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In Re Serena L.


October 11, 2011


(Super. Ct. No. JD227224)

The opinion of the court was delivered by: Raye , P. J.

In re Serena L.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Tina E., mother of the minor, appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.)*fn1 Appellant contends the court abused its discretion in denying her petition and erred in not finding termination would be detrimental to the minor because the minor would benefit from continued contact with her. We affirm.


The 10-month-old minor was removed from appellant's custody in March 2008 after she was found in the care of her intoxicated maternal grandmother.*fn2 The maternal grandmother, a methamphetamine addict, was unconscious and had to be hospitalized. Appellant was intoxicated when she arrived two hours late to pick up the minor. The incident occurred a month after appellant had completed voluntary substance abuse treatment services for methamphetamine addiction. Appellant admitted she had a 10-year polysubstance abuse history. The court sustained the petition and ordered reunification services for appellant.

At the six-month review hearing, the court ordered the minor returned to appellant under supervision. Over the next six months, appellant continued to test negative and appeared to have a commitment to sobriety. The social worker recommended termination of the dependency. However, just prior to the review hearing scheduled in April 2009, the social worker discovered appellant had been arrested for driving under the influence (DUI) in December 2008. Appellant failed to inform the social worker about the relapse, which occurred a month after appellant completed two outpatient programs. The court ordered continued supervision of the minor in appellant's home.

By the next review report in October 2009, appellant had a second arrest for DUI and was not fully participating in services. The minor appeared to be very bonded to appellant and had no behavioral issues. The court continued supervision.

In December 2009 the social worker filed a section 387 supplemental petition alleging appellant failed to benefit from services and was arrested for a third DUI. An amended petition alleged the existence of the prior DUI convictions and that appellant was discharged from treatment in August 2009 for failure to participate. Appellant's blood-alcohol level was three times the legal limit for each of her DUI convictions. Appellant began services pending a hearing on the petition, although the social worker recommended termination of services. The court sustained the section 387 petition in April 2010, terminated services, and set a section 366.26 hearing.

Appellant filed a section 388 petition for modification in August 2010 seeking return of the minor or reinstatement of services. Appellant alleged she had completed residential treatment, had entered a transitional living program to continue outpatient treatment, and was testing negative. Appellant had also completed a bonding assessment. Appellant alleged the proposed orders were in the minor's best interests because they had a close bond, and appellant had demonstrated her commitment to recovery and was able to provide a stable home for the minor. The bonding study, performed by Dr. Miller in July 2010, was based in part on information from the foster mother that the minor anticipated visits with appellant and acted out after visits. Dr. Miller concluded the minor saw appellant as her primary parental figure. Dr. Miller noted the minor was developing symptoms of reactive attachment disorder (RAD) and if the disorder did develop, it could have long-term consequences. Dr. Miller concluded that the minor had a substantial positive emotional attachment with appellant and would suffer significant harm and emotional detriment in the short term if the relationship were terminated, and that the harm would likely continue unless the minor developed a strong bond with an adoptive family. Dr. Miller had serious concerns whether the minor was able to form a strong bond with an adoptive family.

The assessment for the section 366.26 hearing stated appellant had regular and consistent visits with the minor. The minor was transitioned into a new home in August 2010 because the prior foster mother was not interested in adoption. The current foster parents had seen no extreme acting out since the transition and viewed the minor's behavior as age appropriate. The assessment concluded the minor was generally adoptable and there was no detriment to the minor in terminating appellant's parental rights.

Dr. Miller performed a second bonding study in September 2010, observing the minor with both appellant and the current foster parents. Dr. Miller found the minor had a positive relationship with both appellant and the foster parents. He concluded the minor still had a substantial positive relationship with appellant and would suffer some harm, on at least a short-term basis, if parental rights were terminated. The minor had developed a close relationship with the current foster parents, and if that developed into a strong bond, then the minor might not suffer long-term detriment. Dr. Miller questioned the accuracy of the current foster parents' reports that the minor did not ask about her mother and did not display extreme behaviors. According to Dr. Miller, if these reports were not accurate, long-term harm from termination of parental rights remained possible. However, if things went well for the minor in the current home, the stability offered would probably outweigh the benefit of continued contact with appellant.

At the combined hearing on the section 388 petition and termination of parental rights, Dr. Miller testified in accordance with his earlier evaluations. He stated the minor could form attachments and that RAD could be treated. Dr. Miller further testified that termination of parental rights would harm the minor in the short term, i.e., for one to two months. He reiterated that if the foster parents' reports about the minor were true, it would alleviate even the short-term concerns.

The former foster parent testified about the minor's extreme behaviors, including calling for her mother, while in her care. The current caretakers testified the minor was doing well in their home, rarely asked about appellant, and seemed happy with them. The social worker ascribed the differences seen in the minor's behavior by the former and current caretakers to differences in parenting styles. The social worker further testified that, because the minor had a healthy emotional attachment to appellant and had not been moved too many times, the minor would be able to transfer that attachment to the current caretakers and appeared to be doing so.

Appellant testified about her history in treatment programs, her current success in ongoing substance abuse treatment programs, her 10 months of sobriety, and her commitment to recovery.

In ruling on the petition for modification, the court found appellant credible but questioned whether it could be convinced that she had changed her life. The court concluded appellant had shown only that circumstances were changing and had not met her burden of showing that the proposed modification, which would delay permanency, was in the minor's best interests.

In addressing the benefit exception to adoption, the court found, based on the parties' concession, clear and convincing evidence appellant established she had regular contact with the minor. Citing the relevant law, the court considered whether the minor would benefit from continued contact with appellant. The court discussed the difference between Dr. Miller's first and second evaluations and, in light of the evidence, used the decisional tools provided by Dr. Miller to determine that the benefit of a permanent home outweighed the benefit of continued contact with appellant.


Appellant contends the court abused its discretion in denying her petition for modification because she demonstrated the minor was strongly bonded to her, she had been sober for 10 months, and she was successful in her recovery.

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.*fn3 "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a 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 evidence showed she had remained sober for 10 months and was currently in the final after-care stage of her substance abuse treatment. Her service providers were sanguine about her prospects for continued recovery. Appellant herself was able to articulate how her circumstances and outlook on recovery were different from the multiple times she had attempted sobriety before. However, appellant had an admitted polysubstance abuse history stretching back a decade. She had not completed her after-care treatment and still had to begin treatment programs related to her DUI convictions. Historically, appellant's pattern was to complete programs and relapse. Her most recent relapses into alcohol abuse were not a mere drink or two but sustained drinking which resulted in blood-alcohol levels three times the legal limit, ignoring the pleas of the half sibling. Because appellant's substance abuse history was extensive, it was necessary for her to demonstrate an extended period of stability and sobriety to justify returning the minor to her care. The minor, who was at risk of RAD due to multiple moves occasioned by appellant's inability to remain sober, needed a secure, safe, and stable home. Appellant did not establish that circumstances were sufficiently changed that she could provide such a home. The court was not required to risk the minor's mental and physical health to give appellant yet another opportunity to try. The court did not abuse its discretion in denying the section 388 petition.

Appellant argues that the court's comment: "But can I be convinced mom has changed her life?" suggests that the court applied a clear and convincing rather than a preponderance standard of proof. Appellant insists she did not have to "convince" the court of anything. The argument is specious. Appellant had the burden of proof on both changed circumstances and best interests of the minor and thus had to "convince" the court by a preponderance of the evidence to prevail. Nothing in the court's discussion of the section 388 petition or its ruling suggests that it was unaware of the law or the correct burden of proof. On the contrary, the court assured counsel during argument that it was aware of the law.


Appellant asserts that the court erred in failing to find she had established the benefit exception to termination because substantial evidence supported the application of the exception to this case. We disagree.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several "'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.' If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368 [citations omitted].) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)

One of the circumstances in which termination of parental rights would be detrimental to the minor is: "The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The benefit to the child must promote "the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. . . . If severing the natural parent/child relationship would deprive the child of a substantial positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Here, the evidence showed, and the parties agreed, that a positive emotional attachment continued to exist between the minor and appellant. The sole question to be addressed by the court was whether the minor would be greatly harmed by severing the bond. Dr. Miller's studies and testimony gave the court the necessary tools to assess the evidence. Dr. Miller said that, if the current caretakers' statement about the minor's behavior and reduction in inquiries about the mother were true and if the positive bond between the minor and the current caretakers strengthened, both long- and short-term harm to the minor would be decreased and the benefits of permanency would outweigh the benefits of continued contact. The court extensively reviewed the evidence, resolving any conflicts, discussed reasons for finding various witnesses credible, and found both predicate facts to be true. The court specifically found no evidence that the minor was still emotionally upset and anxious about separation from appellant. Thus, while the court could find some harm to the minor in terminating parental rights, it could not find the minor would be greatly harmed by severing the parent/child bond. Consequently, the court correctly found that the benefit exception did not apply.

In making its initial rulings on the benefit exception, the court stated: "All parties concede, and I so find clear and convincing evidence in this case that the mother has met her first burden under the analysis, the first prong. That is she has maintained regular visitation and contact with the child." Appellant asserts the court incorrectly required appellant to prove the exception by clear and convincing evidence rather than by a preponderance as required. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) We disagree.

It is true the court stated that it found the first prong of the exception by clear and convincing evidence; however, the point was conceded by the parties and the particular burden of proof was immaterial. In its subsequent lengthy discussion of the evidence and its reasons for making predicate factual determinations, there is nothing to indicate that the court did not understand the appropriate legal standards or applied a heightened standard of proof in deciding the ultimate fact of whether continued contact with appellant outweighed the benefit of a stable home, thereby rendering termination of parental rights detrimental. Where the standard of proof is well settled, we presume the court applied the appropriate standard, absent evidence to the contrary. (Ross


Superior Court (1977) 19 Cal.3d. 899, 913-914; Evid. Code, § 664.) We find no support in the record for this contention.


The orders of the juvenile court are affirmed.

We concur: ROBIE , J. MAURO , J.

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