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In Re M.M. et al., Persons Coming Under the Juvenile Court v. K.M

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


May 19, 2011

IN RE M.M. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. PLACER COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
K.M., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. 53-002757 & 53-002758)

The opinion of the court was delivered by: Nicholson Acting P. J.

In re M.M. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

K.M., mother of the minors, appeals from orders of the juvenile court denying her petitions for modification and terminating her parental rights as to M.M.*fn1 (Welf. & Inst. Code, §§ 366.26, 388, 395 [further undesignated statutory references are to the Welfare and Institutions Code].) Appellant contends the juvenile court abused its discretion in denying her petitions for modification because she showed changed circumstances and a bond with the minors. Appellant further argues that the court erred in finding that the beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i) did not apply to defeat the preference for adoption as a permanent plan. We affirm.

FACTS

The minors, three-year-old M.M. and 13-year-old T.C. were detained in February 2009 due to ongoing substance abuse by appellant and her arrest on drug charges. Appellant had been involved in polysubstance abuse for over 25 years. The court ordered a reunification plan in May 2009. Appellant's failure to participate in the plan led the court to terminate appellant's services in March 2010 and set a hearing to select a permanent plan for the minors.

Appellant filed petitions for modification in July 2010, seeking an order for renewed reunification services. Appellant alleged that after court-ordered services were terminated, she entered a residential treatment program and had now completed the 90-day program which included classes and therapy sessions on parenting, anger management, domestic violence and relapse prevention. All appellant's drug tests while in the program were negative. Appellant further alleged that the proposed change was in the minors' best interests because she was appropriate in visits, had a strong bond with the minors and was pregnant with the minors' sibling. The petitions were set for hearing.

The status review report in April 2010 stated T.C. was placed with his paternal grandmother and enjoyed visits with appellant although he did not always choose to attend them. M.M. was placed in a foster home where the caretakers were working with him to control his explosive outbursts. Over time, his outbursts had decreased and he was able to follow directions. M.M. also enjoyed visits with appellant.

At the hearing on the petitions for modification in August 2010, appellant testified about the various services she had completed. She planned to begin an outpatient program and move from residential treatment to transitional housing. She admitted using methamphetamine for several months after the minors were removed and again in October 2009. Appellant also acknowledged a drug test in November 2009 which was positive for cocaine, but stated she had been sober since March 2010. She testified her current program was highly structured with daily classes. With the various programs available in the residential treatment facility, she was "in something every day, all day." Through therapy, appellant discovered she was clinically depressed and testified she is now on medication for it.

Appellant further testified the proposed modification was in the minors' best interests because she was never in services before and is currently successful in dealing with her substance abuse and other issues. She later acknowledged she had been in an outpatient program during the reunification period but was terminated for lack of participation. Appellant stated that she understood she needed to be clean and sober and wanted a chance to be the mother that she could be. Appellant characterized her visits with M.M., which occurred every other week, as "great." She anticipated she would be able to reunify with him before the end of six months of services. Appellant testified she understood T.C. wanted to stay as placed with his paternal grandmother and was not asking for him to be returned to her custody.

Appellant's counselor from the residential treatment program testified she did not recall appellant saying she was using drugs following the minors' removal. The counselor stated that appellant needed at least 12 months of aftercare and long-term therapy including additional anger management work since appellant still suppressed her anger. The counselor testified appellant mentioned abuse of methamphetamine and prescription pain medication but not cocaine.

The social worker testified this was the first time appellant had acknowledged a relapse in October 2009 and the social worker was not aware appellant continued to use drugs after the minors were detained. The new information raised concerns about appellant's long-term prognosis and potential for relapse. She testified that the difference between the reunification period and the last few months was that appellant was now actively participating in the various programs.

The maternal grandmother testified that when M.M. was in her home following removal from appellant's custody, he was a "holy terror," angry, threatening and screaming. She further testified M.M. was now a different child, happy and thriving in his foster home. She also testified that T.C. was no longer an angry child and appeared to have come to grips with the overall situation.

Following argument, the court took the matter under submission, indicating the ruling would precede the selection and implementation hearing. At the hearing, the court stated it had reviewed the case file and all reports. Based, in part, on appellant's history of relapsing into substance abuse, the court concluded she only had shown circumstances were changing but not changed. Further, the court found no evidence that the proposed change was in the minors' best interests. The court denied the petitions for modification and appointed a guardian for T.C. The mother submitted on the selection of a permanent plan for M.M. without further discussion. The court found by clear and convincing evidence M.M. was likely to be adopted. The court further found none of the statutory exceptions to the preference for adoption applied, specifically addressing the beneficial relationship exception, and terminated parental rights as to M.M.

DISCUSSION

I

Appellant contends the juvenile court abused its discretion in denying her petitions for modification because she presented evidence of changed circumstances and the minors had a bond with her. Further, she argues that, in recovering from addiction, she could provide a living example to the minors which would be in their best interests.

A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances.*fn2 "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.]" (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)

The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

Appellant's argument that the court abused its discretion discounts her lengthy history of substance abuse. While she recently participated successfully in a highly structured in-patient program and had been clean and sober for five months, appellant has barely begun the journey to a sober life. Even appellant's program counselor testified that appellant needed at least a year of after-care and long-term therapy. Appellant bears the burden of a quarter-century of polysubstance abuse to overcome. She must demonstrate in an unstructured environment that she has learned to sustain sobriety in the face of the serious challenges in her life. The court correctly concluded that appellant's circumstances are changing, but not sufficiently changed at this point to disturb the stability which both minors have gained. (In re Casey D. (1999) 70 Cal.App.4th 38, 48-49.)

Further, appellant presented no evidence that destabilizing the minors by reopening services was in their best interests. T.C. had finally come to terms with his removal and appellant's problems. M.M. was emerging from serious temper problems which led to verbal and physical outbursts. He had gained a degree of self-control and was able to interact positively with those around him. Stability and permanence were in the best interest of both minors. Reinstating reunification services so they could witness appellant's "living example" of sobriety, assuming that occurred, was not. The juvenile court did not abuse its discretion in denying the petitions for modification.

II

Appellant contends the court erred in finding the beneficial relationship exception to the preference for adoption as a permanent plan did not apply.

We observe that appellant submitted at the selection and implementation hearing. While such a submission would not prevent her from arguing substantial evidence questions relating to adoptability or other issues which the Placer County Department of Health and Human Services had the burden to establish, exceptions to the preference for adoption must be asserted by the parent who, therefore, has the burden of establishing the exception. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of court, rule 5.725(d)(4); Evid. Code, § 500.) Appellant did not assert through evidence or argument that any exception applied in this case. The fact that the court gratuitously ruled on an issue which was not before it, does not transform the issue into a viable contention on appeal. The contention is not properly before us on appeal and is forfeited, having not been raised first in the juvenile court. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558-559; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)

DISPOSITION

The orders denying the petitions for modification, appointing a guardian for T.C. and terminating parental rights as to M.M. are affirmed.

We concur: ROBIE J. MAURO J.


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