In re Ramona R.

Filed 11/28/05 In re Ramona R. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re RAMONA R., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. H.L., Defendant and Appellant.	G035346 (Super. Ct. No. DP009332) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber, Judge. Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, and Saul Reyes, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

H.L., appeals from the denial of her petition under Welfare and Institutions Code section 388^[1] and the subsequent termination of parental rights to her daughter, Ramona R. The mother contends she made a showing that her circumstances had changed and that providing her with additional reunification services would be in Ramona’s best interests. She also claims the juvenile court should have found that adoption would be detrimental to Ramona because it would sever the significant and beneficial bond between them. We find the mother’s arguments are without merit and affirm.

FACTS

Ramona R. was detained at birth, in October 2003, when both she and her mother tested positive for methamphetamine. After discharge, the mother left the hospital, and the social worker was unable to contact her. She was located in the Orange County Jail a week later, having been arrested for violating probation, possessing methamphetamine, and driving without a license. The mother admitted she had been using drugs for ten years and described herself as an addict. She received very little prenatal care while pregnant with Ramona. Her parental rights to two other children, Ramona’s half-siblings, had been terminated in March 2003. She was released to an inpatient drug treatment program in January 2004, but she left without permission after three weeks and dropped out of sight.

Ramona was placed with her paternal grandmother on December 30. In early February 2004, a dependency petition was sustained on her behalf under section 300, subdivisions (b) [failure to protect], (g) [abandonment with no provision for support], and (j) [sibling abuse]. Although the mother was not present at the hearing, she was given a case plan requiring her to complete a parenting class and a drug treatment program, submit to random drug testing twice weekly, and show her ability to live free from alcohol and drugs. The mother was allowed supervised monthly visits with Ramona.

Shortly before the six-month review hearing, in July 2004, the social worker located the mother, who was again incarcerated in the Orange County Jail. She had made no contact with the social worker since January; she had not seen Ramona since detention. The mother appeared at the hearing in custody, where the court terminated reunification services and set a selection and implementation hearing.

The mother filed a section 388 petition in December 2004, seeking more reunification services or a 60-day trial visit with Ramona. The mother declared she had been incarcerated from May 31 until September 24, 2004, during which time she took three 12-hour parenting classes and a 12-hour substance abuse course. Upon her release, she immediately enrolled in an inpatient substance abuse treatment home in Downey as a condition of her probation. She continued to live there and was participating in drug testing, group and individual counseling, and daily “AA/NA” meetings. The mother asked the court to “give me a chance to prove that I can be a healthy and caring mother to my daughter.”

Proceedings were continued to February 2005. In late January, the mother submitted an addendum to her section 388 petition, informing the court that she continued to attend classes and counseling and undergo drug testing as part of the inpatient program. She had been consistently attending monitored visits with Ramona since October 30, 2004 for two hours every two weeks. “We play games, I change her diapers and I feed her. My daughter calls me ‘Mommy.’” The mother stated her program would allow Ramona to be placed with her there until she completed the inpatient phase in March 2005; the mother was looking for “sober living homes for mothers and their children” to live in afterward.

The trial court granted a hearing on the mother’s section 388 petition. By the time of the hearing, the mother had just graduated from the inpatient phase of her program and was waiting for available transitional living arrangements. The mother’s drug counselor testified she was working hard to stay clean and sober; the counselor had no concerns about relapsing. The mother testified that, notwithstanding her long history of drug use, she did not believe she would use drugs again. “I believe this is the first time in my life that . . . I’m learning how to cope with things that happen in everyday life, people, places, and things, without using drugs. [¶] And I have a good support team, which includes my family. And I’ve met a lot of people that are sober, which I hadn’t done before. I think that’s the biggest difference.”

The juvenile court denied the mother’s petition, finding that in light of her long-term drug addiction to methamphetamine, “just the completion of a recovery house” was not enough to demonstrate changed circumstances. It pointed out the mother enrolled in the program as a condition of probation and had been in a controlled environment the entire time she had been sober. “[L]ong-term addiction, and it’s a strong addiction, and mother is in a controlled living environment at this particular time. She’s not dealing with the everyday stresses of life. . . . Mother has relapsed in the past, and that was a big criteria point for the court.”

The court proceeded to the selection and implementation portion of the hearing. The reports prepared by the social worker indicated Ramona was thriving in the paternal grandmother’s care, and the paternal grandmother was eager to adopt her. The court found Ramona adoptable. It also found the mother had not shown her relationship with Ramona was so beneficial that terminating parental rights would be detrimental to the child. “The mother did not visit the child for over a year, and mother did not start services for over a year. . . . [¶] . . . I find no positive attachment of the child to mother and father. The parents did have the opportunity, but waited so long to get started that it just hasn’t come forth on their part.” The court terminated parental rights.

DISCUSSION

The denial of the mother’s section 388 petition was not an abuse of discretion.

Section 388 allows a parent to petition for a hearing to modify a prior order of the juvenile court based on a change of circumstance which would make modification in the best interests of the child. After reunification services have been terminated, or the court has determined that they should not be offered, the interest of the child in stability and permanence takes precedence over the parent’s interest in reunification. Thus it is presumed that the child’s interest will be best served by non-parental custody. The presumption is rebuttable, however, and “[s]ection 388 provides the ‘escape mechanism’ . . . built into the process to allow the court to consider new information.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The burden is on the parent to prove changed circumstances so as to revive the reunification issue. (Ibid.)

Section 388 does not clearly delineate two separate prongs. It states first that “any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court”; and second that “[i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order a hearing.” Case law has interpreted the statute’s wording to mean that both (1) a change of circumstance and (2) a showing that the proposed modification is in the best interests of the child be present for a petition to be granted. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Daijah T. (2000) 83 Cal.App.4th 666, 672; In re Zachary G. (1999) 77 CalApp.4th 799, 807-808.) Whether the previous order should be modified is within the sound discretion of the juvenile court, and this court will not disturb its determination unless a clear abuse of discretion is shown. (In re Andrew L. (2004) 122 Cal.App.4th 178, 190; In re S.M. (2004) 118 Cal.App.4th 1108, 1119.)

The mother failed on both prongs. Since the juvenile court terminated reunification services in July 2004, the mother had maintained sobriety for ten months, four while in prison and six while in a court-ordered inpatient program. But she had not yet proved her ability to be drug free while unsupervised and dealing with the everyday stresses of life. In other words, her circumstances had not changed significantly enough to assure the juvenile court that she could provide Ramona with security and stability. Consequently, extending the reunification period and postponing permanency for Ramona was not in the child’s best interests.

The “benefit exception” does not apply to Ramona.

At the selection and implementation hearing, the juvenile court must terminate parental rights if the child is adoptable and no exceptions apply. (§ 366.26, subd. (c).) The so-called benefit exception allows the juvenile court to avoid the termination of parental rights if it “finds a compelling reason for determining that termination would be detrimental to the child . . . [because]: [¶] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).)

Once the child is found to be adoptable, the burden of proof shifts from SSA to the parent to show that an exception to termination of parental rights applies. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.) The burden is substantial because at this stage of the proceedings, it is the child’s right to permanency that is of paramount concern. The parent’s right to reunification, which is the primary focus until reunification services are terminated, is no longer an issue; the focus has shifted solely to the child. (In re Marilyn H., supra, 5 Cal.4th 295, 307.)

The mother had been visiting Ramona every two weeks for five months. Although the visits were pleasant, they do not translate into the type of relationship necessary to derail adoption. To qualify for the statutory exception, the relationship between parent and child must confer such “a substantial, positive emotional attachment . . . that the child would be greatly harmed” by its severance.

(In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) There is no evidence that Ramona and her mother have such an attachment.

DISPOSITION

The judgment terminating parental rights is affirmed.

SILLS, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

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