In re Edgar F. CA2/6 ( 2014 )

Filed 6/23/14 In re Edgar F. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re EDGAR F., JAMIE F., and 2d Juv. No. B253277
ELIZABETH F., Persons Coming Under (Super. Ct. No. J063046)
the Juvenile Court Law. (Super. Ct. No. J069391)
(Super. Ct. No. J069392)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Petitioner and Respondent,
v.
DONNA S.,
Respondent and Appellant.
Donna S. (mother) appeals the denial of her petition to reinstate family
services (Welf. & Inst. Code, § 388)1 and appeals from a December 10, 2013 order
terminating parental rights and freeing her children Edgar F., Jamie F., and Elizabeth
F. for adoption. (§ 366.26.) We affirm.
1
All statutory references are to the Welfare & Institutions Code.
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Facts & Procedural History
On May 19, 2013, Ventura County Human Services Agency (HSA)
detained Edgar F. (age 10), Jamie F. (age 8), and Elizabeth F. (age 3) after drug
paraphernalia and a bullet were found in the motel room where the children and
mother were living. Mother was arrested for child abuse, being under the influence of
a controlled substance, and possession of narcotics paraphernalia. HSA filed a petition
for failure to protect (§ 300, subd. (b)) and no provision for support (§ 300, subd. (g)).
It was alleged that the whereabouts of the children's father was unknown and that the
father had a lengthy criminal history with arrests for murder, robbery, substance abuse,
car theft, possession of a firearm, vandalism, and battery on a police officer.
The detention report stated that mother had an extensive history of
substance abuse and that a prior dependency action was filed in 2002 after the oldest
child, Edgar, tested positive for marijuana at birth. Mother was offered family
maintenance services but continued to abuse methamphetamine and marijuana. In
2005, mother was arrested for drug use, completed a drug court program, and resumed
using methamphetamine after moving to Tijuana, Mexico with the father and children.
There were several child abuse referrals based on mother's substance abuse and reports
that mother and father were fighting and using drugs. Edgar told the case worker that
his parents were mean when they smoked drugs and would hit the children.
At the May 21, 2013 jurisdiction/disposition hearing, the trial court
bypassed reunification services based on mother's chronic drug abuse and
uncontroverted evidence that mother resisted two prior court ordered treatments for
substance abuse. (§361.5, subd. (b)(13).) The matter was set for a permanent
placement hearing. (§ 366.26.)
Before the section 366.26 hearing, HSA reported that the children were
living with the maternal aunt and bonded to the aunt who wanted to adopt. Mother
filed a section 388 petition to reinstate services which was denied for failure to make a
prima facie showing of change of circumstances. At the contested section 366.26
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hearing, the trial court found that the children were adoptable and that mother had not
met her burden of establishing the beneficial parent-child relationship exception.
(§ 366.26, subd. (c)(1)(B)(i).)
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Section 388 Petition
Mother asserts that the trial court erred in denying her petition for
reunification services. The grant or denial of a section 388 petition is committed to the
sound discretion of the trial court and will not be disturbed on appeal unless abuse of
discretion is clearly established. (In re Shirley K. ( 2006) 140 Cal. App. 4th 65, 71.)
"After the termination of reunification services, the parents' interest in the care,
custody and companionship of the child are no longer paramount. Rather, at this
point, 'the focus shifts to the needs of the child for permanency and stability' . . . .
[Citation.]" (In re Stephanie M. (1994) 7 Cal. 4th 295, 317.) To prevail on a section
388 petition, the parent must establish that new or changed circumstances exist and
that the proposed order would promote the best interests of the child. (In re Marcelo
B. (2012) 209 Cal. App. 4th 635, 641-642 (In re S. J. (2008) 167 Cal. App. 4th 953, 959.)
"Unless the moving party makes a prima facie showing of both elements, the petition
may be denied without an evidentiary hearing. [Citation.]" (In re Marcela B., supra
209 Cal.App.4th at p. 642.)
The section 388 petition alleges that mother was participating in the
Lighthouse Life Recovery Program which included random drug testing and a 12-step
recovery program. Mother, however, was enrolled in the program before services
were bypassed. There is no evidence that mother completed the program or that
anything has changed. (See e.g., In re H.S. (2010) 188 Cal. App. 4th 103, 109.)
Mother has a history of drug relapses, is in the early stages of recovery, and is still
addressing her substance abuse problem. (See In re Kimberly F. (1997) 56 Cal. App.
4th 519, 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much
longer period than 120 days to show real reform."]; In re Clifton B. (2000) 81
Cal. App. 4th 415, 423 ["relapses are all too common for a recovering drug user"].) The
section 388 petition offers "a bare scintilla of proof that [mother] was beginning to
rehabilitate. But '[c]hildhood does not wait for the parent to become adequate.' [
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Citation.]" (In re Baby Boy L. (1994) 24 Cal. App. 4th 596, 610.) The trial court did not
abuse its discretion in denying the section 388 petition.
Beneficial Parent-Child Relationship
Mother argues that the trial court erred in terminating parental rights
because the children will benefit from continuing the parent-child relationship. (§
366.26, subd. (c)(1)(B)(i).) A parent seeking to overcome the statutory preference for
adoption "must show that severing the natural parent-child relationship would deprive
the child of a substantial, positive emotional attachment such that the child would be
greatly harmed. [Citations.] A biological parent who has failed to reunify with an
adoptable child may not derail an adoption merely by showing the child would derive
some benefit from continuing a relationship maintained during periods of visitation
with the parent. [Citation.]" (In re Angel B. (2002) 97 Cal. App. 4th 454, 466.)
Mother has not advanced beyond supervised visits and makes no
showing that her relationship with the children is so significant and positive that the
children will be greatly harmed by its termination. (In re Autumn H. (1994) 27
Cal. App. 4th 567, 575.) Mother regularly visited the children but Edgar and Jamie
were easily drawn to other activities. Following the visits, the boys were irritable,
engaged in angry outbursts and tantrums, and expressed anger toward mother. The
case worker reported that the children view their aunt as a "2nd mother" and are
thriving in her care. Edgar said "I want to be adopted by my aunt. . . . [My]
relationship with my aunt is more like a mom as she has taken care of me as a baby."
Jamie also wants to be adopted.
Elizabeth is too young to voice an adoption preference but looks to aunt
for comfort and support. After Elizabeth was placed with her brothers, the children
supported each other and formed a strong relationship with their aunt. Although
mother maintained regular contact and visitation, a parent must show more than "an
emotional bond with the child, or pleasant visits. [Citation.]" (In re Dakota H. (2005)
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132 Cal. App. 4th 212, 229.) The evidence clearly shows that Elizabeth and her
brothers need a safe and nurturing home that only adoption can provide.
Mother argues that a trial court may not terminate parental rights based
on the adoptive parent's willingness to allow visitation. (See e.g., In re C.B. (2010)
190 Cal. App. 4th 102, 128.) Visitation was briefly mentioned by trial counsel but the
arguments of counsel are not evidence. The trial court made no express or implied
finding that aunt's amenability to visitation was a factor in terminating parental rights.
What it did find is that mother's current attempt to become drug-free "is too little
too late . . . [¶] . . . [S]ome detriment does exist but does not outweigh the need for
adoption . . . ."
Mother argues that she maintained long periods of sobriety, formed
strong bonds with the children, and "mindfully" parented the children. When
Elizabeth was detained, she had scabies and rotten teeth. The tooth decay was so
severe that four front teeth had to be extracted. Edgar and Jamie suffered from temper
outbursts and aggressive behavior that included kicking, throwing things, lying,
destroying property, and running out of the home. The boys complained about
mother's substance abuse, the domestic violence, and mother's friends. After two
unsuccessful placements, the children were placed with the maternal aunt and bonded
with the aunt. With therapy and aunt's loving care and support, the behavioral
problems have almost disappeared.
The trial court reasonably concluded that mother's relationship with the
children does not outweigh the permanency and stability of an adoptive placement that
the children so badly need. (In re Angel B., supra, 97 Cal.App.4th at p. 468.) Because
a parent's claim to an exemption must be evaluated in light of the Legislature's
preference for adoption, it is only in exceptional circumstances that a court will chose
a permanent plan other than adoption. (In re Scott B. (2010) 188 Cal. App. 4th 452,
469.) "The reality is that childhood is brief; it does "wait while a parent rehabilitates
himself or herself. The nurturing required must be given by someone, at the time the
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child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189
Cal. App. 3d 1032, 1038.)
The judgment (order denying section 388 petition and order terminating
parental rights) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Michelle Anne Cella, under appointment by the Court of Appeal, for
Appellant.
Leroy Smith, County Counsel, County of Ventura, Cynthia Krause,
Assistant County Counsel, for Respondent.
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