Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. J205627. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, §21.).
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ, P.J.
Appellant H.T. (Mother) is the mother of Justina M., who was declared a dependent of the juvenile court, removed from Mother’s custody, and detained in foster care. Mother challenges the juvenile court’s denial of her petition for modification of court order under Welfare and Institutions Code section 388 and its order terminating her parental rights under section 366.26. Specifically, Mother argues: (1) the juvenile court abused its discretion when it denied her an evidentiary hearing on her section 388 petition because she showed a change in circumstances and that reunification was in Justina’s best interests; and (2) the juvenile court erred when it terminated her parental rights because she had a beneficial parental relationship with Justina that outweighed the benefit to Justina from a permanent adoptive placement. As discussed below, we affirm the orders of the juvenile court.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Statement of Facts and Procedure
Justina M. was born in April 2005 to Mother and Justin M. (Father). In December 2005, Justina was taken into protective custody after Father’s six-year old daughter, Justina’s half-sister, told paternal relatives that Father had sexually abused her. Paternal relatives told the social worker that Father had previously admitted to having sexually abused two other female relatives.
This appeal concerns only the termination of Mother’s parental rights.
At the detention hearing held on January 3, 2006, the court ordered Justina detained in confidential foster care and granted Mother visitation twice per week. At the jurisdiction/disposition hearing held on March 17, 2006, the parents did not contest the allegations in the section 300 petition that Justina was at risk of sexual abuse because Father had sexually abused Justina’s half-sister and Mother failed to take adequate measures to protect the child (§ 300, subd. (d)) and that Mother had previously failed to reunify with two other children (§ 300, subd. (j)). The parents’ decision not to contest the allegations was made in anticipation that they would be granted reunification services. The court did grant reunification services. At the request of the parents, Justina remained in foster care rather than being placed with a paternal aunt.
The six-month status review hearing was held on October 17, 2006. The court found a substantial probability that Justina could be returned to her parents within 18 months of removal and continued reunification services.
The 12-month status review hearing was held on April 19, 2007. Mother and Father and the social worker testified. Mother testified that she did not believe Father had molested Justina’s half-sister and nothing would ever convince her otherwise. She did not believe she needed to take any precautions to protect Justina from similar abuse. Father testified that he had not sexually abused Justina’s half-sister. The social worker testified that Mother’s court-ordered therapist had reported that there was no point to additional therapy sessions because Mother was either unable or unwilling to make progress in the areas of anger management and protecting Justina from abuse. The social worker also testified that Mother was quite “volatile” in her dealings with Department of Children’s Service (DCS) personnel. The juvenile court terminated the parents’ reunification services and set a hearing under section 366.26 to set a permanent plan for Justina and determine whether to terminate parental rights.
On August 9, 2007, Mother filed a section 388 petition to modify court order based on changed circumstances. The bases for the petition were Mother’s claims that Father had left the area since the last court date, a letter from Mother’s longtime therapist stating that she could adequately care for Justina, and the fact that Mother was maintaining her own residence and successfully caring for Justina’s baby brother. The court denied the petition the same day, without hearing, because the petition did not show that it would be in the best interest of Justina to change the court’s orders terminating reunification services and setting a section 366.26 hearing.
The section 366.26 hearing was held on September 4, 2007. Both Mother and the social worker testified. Mother testified about her visits with Justina and why she believed her parental rights should not be terminated. The social worker also testified about her observations of Mother’s visits with Justina. The juvenile court terminated parental rights and selected adoption as the permanent plan for Justina. This appeal followed.
Discussion
1. Section 388 Petition
Mother argues the juvenile court abused its discretion in denying her an evidentiary hearing on her section 388 petition because she showed changed circumstances and new evidence which demonstrated reunification was safe and in Justina’s best interests.
To obtain a hearing on a section 388 petition, a parent must make a prima facie showing that (1) changed circumstances or new evidence require the modification of the prior order and (2) the requested change would promote the best interests of the child. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) “In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]” (Id. at p. 189.) The juvenile court’s decision whether to grant a section 388 petition is reviewed for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
The California Supreme Court typically uses the phrase “prima facie showing” to refer to a showing “that is sufficient to support the position of the party in question” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851) or a “statement of specific facts which, if established,” would entitle the petitioning party to relief (In re Serrano (1995) 10 Cal.4th 447, 455). That general definition applies in the context of a section 388 petition. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
In her section 388 petition, filed August 9, 2007, Mother sought to persuade the juvenile court to change its orders of April 19, 2007, terminating reunification services and setting the section 366.26 hearing. Mother also requested the court return Justina to her custody. The change in circumstances Mother cited is that the Father had “left the area and has had no contact with his attorney” and that Mother believed he was out of state. Mother also stated that she continued to maintain her own residence and provide for her infant son, born during this dependency, and attached a letter from her long-time therapist stating that “she is able to adequately care for her children.” Mother concluded that Father’s disappearance “no longer places the minor at risk from the Father.” The trial court summarily denied the petition without a hearing because “[t]he request does not show that it will be in the best interest of the child to change the order.”
The petition on its face fails to establish either changed circumstances or that it would be in Justina’s best interest to be returned to Mother. First, there was no indication in the petition that Father had permanently left the area or that Mother would be able to protect Justina from being sexually abused should Father return. Second, the bare statement by Mother’s long-time therapist that “she is able to adequately care for her children” does not address the failure to protect issues that formed the basis of this dependency. The same goes for Mother’s claim that she maintains her own residence and provides for Justina’s infant brother. Finally, Mother’s petition did not make a prima facie showing that returning Justina to her would be in Justina’s best interests. Mother merely concluded that Father’s apparent absence “no longer places the minor at risk from the Father.” It did not purport to even address Justina’s best interests. Thus, we conclude that the juvenile court did not abuse its discretion when it denied Mother’s section 388 petition without a hearing.
In fact, Father did return to the area as early as August 16, 2007, only seven days after the petition was filed. Sheriff’s deputies arrived at Mother’s residence in response to a hangup 911 call, which Mother placed after an argument with Father escalated to physical violence. Father had ripped the telephone out of the wall and was later placed under arrest, which he resisted.
2. Beneficial Parental Relationship
Mother also argues the court erred in terminating reunification services and setting a section 366.26 hearing because the evidence showed Justina would benefit from the continuation of her relationship with Mother under section 366.26, subd. (c)(1)(A).
Effective January 1, 2008, the parental benefit exception is now found at section 366.26(c)(1)(B)(i).
At a hearing held pursuant to section 366.26 to select and implement a permanent plan for a minor whose parent has failed to reunify, the juvenile court must first determine whether the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) Once the juvenile court has made the finding of adoptability, “the court shall terminate parental rights and order the child placed for adoption,” unless it also determines that this would be detrimental to the child under one or more of the five circumstances set forth in subdivisions (c)(1)(A) through (c)(1)(E). In cases where the parent has failed to reunify with the minor and the juvenile court has found the minor to be adoptable, the burden then shifts to the parent to establish that one or more of these five exceptional circumstances exists. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) The appellate court must affirm the trial court’s conclusion that none of these exceptional circumstances is present if the ruling is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The criterion for establishing the parental relationship exceptional circumstance is whether “The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).)
Mother does not dispute that Justina is adoptable. However, Mother argues that there is not substantial evidence in the record to support the juvenile court’s finding that “The evidence about the nature of any relationship between the child and the parents is not such that that relationship would outweigh the well-being that this child would have from having a permanent adoptive home.”
There is no question that Mother “maintained regular visitation and contact” with the minor, in the form of twice-weekly supervised visitation. However, Mother was also required to establish that the minor would benefit from continuing the Mother-child relationship. The courts have clarified this exception “to mean the relationship promotes 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.) The courts have also clarified that even “frequent and loving” contact between parent and child is not enough to establish that the child would “benefit from a continuing relationship” as required by statute, where the parent does not occupy a “parental role” in the child’s life. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) “Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Here, there is substantial evidence on the record to support the juvenile court’s finding that Justina would not benefit from a continuing relationship with Mother. First, at the time of the selection and implementation hearing, the minor had been in the care of the foster parents for 20 months of her 29 months of life. Second, in the section 366.26 report, the social worker notes that Justina “continues to develop a significant attachment to her prospective adoptive parents.” Third, and most important, there is no evidence in the record that Mother occupies a “parental role” in Justina’s life, nor that Justina has a “substantial, positive emotional attachment” to Mother such that Justina would be “greatly harmed” if adopted and Mother’s parental rights were terminated. Observers of Mother’s twice-weekly visits have consistently described Mother as being non-verbal with Justina. The social worker testified at the 12-month status review hearing that Mother “has to be prompted to just speak, interact, play with” Justina. “She usually just sits and the child plays at her feet or runs around. Sometimes she chases after her but she doesn’t speak to her.” Mother testified at the section 366.26 hearing that Justina runs up to her at visits so Mother can pick her up. The social worker testified that, while Mother and Justina would play and have fun together at visits, Justina would also run up to and play with the social worker, as well as other people with whom Justina was familiar. Mother simply did not meet her burden to establish the parental bond exception.
To conclude, substantial evidence in the existing record, as described above, does support the juvenile court’s conclusion that Justina’s attachment to Mother was not so strong that she would suffer detriment from the severing of that relationship, especially when compared with the benefit Justina will receive from having a stable and permanent adoptive placement.
Disposition
The orders of the juvenile court are affirmed.
We concur HOLLENHORST, J. GAUT, J.