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

May 19, 2011


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

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

In re M.M. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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 ...

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