Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J517192 Laura J. Birkmeyer, Judge.
McCONNELL, P. J.
Rosemary R. and G.R. appeal a judgment terminating their parental rights to their minor daughter M.R. under Welfare and Institutions Code section 366.26. Rosemary argues the juvenile court erred by summarily denying her section 388 petition seeking the reinstatement of visits or placement of M.R. in her care. In the alternative, Rosemary asked that the court order additional services. G.R. joins in Rosemary's argument.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
Rosemary and G.R. also argue the evidence was insufficient to support the court's findings that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to preclude the termination of their parental rights. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2008, the San Diego County Health and Human Services Agency (the Agency) filed a petition on behalf of then two-year-old M.R. The petition alleged that M.R.'s parents were unable to provide her with proper care because Rosemary suffered from a mental illness and recently tested positive for methamphetamine. Rosemary further claimed that she was afraid of G.R. due to domestic violence in the family home. In addition, G.R. stated he suffered from depression.
According to the detention report, the social worker made an unannounced visit to M.R.'s home in July 2008. The home was very dirty and the social worker saw that M.R.'s lunch box was filled with marijuana. In addition, Rosemary had written messages and prayers on the wall of the home, stating the messages helped to calm her. The social worker observed that Rosemary was not able to focus well and she had difficulty answering his questions. At one point during the social worker's visit, Rosemary walked into the bathroom, left the door open, took off her clothes and started to take a bath. Rosemary admitted she was not taking her prescription medications and she had not taken them in quite some time. She also disclosed that G.R. fought with her, punched her, pushed her and forced her to have sex with him. The social worker contacted the police and Rosemary was taken to a county mental health office for a psychiatric evaluation.
Once admitted to the mental health facility, Rosemary tested positive for methamphetamine use. She denied, however, having a drug history but admitted that G.R. smoked marijuana. Rosemary stated she had a previous diagnosis of bipolar disorder but she had not had a mental health exam for two years. The facility eventually discharged Rosemary with a diagnosis of bipolar disorder. She was scheduled to follow up and participate in an outpatient services program. Rosemary refused to take any prescribed medication.
Concerning the domestic violence allegations, Rosemary stated she had called the police about three days before, following an incident between her and G.R. G.R. denied the domestic violence allegations. He further denied the use of any drugs or alcohol.
The court held a detention hearing in August 2008. The court made a prima facie finding on the petition and detained M.R. in the care of a relative.
Social worker Mark Hood filed an addendum report in September 2008. He reported Rosemary filed for a restraining order against G.R. Rosemary ignored the restraining order, however, and continued to have contact with G.R. The addendum report also included information generated from Rosemary's July 2008 psychiatric evaluation conducted by Dr. Robert Bloomgarden. He reported that Rosemary suffered from a history of mood disturbances generally associated with bipolar disorder. Dr. Bloomgarden noted that Rosemary denied using methamphetamines but her drug tests showed otherwise. He further stated that Rosemary was at risk for self-harm and she had a tendency to become agitated and threatening. The Agency reviewed the evaluation and recommended that M.R. remain in out-of-home care until Rosemary participated in services.
G.R. participated in a psychological evaluation conducted by Dr. Robert Kelin in November 2008. The doctor's report stated G.R. had a history of suffering from depression, that he had received psychiatric care and took medication for his condition. G.R. had been ordered to participate in counseling and parenting classes and in a substance abuse assessment.
According to an Agency report, as of November 2008 G.R. had not availed himself of these services. He claimed the domestic violence allegations against him were not true. He denied having a history of domestic violence or that he had ever hurt Rosemary.
G.R. admitted to having a drug history. He started abusing drugs as an adolescent and he admitted to drinking excessive amounts of alcohol and experimenting with cocaine. G.R.'s drug history showed that had been hospitalized for about one or two months, and then was released into an outpatient program for an additional six months of treatment.
The Agency reported that the parents participated in regular visits with M.R. The visits were supervised at all times. Visits generally were appropriate. M.R. referred to G.R. as her "daddy" and displayed affection toward him. G.R. would read to M.R., play with her, feed her and assist her in using the bathroom. At the end of some visits, M.R. would sometimes say "no" and then cry for a minute. Visits between Rosemary and M.R. were not as appropriate. Rosemary exhibited emotional instability and was hostile toward the visitation monitor.
In November 2008 the court held a jurisdiction and disposition hearing. The court declared M.R. a dependent and ordered the parents to comply with their case plans. The court also ordered supervised visitation.
In February 2009 the Agency received an approved Interstate Compact Placement Contract indicating M.R.'s maternal grandparents' home in Texas had been approved for placement. Rosemary and G.R. spoke with a social worker and expressed that they wanted M.R. placed with her grandparents even though this would result in decreased visitation. The parents agreed to participate in one visit a month should the court place M.R. with her grandparents.
Rosemary continued to participate in supervised visits with M.R. while M.R. remained in San Diego. However, Rosemary's behavior continued to remain unpredictable and hostile during the visits. During one visit, M.R. told a social worker that she was scared of Rosemary's behaviors. The social worker believed that M.R. showed signs of anxiety before and after visits took place. As visits continued, M.R. began to dislike attending visits. The Agency assessed that visits with Rosemary were not in M.R.'s best interests. The Agency filed a section 388 petition and requested that the prior court visitation order be changed, resulting in no in-person contact between M.R. and Rosemary.
In April 2009 the court ordered M.R.'s placement with her grandparents in Texas. The court further ordered the parents to have monthly supervised visits at a social services office in Texas, in addition to supervised telephone contact.
The Agency filed a six-month review report in May 2009 and recommended that the court terminate reunification services. Rosemary had received referrals for a domestic violence program, therapy programs and parenting classes. She had yet to enroll in any of these services. There was no information substantiating that Rosemary was taking medication to control her mental health problems. In addition, there was no information showing that G.R. was taking his medication. However, he had participated in a handful of therapy sessions, three parenting classes and a psychological evaluation. He had not participated in a domestic violence program. Both parents failed to drug test.
Before the scheduled six-month review hearing took place, the court suspended Rosemary's visitation with M.R. and ordered that she only have telephonic contact with the child. The Agency reported that in June 2009 Rosemary attempted to assault a social worker at the courthouse. In addition, Rosemary had made verbal threats against Agency staff. The Agency requested a temporary restraining order against Rosemary which was granted in June 2009.
The Agency filed a July 2009 addendum report, reporting additional criminal incidents that took place involving G.R. The police arrested him after he was seen urinating in public and banging on a neighbor's door. The police observed G.R. shouting and clenching his fists. The police believed G.R. was under the influence of alcohol.
The police also responded to a call at the parents' home. G.R. claimed Rosemary had attacked him by striking him with her hands and scratching his face. The police noticed G.R. had suffered scratches to his face. The police arrested Rosemary.
The court held a six-month review hearing in July 2009. The court reissued the restraining order against Rosemary and found the parents had not made substantive progress with their case plans. The court terminated reunification services. The court further granted the Agency's previously filed section 388 petition requesting the suspension of Rosemary's in-person visits with M.R. The court scheduled a section 366.26 hearing and ordered the Agency to prepare an assessment report.
Social worker Nicole Kelsay filed an assessment report in anticipation of the section 366.26 hearing. She assessed M.R. as adoptable based on her good health, young age, lack of developmental problems and outgoing personality. M.R.'s grandparents were committed to adopting her.
Kelsay reported that G.R. continued to have monthly supervised visits with M.R. During visits, M.R. would call G.R. "daddy" and she was affectionate toward him. M.R. also had daily telephonic contact with both parents. The caregivers reported the phone calls that took place were appropriate.
Kelsay did not believe M.R. had a significant parent-child relationship with her birth parents. She continued to have visits with G.R., but at the end of visits she was happy to return to her caregivers. She did not have in-person contact with Rosemary. The social worker noted that M.R.'s caregivers met her physical and emotional needs, and opined that M.R. was very attached to her caregivers.
Rosemary and G.R. did not make progress with their services or mitigate the original protective issues to reduce the risk of harm to M.R. They both had arrests during the last four months. The parents' behaviors continued to present a risk to M.R.'s safety.
Before the section 366.26 hearing took place, Rosemary filed a section 388 petition. She asked that the court either reinstate visits or place M.R. in her care. In the alternative, Rosemary asked that the court order additional services. As changed circumstances, she alleged she had participated in 12 therapy sessions and was taking medication. She claimed she had benefited from her medication and that her demeanor had improved. She further claimed she was participating in parenting classes and intended to move to Texas where she would continue to pursue services. Rosemary stated it would be in M.R.'s best interests to have contact with her because M.R. wanted to be with her mother.
The court held a prima facie hearing on Rosemary's section 388 petition. The court summarily denied the petition. It found the petition did not meet the prima facie requirements, and there was no evidence in the petitions showing changed circumstances or that it would be in M.R.'s best interests to be moved from her current placement. The court, in issuing its findings, noted that there was no documentation or support for the allegations made by Rosemary. There was no medical record supporting Rosemary's representations as to having participated in services or taking her medications. There was no certificate showing she had participated in any parenting classes. There was also no information showing M.R. could safely transition to Rosemary's care.
The court proceeded to the section 366.26 hearing and heard testimony from witnesses, including social worker Kelsay and the maternal grandmother. Kelsay testified that she spoke with the Texas social worker who had observed visits between M.R. and G.R. The Texas social worker reported visits between M.R. and G.R. went well and were positive. G.R. interacted with M.R. by playing with her, reading to her and bringing her food. M.R. appeared sad to end the visits. However, she was always excited to see her caregivers, and sometimes she would ask for them during visits.
M.R. last had visits with Rosemary in June 2009. At the last visit, Kelsay testified M.R. was afraid of Rosemary and hid behind the visitation monitor.
The caregivers reported to Kelsay that the parents called M.R. on a daily basis. The calls generally were brief. There were times in between calls that M.R. would ask about her parents or she would ask to call them.
The maternal grandmother testified that M.R. had daily telephone calls with Rosemary. M.R. sometimes did not express interest in talking on the phone and other times, she wanted to talk to Rosemary. The grandmother stated there were times when M.R. wanted Rosemary to visit. During telephone calls, Rosemary would tell M.R. she loved her. M.R. would sometimes say to Rosemary that she loved her.
After considering the evidence and hearing testimony from the witnesses, the court found by clear and convincing evidence that M.R. was likely to be adopted. The court addressed the beneficial parent-child relationship exception and found that both parents had regular contact with M.R. G.R. had regular visits and telephone contact with M.R. Rosemary had regular telephone contact. However, the court found that the relationship between M.R. and her parents was, at best, a friendly and familiar one. The parents did not meet M.R.'s daily needs or parent her on a daily basis. The court did not find M.R. would be harmed by terminating parental rights. The court terminated parental rights to Rosemary and G.R. and referred M.R. for adoptive placement. Rosemary and G.R. each timely filed a notice of appeal.
DISCUSSION
I
Rosemary contends the court erred by summarily denying her section 388 modification petition. Rosemary sought additional visits with M.R., or alternatively, that the court place M.R. in her custody with services. Rosemary asserts she made a prima facie showing their circumstances had changed and the proposed modifications were in M.R.'s best interests. G.R. joins in Rosemary's argument.
A
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, that (1) there is a change of circumstances or new evidence, and (2) the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.); In re Amber M. (2002) 103 Cal.App.4th 681, 685.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., supra, at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (Jasmon O., supra, at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799 (Hashem H.).) However, if the liberally construed allegations of the petition do not make a prima facie showing that the relief sought would promote the best interests of the child, the court may deny the petition without an evidentiary hearing. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 322-323 (Elizabeth M.).) "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.).)
B
The court correctly determined that the modification petitions filed by the parents did not state a prima facie case. (See Marilyn H, supra, 5 Cal.4th at p. 310; Hashem H., supra, 45 Cal.App.4th at pp. 1798-1799; Zachary G., supra, 77 Cal.App.4th at p. 806.) As changed circumstances, Rosemary alleged she was participating in therapy sessions, taking medication and participating in parenting classes. However, Rosemary did not provide documentation that she had participated in these services. Further, social worker Kelsay attempted to confirm Rosemary had been engaged in therapy, but the doctor with whom Rosemary allegedly was meeting did not return Kelsay's call. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250 [absent documentation, a court may deny a modification hearing].) Even if Rosemary had provided some documentation, she had yet to address the issues that led to M.R.'s dependency. Rosemary's ability to maintain a violence-free and drug-free lifestyle remained in question. After about 18 months of dependency proceedings, Rosemary continued to remain in a relationship with G.R. Rosemary did not take a single drug test to confirm her sobriety nor did she participate in reunification services to address domestic violence or her long history of mental health problems. Thus, even if her allegations were documented, her progress with services was, at most, a "changing" circumstance and "not legally sufficient to require a hearing on her 388 petition." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
C
Even if Rosemary had shown changed circumstances, she did not make a prima facie showing that it was in M.R.'s best interests to be placed in Rosemary's care. Rosemary asserted it would be in M.R.'s best interests to be placed in her care because M.R. wanted to be with her.
After termination of reunification services, the focus of the dependency proceedings is to provide a child with permanency and stability. (See In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609-610 (Baby Boy L.)[after reunification services are terminated, the focus of the court's concern shifts from assisting the parent in reunification to securing a stable new home for the child]; Kimberly H. v. Superior Court (2000) 83 Cal.App.4th 67, 71-72.) At the time of the court's consideration of the section 388 petition, Rosemary had been offered reasonable services but had made no progress toward reunification. Rosemary had shown little, if any, ability to safely parent M.R. or provide her with a safe, stable and permanent home. We note that telephonic contact between Rosemary and M.R. was appropriate and M.R. expressed wanting to talk to Rosemary. However, during the last in-person visits between Rosemary and M.R., the social worker reported that M.R. was afraid to see Rosemary. M.R. had not seen Rosemary for about six months. M.R. was very attached to her current caregivers who wanted to adopt her, and they met M.R.'s daily needs. M.R. referred to her grandmother as "mom." The petition made no showing of how M.R.'s best interests would be served by depriving her of a permanent, stable home in exchange for an uncertain future. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.) Because the liberally construed allegations would not have sustained a favorable decision on the section 388 petition, Rosemary was not entitled to an evidentiary hearing. (Zachary G., supra, 77 Cal.App.4th at p. 806; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)
II
Rosemary and G.R. challenge the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to preclude terminating their parental rights. Rosemary and G.R. assert they maintained regular contact with M.R. and that M.R. would benefit from having contact with them.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence, or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (Baby Boy L., supra, 24 Cal.App.4th at p. 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1)(B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i), provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship that "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. In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. 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." (Autumn H., supra, 27 Cal.App.4th at p. 575; accord Zachary G., supra, 77 Cal.App.4th at p. 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child.... The relationship arises from day-to-day interaction, companionship and shared experiences." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D. (1999)70 Cal.App.4th 38, 51 (Casey D.).) The parent must show he or she occupies a parental role in the child's life, resulting in a positive and emotional attachment from child to parent. (Autumn H., supra, at p. 575; Elizabeth M., supra, 52 Cal.App.4th at p. 324.)
B
The court found Rosemary and G.R. regularly visited M.R. Thus, we examine only whether substantial evidence supports the court's findings that they did not show they had a beneficial relationship with M.R. (§ 366.36, subd. (c)(1)(B)(i).)
Although Rosemary maintained contact with M.R. during the proceedings, she did not have a parental role in M.R.'s life. Despite being offered services, Rosemary did not participate in them and she was unable to perform basic parental duties such as keeping M.R. safe or being able to tend to M.R.'s everyday needs. Rather, Rosemary acted inappropriately during visits and M.R. showed signs that she was afraid of her. Rosemary did not progress to unsupervised visits and due to her negative behaviors during visits, contact between M.R. and Rosemary was limited to telephonic contact. Further, M.R. has not lived with Rosemary for about 18 months. The record repeatedly shows it was M.R.'s caregivers who met her daily emotional and physical needs and M.R. was attached to them. In addition, social worker Kelsay opined that M.R. did not have a significant parent-child relationship with Rosemary. (Casey D, supra, 70 Cal.App.4th at p. 53 [trial court entitled to find social worker credible and give great weight to her assessments and testimony].) Where, as here, a biological parent does not fulfill a parental role, the "child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)
G.R. participated in supervised visits with M.R. and visits generally went well. He played with M.R. and displayed affection toward her. M.R. was usually happy to see G.R., and sometimes she expressed sadness at the end of visits. However, there were also visits during which M.R. would ask if her caregivers had arrived to pick her up, and she did not cry when leaving the visitation center. Despite the friendly visits, G.R. never progressed beyond supervised visits, and, like Rosemary, he did not occupy a parental role in M.R.'s life. He has not shown he can safely parent M.R. or provide her with a safe home. The record instead shows G.R. continued to abuse alcohol and he was still dealing with mental health issues up until the section 366.26 hearing.
Further, there was no evidence that M.R. had a substantial, positive emotional attachment to either parent to permit the conclusion that terminating the parent-child relationship would result in great detriment to the minor. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; compare In re S.B. (2008) 164 Cal.App.4th 289, 294-295, 298-300 [minor would be greatly harmed by loss of significant, positive relationship she had with father, who complied with every aspect of his case plan].) M.R. was thriving in her placement and she looked to her caregivers to meet her needs. She referred to her grandparents as "mom" and "dad." The evidence showed M.R. would benefit more from the permanence of adoption than she would from maintaining a relationship with the parents. Although the parents love their child, "this is simply not enough to outweigh the sense of security and belonging an adoptive home would provide." (In re Helen W. (2007) 150 Cal.App.4th 71, 81.) Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to preclude terminating parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J., HALLER, J.