Mother and Liliana’s father filed timely appeals from the orders.

DISCUSSION

I

Mother argues the juvenile court erred in denying her February 17, 2005 section 388 petition because she demonstrated changed circumstances and proposed a change that was in Liliana’s best interests.

“Section 388, subdivision (a) allows a parent to petition to change or modify a previous order ‘upon grounds of change of circumstance or new evidence.’ The petition must allege why the requested change is ‘in the best interest of the dependent child.’ (§ 388, subd. (b).) ‘[T]he 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 interests of the child.’ (In re Stephanie M. (1994) 7 Cal.4th 295, 317 [27 Cal.Rptr.2d 595, 867 P.2d 706].) ‘The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.’ (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416 [33 Cal.Rptr.2d 85, 878 P.2d 1297]; see also, In re Stephanie M., supra, at p. 318.)” (In re Andrew L. (2004) 122 Cal.App.4th 178, 190.)

Mother argues she met her burden of showing a sufficient change in circumstances. The issue here is whether her progress was too late, compelling a conclusion that the juvenile court did not abuse its discretion in denying the petition. The original dependency petition was filed in April 2003. It alleged that Liliana was at risk of serious physical harm under section 300, subdivision (a) because of the violent physical confrontations between her mother and father. The petition also alleged mother was unable to protect Liliana because of her substance abuse problem (§ 300, subd. (b)). Mother argues that by the time her third section 388 petition was filed, she had stopped using drugs, had ended her relationship with Liliana’s abusive father, and had secured stable housing and employment.

Mother discounts her failure to comply with court-ordered domestic violence counseling and her missed drug tests by arguing that she had nonetheless refrained from engaging in domestic violence and had stopped using drugs. She argues: “Her failure to follow the Department’s specific path to recovery did not undermine the fact that she had ‘done a whole lot showing she’s changed.’”

In order to demonstrate that it was in Liliana’s best interest to be placed with her, mother claims to have demonstrated an ability to overcome the significant drug use and domestic violence issues which resulted in juvenile court jurisdiction. Mother claims a substantial bond with Liliana because the child lived with her for the first eight months, and because she had maintained consistent visitation. She acknowledges a bond had formed between Liliana and the foster mother who had cared for her for 20 months, but contends there is no evidence to establish that it would be detrimental to the child to sever that bond.

DCFS argues that even if it were conclusively established that mother had stopped using drugs and had addressed the domestic violence issues by no longer seeing father, an abuse of discretion is not shown. It cites evidence that despite the juvenile court’s orders emphasizing the need to comply with domestic violence counseling, it had taken mother more than a year to enroll. She had not completed the program as of the date of the section 388 hearing, and said that she attended classes “as much as I can.” In light of mother’s failure to complete domestic violence counseling, DCFS argues that her termination of the relationship with Liliana’s father does not ensure that the problem was resolved.

As respondent argues, cases have held that simple completion of the court-ordered classes does not, in and of itself, show prima facie that either the requested modification or a hearing would be in the minor’s best interests. (In re Angel B. (2002) 97 Cal.App.4th 454, 463, citing § 388; Cal. Rules of Court, rule 1432(c); In re Jasmon O., supra, 8 Cal.4th at p. 415; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) While she made commendable progress, mother did not demonstrate that she had overcome the problems that led to Liliana’s removal because she had not yet completed the key domestic violence and individual counseling programs.

Moreover, mother did not demonstrate the trial court abused its discretion in concluding that returning Liliana to her would not be in the child’s best interests. The problem is that mother’s progress came after the court terminated reunification services in July 2004. The third section 388 petition was filed in February 2005, more than six months after services were terminated. “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 [19 Cal.Rptr.2d 544, 851 P.2d 826].) 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 454, 464.)

The record establishes that 29-month-old Liliana had been placed with her foster mother, who wanted to adopt her, for more than 20 months. There was a significant bond between them. Liliana had received outstanding care. Mother has failed to show that removing Liliana from the foster mother’s care would have been in the child’s best interests. We find no abuse of discretion in denial of the section 388 petition.

II

Mother argues that the improper denial of her section 388 petition “corrupted” the section 366.26 findings and order. That is her only challenge to the section 366.26 proceeding. In light of our conclusion that there is no basis to reverse the denial of the section 388 petition, it follows that there is no basis for reversal of the findings and orders under section 366.26.

III

Father, Tim K., filed two purported appeals from the denial of mother’s section 388 petition, and from the termination of parental rights. Father claims he has standing to appeal from the denial of mother’s section 388 petition. He acknowledges that he was only in partial compliance with his reunification program, but cites his ongoing visitation with Liliana. He also contends that “his interests in his relationship with Liliana are interwoven with Lilana’s own interests in her relationships with both of her parents.” He fully supported return of Liliana to mother.

Father joins in mother’s arguments regarding denial of the section 388 petition, rather than raising his own. Because we find no basis for reversal in mother’s arguments, we need not resolve the standing issue, and reject father’s argument on that ground.

As to the order terminating parental rights, father argues that we must reverse as to him if we reverse as to mother. Since we do not reverse as to mother’s rights, it follows that father’s argument must be rejected.

DISPOSITION

The orders denying mother’s February 17, 2005 section 388 petition and terminating mother’s and father’s parental rights as to Liliana are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P.J.

We concur:

CURRY, J.

WILLHITE, J.

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[1] All statutory references are to the Welfare and Institutions Code.