IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
November 26, 2012
IN RE J.N., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
L.P. ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. JD231319)
The opinion of the court was delivered by: Murray , J.
In re J.N. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
L.P. (mother) and Jerry N. (father) appeal from orders of the juvenile court terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 Mother contends the court erred in denying her petition for modification and that there was not substantial evidence the minor was likely to be adopted in a reasonable time. Father joins these arguments and contends that if the orders are reversed as to mother, they should also be reversed as to him. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has a 22-year history of methamphetamine abuse and a criminal history dating back to 1993, including 17 drug-related convictions and prior court-ordered substance abuse treatment. She has been diagnosed as co-occurring -- substance abuse and anxiety disorder.
Father has cognitive delays and a history of substance abuse. He was found incompetent to stand trial in a criminal case in 2009. He receives services through Alta Regional Center, and his case worker reported that he is incapable of caring for a child.
Both parents have a child welfare history. Mother's parental rights to an older child were terminated as a result of her addiction. That child was adopted by the maternal grandmother. Of father's six other children, parental rights to four had been terminated, a permanent plan of guardianship had been ordered for another, and the last had been adjudicated a section 602 ward of the juvenile court.
The minor in this case was born when mother was in state prison. After birth, the minor was voluntarily placed with S.G., a family friend, due to father's inability to care for the minor. After mother was released, the minor was transitioned back to mother's care in late January 2011 and remained there until mother was returned to custody in early February 2011 following a positive drug test.
In February 2011, the Sacramento County Department of Health and Human Services (Department) filed a petition to remove the then seven-month-old minor from parental custody due to parental substance abuse and neglect. At the initial hearing, the court ordered the minor detained and placed with S.G.'s mother. Father was unable to care for the minor due to his developmental delays. According to both the maternal grandmother and S.G., the minor had seizures as a baby.
The jurisdiction/disposition report recommended bypassing services for both parents due to their lengthy histories of substance abuse and resistance to court-ordered treatment. The report stated that the minor was doing well in placement and growing. The minor was assessed by the Easter Seals Society to determine if a neurological evaluation was necessary. S.G. was completing paperwork to permit the court to place the minor in her home.
An addendum report in June 2011 stated that mother had completed her Proposition 36 substance abuse treatment program and was reported to be active in the program with a positive attitude. She was testing negative. Nevertheless, the social worker continued to recommend bypass of services, observing that 90 days of sobriety with a 22- to 25-year history of substance abuse was "a mere drop in the bucket" of what the parents would need to remain sober and parent the minor. The report further stated that the minor was being monitored by the Easter Seals Society for possible developmental issues.
A letter to the court from S.G. in August 2011 reiterated that the minor had ongoing medical issues, including seizures, which required frequent doctor's visits and consultations with specialists.
A second addendum report in September 2011 discussed visitation issues, including mother's attempts to manipulate the visit supervisor and her failure to follow directions. Mother appeared to be more concerned about her rights than about the minor.
The juvenile court heard testimony over several days and, on October 6, 2011 sustained the petition, found that the bypass provisions of section 361.5, subdivision (b)(13) applied and set a section 366.26 hearing. In its ruling, the court acknowledged that both parents had done well in treatment following mother's release from jail at the end of February 2011. The court noted that mother had begun to understand that substance abuse did have a negative effect on raising a child. However, the parents had not established that they had the capacity to parent a young child with medical issues. Further, mother did not understand the potential obstacles to her rehabilitation from substance abuse and had no plan on how to deal with the potential for relapse. And she did not acknowledge father's inability to raise the minor. The minor was placed with S.G.
In December 2011, mother filed a petition for modification of the disposition order, seeking return of the minor or an order for reunification services. She alleged, as changed circumstances, her continued participation in substance abuse treatment and counseling and her ongoing sobriety. Mother further alleged that the proposed modification was in the minor's best interests because she wanted to stay sober and be a safe parent to the minor. Additionally, mother alleged that, having overcome her long drug history, she would be able to provide a supportive home and be a good example to the minor, she had a support structure, the minor recognized her and enjoyed being with her, and she should have a chance to parent her child.
Several supporting reports and letters from service providers were attached to the modification petition, including a letter from the director of Strategies for Change (SFC), the drug treatment program where mother had voluntarily enrolled after completing the Proposition 36 treatment program. The SFC director said that mother was chosen to speak at the SFC annual meeting because "she best exemplified commitment to recovery, rehabilitation, and redemption."
The January 30, 2012 assessment report for the section 366.26 hearing stated that visits were now two times a month and were supervised by S.G. The visits went well. S.G. had no criminal history or child abuse referrals and was referred for an adoption home study. The minor had a medical examination and was found to be in good health. And the minor was also meeting normal developmental milestones. The report stated the minor was generally adoptable because of her age and lack of health or development issues.
At the combined contested section 388 and section 366.26 hearing in February 2012, mother testified and called several witnesses in support of the petition for modification.
Mother's therapist for short-term counseling on coping skills testified that mother began the counseling sessions in September 2011 and completed them at the end of December 2011. The therapist stated mother was active in therapy sessions, developed positive coping skills, and internalized the concepts presented. She took responsibility for her behavior in a way the therapist rarely saw in clients. Mother had remorse for the distress she had caused her family, especially her mother and her older daughter, who had been adopted by her mother.
Mother's sponsor, a recovering alcoholic, testified she met mother in jail in 2005 and mother contacted her after being released from state prison. The sponsor said mother was now a different person, no longer selfish and self-centered, and was on the right track to recovery. However, according to the sponsor, while mother had a "really strong foundation in her recovery" after a year being clean and sober, she still had "a lot of work to do."
Mother's counselor at SFC testified mother had come to the program under Proposition 36 and when that was over, mother voluntarily elected to continue in the co-occurring group. The counselor described mother's current co-occurring disorders program and said mother was doing well managing her mental health symptoms. The counselor viewed mother as credible and forthcoming. Mother's current goals were to maintain sobriety, manage her mental health issues, and to get a high school diploma and secure employment.
The director of SFC testified both as an expert and as to his direct observations of mother. He testified that he rarely writes letters on behalf of SFC's clients, but mother earned it. He had seen a positive progression with mother in the program and believed she was sincere in her commitment to change her life. It is rare to see a person with mother's challenges progress as she has. He said mother became a "model of . . . recovery" and "truly the epitome" of "recovery above and beyond." He testified that if a person can remain clean and sober in the "real world" outside a residential treatment facility for 13 to 14 months, it was a good indication that person is on their way to recovery if he or she continues doing what needs to be done to stay clean and sober. However, he further testified that "[t]he two strongest predictors of [the] outcome of recovery per the science are going back to school and finding meaningful work. When you track people who have been successful at stopping -- at not using drugs or alcohol over five, six, seven, eight, nineteen years[,] the variables that load the strongest are they either went back to school as part of their recovery or they found meaningful work. And those variables load stronger than meeting attendance, church, sponsor, even type of treatment. So that's just what the science says."
Mother's former parole officer testified mother was currently compliant with her parole conditions, which included mandatory testing, drug treatment upon relapse and attending the parole outpatient clinic to address her mental health issues. The parole officer stated that she rarely testifies on behalf of parolees because she rarely has anything positive to say, but mother was different. She testified that mother "has made some very positive changes in her life. She has done what we have asked her to do. And I think she has really, really made a turnaround in her life and deserves a chance to be able to raise that child."
Mother testified about the changes she had made in her life to maintain sobriety for 14 months. She indicated she had learned new skills and now chose not to take drugs anymore, instead employing coping skills she learned in her programs. She had recently renewed her driver's license. She was currently participating in programs three to four days a week, wanted to finish the work to get a high school diploma and to continue in self-help groups when she could no longer participate in the SFC program. She was seeing a doctor once a month for anxiety and taking Zoloft. She also takes Trazodone as needed when she has trouble sleeping.
Mother testified she had had positive visits with the minor. She described a visit that took place at the zoo. The minor's face lit up when she saw mother. The minor refers to her as "mommy" and refers to father, who also attends the visits, as "daddy." At the conclusion of visits, the minor hugs and kisses them.
Mother was grateful that S.G. had been taking care of the minor. She acknowledged that S.G. had done a lot for the minor. She also acknowledged that there is a bond between the minor and S.G. and that they love each other.
Mother had only recently been made aware the minor was being monitored by the Easter Seals Society and that the minor had been seen by a neurologist who wanted to schedule further tests.
Mother understood that the father's developmental delays put the minor at risk, because he might not respond in an emergency, but testified as follows about leaving minor in a non-emergency setting with father:
COUNSEL FOR MOTHER: "[D]o you see that -- if [the minor] was left alone with [father] that even in a non-emergency setting that there may be issues that are concerning [the minor's] safety?"
COUNSEL FOR MOTHER: "And what would those be? [sic]"
MOTHER: "I don't know. I rather -- I don't know. I [sic] rather her not be left alone with him because he's a man. I'm her mom. He's her dad, but just certain things that -- I don't know how to answer that."
Mother testified she wanted to stay clean so the minor would have someone to be proud of. When asked why she thought it would be in the minor's best interests to return the minor to her, mother said, "Because I'm her mother. I've gotten my life together now. I feel I can take good care of her. She deserves to be with her mother and father. . . . I feel that as long as I'm doing what I'm supposed to be doing, I deserve the right to be able to parent my child."
The adoptions social worker testified the minor and S.G. have a parent/child relationship and she saw no reason why S.G., who had completed all interviews and training, would not pass the adoption home study.
The social worker testified that she had been unaware of the minor's seizures at the time she wrote her report for the hearing.*fn2 After she wrote her adoption report, during a home visit, S.G. told the social worker the minor was lacking feeling in her fingers, had a history of seizures as an infant, and S.G. was taking the minor for further testing. Despite this medical issue, the social worker opined that the minor was still generally adoptable as well as specifically adoptable by S.G.
The court denied the mother's petition for modification. It found circumstances were changing, not changed, and that the proposed order was not in the minor's best interests. The court found that the beneficial parental relationship exception did not apply, the minor was likely to be adopted, and terminated parental rights.
Mother asserts that the juvenile court erred in denying her petition for modification because she demonstrated both changed circumstances and that the proposed order was in the minor's best interests.
A. Applicable Law and Standard of Review
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 must show (1) there has been a change of circumstance and (2) the proposed modification is in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.) The parent has the burden of proving both of these requirements by a preponderance of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) However, the best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (Stephanie M., supra, 7 Cal.4th at p. 317.) The same can be said when, as here, reunification services have been bypassed. 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. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
A modification 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.) A court abuses its discretion when its decision exceeds the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (Ibid., italics added.) The abuse of discretion standard is "a deferential standard of review that requires us to uphold the trial court's determination, even if we disagree with it, so long as it is reasonable." (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864, italics added.)
1. Changed circumstances
The court commended mother, noting that she had "applied herself rigorously" in dealing with her addiction, but found that her circumstances were changing, not changed. Mother contends that she is a different person than she was before.
Because of the nature of recovery from addiction, an addict's circumstances early in recovery are constantly changing. In such a situation, the question becomes whether the circumstances have changed enough so that the minor would be secure, stable and safe in the parents' care. Here, there are indications of significant and commendable change in some areas, including mother's extended period of sobriety and increased understanding of her addiction issues, as well as the testimony of individuals who have observed her change and growth. However, mother's understanding of father's limitations and the resulting impact on the minor's care have not significantly changed, and the evidence from the expert, the sponsor and even mother made it clear that she has more work to do.
Mother contends the juvenile court erroneously based its decision on its finding that mother had not obtained a GED or a job. She argues that the protective issue here was substance abuse, not whether mother had a high school diploma or a job. Mother misses the point of the court's observation. Mother's own expert testified that the two strongest predictors of recovery are going back to school and meaningful work.
In explaining its reasoning, the court said, "Dr. Davis when he testified said the best predictors of successful rehabilitation are employment and education and that's -- of course you have to get there, but as the mother testified she's not there yet. She's not employed. She has not begun to seek employment. She wants to but that hasn't started. She wants to go back and get a GED, but that hasn't started yet." We read the court's comment as a recognition that the two strongest predictors of recovery are not present here, as mother had not gone back to school or obtained employment. The court did not err by factoring this evidence into its exercise of discretion.
2. Best interests
Mother's circumstances are fluid and she has made significant progress but, even assuming she has progressed far enough along the spectrum of change to have reached a point of "changed" rather than "changing" circumstances, the evidence does not demonstrate that the trial court abused its discretion in determining the proposed modification would not be in the minor's best interests.
Mother contends the factors identified in Kimberly F. for evaluating a minor's best interests support granting a modification here. These factors, which the juvenile court expressly considered, include: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Kimberly F., supra, 56 Cal.App.4th at p. 532, italics omitted.) We acknowledge the usefulness of these factors, but also acknowledge that different weight may be accorded to each, depending on the circumstances of the case.
Since reunification was bypassed in this case, the minor's best interests have always centered on permanence and stability. Thus, the second Kimberly F. factor is most important here. The juvenile court compared the minor's relationship with S.G. to minor's relationship with the parents and found no comparison, and with good reason. The minor has spent most of her life in the care of S.G. The minor has developed a parent/child relationship with S.G., who wishes to adopt the minor and to provide the maximum stability available in the permanent plan choices available to the court. The evidence does not support a finding that the minor could be returned to the custody of a parent who has never progressed to unsupervised visits, never dealt with the challenges of a young child with medical issues, and does not have a grasp of what those challenges could mean to her own stability in recovery. Further, the evidence does not justify delaying permanence and stability to the minor to permit offering reunification services. The notions that mother deserves the opportunity to parent and the minor deserves to be with her parents do not rise to the level of facts which support a finding that the proposed modification is in the minor's best interests of permanence and stability.
Mother points out that the minor calls her and father "mommy" and "daddy." However, the court determined that if that were the case, it was only because S.G. told the minor to call them that. The court further determined that mother had not parented the minor. These findings are supported by the evidence.
Citing In re James R. (2009) 176 Cal.App.4th 129, 136, mother contends that the trial court erroneously relied on a concern that the minor would grow up in a home where she could not be left alone with her father. Mother ignores what the court actually said and as a result, again misses the point of the court's observation. As we noted, when asked why she would not leave the minor with father, mother testified, "because he's a man. I'm her mom. He's her dad, but just certain things that -- I don't know how to answer that." In commenting on this testimony, the court said, "Of course that's not the reason. The reason has to be due to his -- with being able to trust that he's going to exercise good judgment with the child . . . . Given that he and the mother have a committed relationship it's just hard for the Court to believe that he would never be left alone with the child." We read the court's comments as an indication it did not believe mother when she said she would not leave the minor alone with father.
The juvenile court did not abuse its discretion in denying the petition for modification.
Mother contends there was not substantial evidence the minor was likely to be adopted in a reasonable time due to the recent medical issues which might mean the minor was not generally adoptable.*fn4
A. Applicable Law and Standard of Review
"If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . ." (§ 366.26, subd. (c)(1).) Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child, such as the child's age and physical and emotional heath. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) The existence and/or suitability of the prospective adoptive family, if any, are not relevant to this issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844 (Scott M.).) "There must be convincing evidence of the likelihood that the adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 625.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Inquiry at a section 366.26 hearing into the existence of legal impediments to adoption by prospective adoptive parents is relevant when the characteristics of the child make it difficult to find a family willing to adopt the child except the prospective adoptive parents. (Sarah M., supra, 22 Cal.App.4th at p. 1650; Fam. Code, § 8600 et seq.) "General suitability to adopt . . . does not constitute a legal impediment to adoption." (Scott M., supra, 13 Cal.App.4th at p. 844.)
On review, we determine whether there is substantial evidence from which the juvenile court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re I.I. (2008) 168 Cal.App.4th 857, 869.) We must give the juvenile court's determination the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment. (Ibid.) " '[T]he usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong.' " (In re I.W. (2009) 180 Cal.App.4th 1517, 1526.)
The minor here is young, generally healthy and has no developmental issues. The record from the outset of the case contains ample information about the minor's seizures and other health issues as well as the fact that she was being monitored by the Easter Seals Society for developmental issues. The lack of feeling in her fingers was a very recent occurrence which was communicated to the social worker after the assessment report was written. S.G. addressed this medical issue by having the minor seen by a neurologist and was following up with additional tests. There is no evidence that, whatever the cause of the lack of feeling, the recent issue had a negative impact on whether the minor was likely to be adopted in a reasonable time. The adoptions social worker opined it did not, and that in any case, the minor was specifically adoptable by S.G. Even assuming the minor was only specifically adoptable, nothing in the record suggests there is a legal impediment to adoption.
Mother relies on In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.) to support the argument that there was insufficient evidence to support the juvenile court's finding that the minor was likely to be adopted in a reasonable time. We conclude Valerie W. is inapposite.
In Valerie W., the agency's assessment reported that the minor had had a seizure a year prior to the report and tests at that time showed no abnormality, although the emergency room doctor had recommended a neurological examination to rule out a seizure disorder. (Valerie W., supra, 162 Cal.App.4th at pp. 5-6.) Further, the minor was so small for his age he had recently fallen below pediatric growth charts and additional testing might be necessary if his growth continued to lag. (Ibid.) The minor also had delayed speech development, which might be due to his very small lower jaw and overbite. (Id. at p. 6.) He also had anemia, asthma and gastrointestinal problems, and the public health nurse had suggested genetic testing. (Ibid.) He had recently had an electroencephalogram, the genetics testing had been scheduled and he needed additional testing to pinpoint the cause of his anemia. (Ibid.) Later addendum reports shed no light on the results or status of any testing or diagnoses. (Ibid.)
In contrast, here the minor's only current medical issue was the loss of feeling in the minor's fingers, which condition arose after the assessment was filed. That new condition was addressed both in mother's testimony and the social worker's testimony. The existence of the prior medical conditions of seizures and possible cerebral palsy were well known, being monitored, and there were no pending testing or evaluations, since they apparently presented no current issues.
Moreover, the analysis of the Valerie W. court focused on the inadequacies of the assessment and addenda. (Valerie W., supra, 162 Cal.App.4th at pp. 7-8.) The court found the reports did not provide sufficient information on the minor's needs and the willingness or ability of either or both of the potential caretakers to meet his needs. Information was also lacking about one of the potential caretakers and the legality of an adoption by more than one person other than a married couple or domestic partners, since the agency contemplated adoption by both a mother and the mother's daughter. (Id. at pp. 13-16.) The Valerie W. court concluded the deficiencies in the assessment reports were so great that they undermined the juvenile court's findings and, for that reason, substantial evidence did not support the finding the minor was likely to be adopted in a reasonable time. (Id. at pp. 15-16.) The court did not address the question of whether the minor was adoptable. Rather, it held only that the reports in that case did not provide enough information to make the determination.
Here, mother has expressly stated that she is not attacking the adoption assessment, recognizing that such a challenge has been forfeited. Instead, she argues there was no adoption assessment which contained the medical information. While there was no written assessment, since the medical condition in question arose shortly before the section 366.26 hearing, there was testimony on the subject. Mother did not object to this procedure nor did she seek a continuance, again forfeiting any challenge on appeal to the procedure. (Christopher B., supra, 43 Cal.App.4th at p. 558; Dakota S., supra, 85 Cal.App.4th at pp. 501-502.) This case is distinct from Valerie W. both because deficiencies in the assessment were remedied by further information provided at trial and because the issue here is whether the evidence adduced in written reports and testimony was sufficient for the court to make the finding that the minor was likely to be adopted in a reasonable time, not whether the reports were so deficient as to undermine the juvenile court's conclusion.
Substantial evidence supports the juvenile court's finding that the minor is likely to be adopted.
The orders of the juvenile court are affirmed.
We concur: BUTZ , Acting P. J. DUARTE , J.