Filed 8/27/15 In re A.P. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.P., A Person Coming Under the Juvenile Court Law

. 2d Juv. No. B260161 (Super. Ct. No. J1395901 ) ( Santa Barbara County)

SANTA BARBARA COUNTY CHILD WELFARE SERVICES,
Plaintiff and Respondent,

v.

A MANDA P. , Defendant and Appellant.

Amanda P. (mother) appeal s the juvenile court ' s or der s denying her petition to reinstate family reunification services ( Welf . & Inst . C ode , § 3 88 ) , 1 terminating parental rights to her son, A.P., and selecting adoption as the permanent plan. ( § 366.26 .)
Mother contends (1) the court abused its discretion by denying her section 388 petition
and (2) the beneficial parent

- child relationship exception precludes the child ' s adoption. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.

1 All undesignated statutory references are to the Welfare and Institutions Code.2 FACTS AND PROCEDURAL BACKGROUND In April 2012, police discovered mother and A

. P

. , who was then 16 months old, in a " makeshift " tarp

- covered dwelling. Mother was under the influence of methamphetamine and in possession of drug paraphernalia. A.P. was sleeping in a stroller and wearing only a diaper. Police arrested mother, who had a criminal history of
substance abuse and three prior referrals to Santa Barbara County Child Welfare Services (CWS) for drug use and general neglect

. CWS filed a juvenile dependen cy petition to protect A.P. (§ 300, subds. (b), (g).) The juvenile court sustained the petition and ordered CWS to provide family reunification services.

Between April and December 2012, mother completed inpatient substance abuse treatment, established a permanent residence, quit smoking, completed a parenting
class and made significant improvement in therapy. At the 12

- month review hearing, the juvenile court found mother had made excellent progress and placed A.P. in her care with family maintenance services. She had tested negative for drug use and was participating
in 1 2

- step and " safe care " programs, renting a room from friends and seeing a psychiatrist to treat her bipolar disorder. In November 2013, the court returned A.P. to her custody and terminated dependency jurisdiction.

Five months later, CWS visited the fa mily home after receiving three referrals alleging mother had relapsed into methamphetamine use. Mother was nervous, appeared to be under the influence and acknowledged her relapse. Mother said she was using methamphetamine with her boyfriend , who was pr esent. CWS called the police,
who arrested mother , and filed a new dependency petition on A. P

. ' s behalf. The juvenile court sustained the petition, bypassed family reunification services under section 361.5, subdivision (b)(13) and set a permanency heari ng. A. P . was placed with foster parents who wish to adopt him.

In the meantime, Mother pled no contest to a misdemeanor " under the
influence " charge

. ( Health & Saf. Code, § 11550, subd. (a) .) The criminal court ordered her to undergo a six

- month Prop osition 36 (Prop

. 36) outpatient substance abuse treatment program and to participate in Narcotics Anonymous (NA) . Mother told her3

boyfriend, whom she had met in a substance abuse treatment program, to leave her home.
Mother was " very determined to, as s he puts it[, to ] ' get it ' this time. "

In September 2014, mother petitioned under section 388 for reinstatement of family reunification services. T he juvenile court held combined, contested modification and permanency hearings the following month . Kath leen Tuttle, a drug treatment counselor, testified that mother ' s last positive drug test was upon intake into the Prop

. 36 treatment program in May 2014. By August
, mother had graduated from the program and was attending a 12

- step program. Mother also co ntinued in the Prop

. 36 program because she wanted the additional support. Tuttle stated that mother " has taken this on as something that is a part of her, that recovery is a part of her. "

Mother ' s therapist reported that mother was a consistent and wi lling participant in individual counseling sessions. Mother completed a 10

- week parenting program and took responsibility for her own actions, promising to " make the right choices to use my skills I ' ve learned since I began recovery, " including attending to her own mental health and taking medications as prescribed. Mother also acknowledged it
was not the " best decision " to live with a man who also was in recovery.

According to social workers, A .P. generally was " happy and comfortable "
in mother ' s care , but she was not always adept at discipline or setting boundaries. A.P. ' s therapist reported he " has symptoms of ruptured attachment, PTSD and trauma, " and also suffers from anxiety and eating issues. In denying the section 388 petition, the court
found that mother proved neither changed circumstances nor that reinstatement of
services would be in A.P. ' s best interest s

. It also found " [h]er actions have not been completely parental " and that her relationship with A.P. does not " outweigh[] the . . . long

- term benefit to [A.P.] of permanency that would come with adoption. " The court terminated parental ri ghts and identified adoption as the permanent plan. Mother appeals.
DISCUSSION
Section 388 Petition
Mother contends the juvenile court abused its d iscretion by denying her petition for reunification services. The grant or denial of a section 388 petition is4

committed to the sound discretion of the trial court and will not be disturbed unless abuse of discretion is clearly established. ( In re Shirle y 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 f or permanency and stability ' . . . . [Citation.] " ( In re Stephanie M. (1994) 7 Cal.4th 295, 317 ( Stephanie M. ) .) To prevail on a section 388 petition, the parent must establish that new or changed circumstances exist and that the proposed order would pr omote the best interests of the child. ( In re Marcelo B. (201 2) 209 Cal.App.4th 635, 641

- 642; In re S. J. (2008) 167 Cal.App.4th 953, 959.)

After reunification services were denied in May 2014, mother completed the Prop

. 36 drug treatment program, reg ularly attended NA meetings and re

- engaged in mental health and parenting services. The juven ile court complimented mother on her six months of sobriety, but noted she had twice that when A.P. was returned the first time. In
the court ' s view, " with a lon g

- time use, it ' s got to be a longer time to demonstrate there ' s a thorough and full commitment to sober lifestyle. Not tha t I discount the counsel[or ' s] belief that there is a renewal on her part or

-- I ' d consider that, but I don ' t think it ' s enough. "
A reasonable inference from the evidence is that circumstances ha d not changed. Mother has a history of drug relapses, is i n 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 ( Kimberly F. ) [ " It is the nature of addiction that one must be

' clean ' for a much longer period th an 120 days to show real reform " ]; In re Cli f fton B. (2000) 81 Cal.App.4th 415, 423 [ " relapses are all too common for a recovering drug

user " ] .) While m other offered proof that she again was starting to rehabilitate,

"' [c]hildhood does not wait for the parent to become adequate. ' [ Citation.] " ( In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

Furthermore, mother failed to show that allow ing reunification services
would be in A.P. ' s best interests. Three factors guide the juvenile court ' s discretion in considering a section 388 petition: (1) the seriousness of the problem that led to the5

dependency; (2) the relative strength of the relat ionships between the child and the parent and the child and the caretaker; and (3) the degree to which the underlying problem has
been ameliorated. 2 ( Kimberly F., supra , 56 Cal.App.4th at pp. 531

- 532.)

Here, the underlying problem is mother ' s drug add iction. As a result of that addiction, A

. P

. has spent more than a t hird of his life with his foster parents . They cared for him during his first dependency, regularly visited him while he was placed with
mother and now m eet his every basic and special ne ed , providing him with the only

st ability he ha s ever known. The foster parents consider A.P. family and are committed to adopting him. At one point, A.P. became upset when one of his foster s iblings implied
that the ir home was not his own. While mother ' s supervised visits with A.P. generally

were positive, she failed to consistently set boundaries and discipline him d uring visits. A.P. also experienced high anxiety after the visits, acting wildly and once ripping apart
his t

- shirt with his teeth.

Mo ther failed to show that she could alleviate her long

- standing substance abuse problem such that she could be a stable parent to A.P. in the long

- term. Nor did
she show that reunification services would not undermine A.P. ' s bond with his foster parents an d his stability. (See In re D.R. (2011) 193 Cal.App.4th 1494, 1512 [ " the disruption of an existing psychological bond between dependent children and their
caretakers is an extremely important factor be aring on any section 388 motion " ].) After being remov ed twice from mother ' s custody , A.P. displayed s ymptoms of ruptured attachment disorder and post traumatic stress disorder. He showed no appropriate fear around strangers and even " wrap [ ped ] himself around " them. He suffered from eating issues, impulsivi ty and had bec o me increasing ly aggressive in play. One social worker opined, " [A.P.] cannot endure another removal without further damage to his ability to

2 As CWS points out, some courts have declined to apply the Kimberl y F. factors on the basis that they do not sufficiently take in to account the Supreme Court ' s statement in Stephanie M., supra , 7 Cal.4th at page 317, that after termination of reunification services the focus must be on the child ' s need for permanency and stability. ( E.g., In re J.C. (2014) 226 Cal.App.4th 503, 527

. ) We need not address the ext ent to which the Kimberl y F. factors are appropriate in light of Stephanie M. , as we conclude that even applying those factors, the juvenile court did not abuse its discretion in denying the section 388 pet ition

.6

bond, and further damage to his mental health. " Under these circumstances, " the [child ' s]
interest in stability was the court ' s foremost concern, outweighing any interest mother may have in reunification. " ( In re Anthony W. (2001) 87 Cal.App.4th 246, 251

- 252.)
The court did not abuse its discretion by denying the section 388 petition.

Beneficial Pa rent

- Child Relationship Exception to Adoption Mother contends the juvenile court erred in terminating parental rights and choosing adoption as the permanent plan because A.P. 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 har med. [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 paren t. [Citation.] " ( In re Angel B. (2002) 97 Cal.App.4th 454, 466.) As mother concedes, our standard of review is the substantial evidence test. ( In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts favorably to the prevailing party, and drawing all legitimate inferences to uphold the
lower court ' s ruli ng. ( In re Brison C. ( 2000) 81 Cal.App.4th 1373, 1378

- 1379.)

CWS did not dispute that mother maintained regular contact with A.P. To establish a beneficial parent

- child relationship, however, mother also needed to show that
A.P would benefit from contin uing that relationship. Mother ' s visitation with A.P. showed they had pleasant visits and affectionate contact. But even frequent and loving contact between parent and child is not sufficient to establish the requisite benefit to the
child if the mother does not occupy a parental role and is unable to take custody. ( In re
Teneka W. (1995) 37 Cal.App.4th 721, 728.) A " pleasant " relationship is not enough to
establish a benefit to the child because " it bears no resemblance to the sort of consistent,7

dail y nurturing that marks a parental relationship. " ( In re Derek W

. (1999) 73
C al.App.4th 823, 827 ; see In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 ; In re Autumn H., supra , 27 Cal.App.4th at p. 575.)

A.P. was three years old at the time of the perma nency hearing and had spent over a third of his life outside of mother ' s custody. At times, he acted indifferently
towards mother on the telephone, choosing to speak with her for only a few minutes. At other times, he refused to speak with her at all. A .P. experienced high anxiety, acted wildly and struggled with rules and boundaries after in

- person visits with her. He sometimes called mother by her first name. A.P. also struggled with eating issues, obsessing about food and eating until he gagged. He stated, " I was hungry at Amanda ' s house and I'm not hungry [in the foster parents ' ho use ]. " H is therapist reported that he
was anxious about his long

- term placement and needed a safe and stable environment. In

sum, substantial evidence supports the tria l court ' s finding that allowing adoption would not deprive A.P. of " a substantial , positive emotional attachment such that [he] would be greatly harmed. [Citations.] " ( In re Angel B. , supra, 97 Cal.App.4th at p. 466.)

" Interaction between natural pare nt and child will always confer some
incidental benefit to the child. " ( In re Autumn H., supra , 27 Cal.App.4th at p. 575.) Mother was unable to show, however, that she can safely parent A.P. , having previously exposed him to substance abuse and neglect. Simply put, the relationship between
mother and A.P. d id not " outweigh the well

- being [ A.P. ] would gain in a permanent
h ome with new, adoptive parents. " ( Ibid. ) " The reality is that childhood is brief; it does not wait while a parent rehabilitates himsel f or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it. " ( In re Debra M. (1987) 189 Cal.App.3d 1032, 1038 , superseded by statute on another ground as stated in In re Eli F. ( 1989) 212 Cal.App.3d 228, 234 .)
DIS POSITION
The orders denying mother ' s section 388 petition
, terminating her parental8

rights and selecting adoption as the permanent plan are affirmed.

NOT TO BE PUBLISHED

.

PERREN, J.

We concur:

GILBERT, P

. J.

YEGAN, J.9 Arthur A. Garcia , Judge
Superior Court County of Santa Barbara

______________________________ Christopher R. Booth, under appointment by th e Court of Appeal, for Appellant. Michael C. Ghizzoni, County Counsel, Bo L. Bae, Deputy County Counsel, for Respondent.