Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of San Diego County No. EJ002530, Gary M. Bubis, Judge.
HALLER, J.
Paul B. appeals a judgment terminating parental rights to his daughter, Anna B., under Welfare and Institutions Code section 366.26. He also appeals an order summarily denying his petition for modification under section 388. We affirm the judgment and order.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Paul B. and A.W. are the parents of Anna B., born December 2004. On January 31, 2005, the San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b). The petition alleged Anna was at substantial risk of serious physical harm or illness from violent confrontations between her parents, and A.W.'s inability to provide regular care to Anna because of mental illness. A.W. had a history of being physically and verbally aggressive with Paul and other family members. Paul told the social worker he was committed to staying with A.W.
A.W. does not appeal.
Paul and A.W. submitted to jurisdiction and consented to Anna's placement with her maternal great-aunt Paula W. (Aunt Paula). Anna's maternal grandfather and his three children also lived with Aunt Paula. The Agency implemented a case plan that focused on stabilizing A.W.'s mental health, addressing the parents' domestic violence issues and improving their parenting skills. Although A.W. was considered the aggressor in the relationship, Paul voluntarily participated in 28 domestic violence sessions. Paul and A.W. visited Anna regularly. In August 2006 at the 18-month review hearing, the court returned Anna to parental custody under a plan of family maintenance services.
In December 2006 minor's counsel filed a section 388 petition (minor's petition) seeking modification of the order placing Anna with her parents. Minor's counsel alleged the parents quarreled in Anna's presence, threw things at each other and pushed and shoved each other, and Anna was acting out. Although living with her parents, Anna often stayed with Aunt Paula during this time period. The court set the matter for hearing.
The Agency supported minor's petition for Anna's removal from parental custody. The social worker believed the parents were unable to mitigate the physical and emotional risk to Anna caused by their confrontations and arguments. Two-year-old Anna was mimicking the actions and behaviors of her parent. She was aggressive, clingy and upset. Anna resisted visiting her parents. She returned from one visit with her parents and immediately kicked her cousin in the head. The social worker recommended the court place Anna with Aunt Paula to protect her from emotional abuse.
Before the hearing on the section 388 petition was held, the police were called to intervene in a domestic dispute between Paul and A.W. Neither parent pressed charges. The Agency and the police advised the parents to separate. On January 26 the court detained Anna with Aunt Paula. On February 6 Paul moved out of his and A.W.'s apartment to another apartment across the street. Paul and A.W. continued to see each other on a fairly regular basis.
On March 9, 2007, Paul filed a section 388 petition seeking a modification of the order placing Anna in the custody of both parents. He sought Anna's placement in his care. Paul alleged he moved out of the residence with A.W., and Anna was bonded to him.
On April 4, 2007, after a contested hearing on minor's section 388 petition, the court found that Anna was at substantial danger of physical harm in her parents' or Paul's custody. (§ 361, subd. (c)(1).) The court removed Anna from parental custody, placed her with Aunt Paula, terminated services and set a section 366.26 hearing. It dismissed Paul's section 388 petition as moot.
In the report prepared for the section 366.26 hearing, the Agency recommended the court terminate parental rights to allow Aunt Paula to adopt Anna. It reported that Anna was a well-adjusted two year old. She was securely attached to Aunt Paula and to her grandfather. Anna was affectionate and attentive to family members while in their care. Aunt Paula was committed to Anna and had initiated an adoption home study. She planned to involve Paul (and A.W.) in Anna's life as long as the parents' interactions with Anna were appropriate.
The social worker opined that Paul was not able to demonstrate a significant parental bond with Anna. Paul did not place a high priority on spending quality time with Anna. He lacked the initiative to visit her frequently and to develop a true parental relationship.
On September 19, 2007, Paul filed a second section 388 petition seeking modification of the order terminating reunification services and setting a section 366.26 hearing. He asked the court to place Anna in his care. Paul alleged he was separated from A.W. and did not plan to reunify with her. Paul also alleged a modification of the prior order was in Anna's best interest because he maintained consistent contact with her throughout the case, and she had a bond with him.
The court reviewed the file and read and considered Paul's section 388 petition. The court noted Paul did not allege he had completed a domestic violence program and continued to attend therapy. In addition, the parents had been separated at the time of the prior hearing. The court found that Paul did not make a prima facie showing of changed circumstances and denied an evidentiary hearing on the petition.
The section 366.26 hearing was held October 31, 2007. Paul (and A.W.) submitted on the Agency's reports and did not present affirmative evidence. The court found that Anna was likely to be adopted within a reasonable time and none of the exceptions under section 366.26, subdivision (c)(1) applied. The court terminated parental rights.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Section 366.26, subdivision (c)(1) is now section 366.26, subdivision (c)(1)(B)(i). Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
DISCUSSION
I
The Court Did Not Abuse Its Discretion When It Summarily Denied Paul's Section 388 Petition
Paul contends the court erred by arbitrarily denying a hearing on the merits of his section 388 petition seeking Anna's return to his care. He asserts his section 388 petition stated a prima facie case of changed circumstances in that he and A.W. had been separated for seven months. Paul also asserts it was in Anna's best interest to maintain her relationship with him.
The Agency contends the court did not abuse its discretion when it denied an evidentiary hearing on Paul's section 388 petition. Minor's counsel joins with the Agency's arguments.
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence, and the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); Cal. Rules of Court, rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., at p. 310; In re Hashem H. (1996)45 Cal.App.4th 1791, 1798-1799.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
We review a summary denial of a hearing on a modification petition for abuse of discretion. (Zachary G., supra, 77 Cal.App.4th at p. 808.) Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
The court reasonably exercised its discretion when it determined the facts alleged in Paul's section 388 petition did not state a prima facie case of changed circumstances. At the time of the prior hearing in April 2007, Paul had moved into another apartment across the street from A.W. Therapist Meredith Ring testified the parents had a plan to live apart and coparent Anna. In Ring's opinion, the parents remained codependent even though they were separated. Paul and A.W. did not appear to be able to permanently separate, and they continued to reunite to use the other for support. The social worker reported the parents' relationship remained unstable and subjected Anna to emotional abuse and risk of physical injury.
Paul alleged that over the last seven months he had demonstrated that he could separate from A.W. He posited there was no risk Anna would be exposed to domestic violence while in his care. However, Paul did not allege that the evidence would show that he and A.W. were no longer in a codependent relationship or that he could protect Anna from A.W.'s volatility instead of becoming enmeshed in it. Likewise, as the court noted, Paul did not allege he had continued with therapy or completed a domestic program. The court did not err in concluding that Paul's section 388 petition did not make a prima facie case of changed circumstances. (In re Justice P., supra, 123 Cal.App.4th at pp. 188-189.)
Further, Paul did not show that Anna's best interests would be promoted by a modification of the prior order. (§ 388, subds. (a), (c); Cal. Rules of Court, rule 5.570(d).) Anna would be three years old in December 2007. She had been in Aunt Paula's full- or part-time care since she was two months old. Paul received 18 months of reunification services and six months of family maintenance services. Yet any contact between the parents tended to result in argument, confrontation or physical violence. Anna was adversely affected by her parents' relationship and found comfort and safety with Aunt Paula and other family members. In view of the entire record, we conclude that the facts alleged in the petition, if proved, would not allow the court to safely return Anna to Paul's care. (Zachary G., supra, 77 Cal.App.4th at p. 806.)
II
Substantial Evidence Supports the Court's Finding the Beneficial Parent/Child Exception Under Section 366.26, Subdivision (c)(1)(A) Did Not Apply
Paul contends the court erred when it determined the beneficial parent/child relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(A) did not apply. He argues the evidence shows that he maintained consistent and positive visitation with Anna, and she would benefit from continuing the parent-child relationship.
The Agency submits the juvenile court properly terminated parental rights. It asserts Paul did not maintain a parent-child relationship with Anna; thus, the court did not err when it determined that the benefits of adoption outweighed any incidental benefit to Anna from continuing her relationship with Paul. Minor's counsel joins with the Agency's arguments.
The reviewing court must affirm a trial court's rejection of the exceptions to termination of parental rights if the ruling is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.); Zachary G., supra, 77 Cal.App.4th at p. 809.) We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
At a section 366.26 hearing, the court may order one of three alternatives—adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; Zachary G., supra, 77 Cal.App.4th at pp. 808-809; but see § 366.26, subd. (c)(1)(A), eff. Jan. 1, 2008.)
Once the court determines a child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) The beneficial parent-child exception applies when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).)
We recognize that interaction between parent and child will usually confer some incidental benefit to the child. (Autumn H., supra, 27 Cal.App.4th at p. 575.) If a parent has maintained consistent and regular visitation with the child, the focus then turns to whether the child would benefit from continuing the relationship. To determine benefit, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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." (Ibid.)
The record indicates Paul did not maintain regular and consistent visitation with Anna within the meaning of section 366.26, subdivision (c)(1)(A). Paul cancelled visits and did not take advantage of the court's order for liberal unsupervised visitation. The record shows after Anna's detention with Aunt Paula in January 2007, Paul visited Anna approximately 17 times between February 7 and July 16, 2007, twice in August and once in September. The social worker believed Paul lacked the initiative to visit Anna more frequently and to develop a true parental relationship with her. In view of Paul's diminishing visits, the record of visitation supports the inference Paul was not committed to establishing a beneficial parent-child relationship with Anna.
Further, substantial evidence supports the finding Paul did not provide Anna with the attention, nurturing and structure that she needed. Anna was negatively affected by the parents' chaotic environment and the numerous altercations that occurred in her presence. After Anna was returned to parental custody at the 18-month review hearing, Aunt Paula continued to care for Anna four to five nights each week. Aunt Paula testified that Paul loved Anna but he was "a bit absent" with Anna. Anna did not have Paul's full attention. Anna displayed little emotion or affection when visiting Paul. During visits, she played with toys and did not interact much with Paul.
The social worker noted that Anna was very affectionate with Aunt Paula and her grandfather. When Anna was at home with Aunt Paula, Anna appeared more lively, animated and happy. The social worker opined that Anna looked to Aunt Paula and her grandfather to meet her developmental and emotional needs, and she would greatly benefit from the stability and security of a permanent adoptive home with Aunt Paula.
The record supports the conclusion Anna would not be greatly harmed by the severance of her relationship with Paul. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Anna has been in Aunt Paula's care since Anna was two months old. Anna identified Aunt Paula and her grandfather as her primary caregivers. Paul did not develop the type of positive parent-child relationship with Anna that would outweigh Anna's needs for the stability and security of a safe, nurturing and permanent home. The court's findings are supported by substantial evidence, and we must affirm the judgment. (Id. at p. 576; Zachary G., supra, 77 Cal.App.4th at p. 809.)
DISPOSITION
The judgment and order are affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.