Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of San Diego County, No. J516751A, Martin W. Staven, Judge. (Retired judge of the Tulare Sup. Ct., assigned by the Chief Justice, pursuant to art. VI, § 6, of the Cal. Const.).
IRION, J.
Jason P. appeals orders terminating parental rights to his son, Z.P., 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 orders.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Z.P., now age eight, is the son of Jason P. and Renee S. He has a younger maternal half brother (brother). Jason and Renee have a history of domestic violence. They separated when Z.P. was a baby. Renee left Z.P. with Jason. Jason was convicted of misdemeanor willful cruelty to a child after leaving then 22-month-old Z.P. alone in a car in November 2003. At some point in time before September 2004, Z.P. returned to live with Renee in San Diego.
Renee does not appeal. She is mentioned when relevant to these proceedings.
In late 2004 the San Diego County Health and Human Services Agency (the Agency) received two referrals concerning Z.P. The Agency was not able to substantiate allegations that Renee beat Z.P., bruised his face, locked him in a closet and let him go hungry.
In July 2007 the Agency detained Z.P., then age five, and his brother, age three, (together, the children) in protective custody. Z.P. had multiple injuries including healed lacerations, bruising and new abrasions. He had at least three linear scars on his scalp and seven on his face, including his ear, and several scars on the back base of his neck. There were numerous bruises on his body, some consistent with hand prints. Z.P. had a new cigarette burn and a bite mark on his back. He also had a scar on top of his left hand that extended from his knuckles to his wrist. Physicians were unable to rule out accidental trauma for the cause of the lacerations; however, the physicians were concerned because the number of scars was abnormally high and many of the healed lacerations did not appear to have been treated. Renee blamed Jason for Z.P.'s injuries.
Z.P. was traumatized. Questions about his injuries caused him to vomit and cry. He appeared to be afraid of his mother. When stressed, Z.P. spoke in an indeterminable language. He was severely delayed, and his anxiety and depression levels were borderline clinical. Z.P. displayed significant behavioral problems. He and his brother were physically aggressive to the point of injuring one another.
The Agency located Jason in the Monterey Bay area before the August 2007 jurisdiction and disposition hearing. The court removed the children from parental custody and implemented a plan of family reunification services for both parents. Jason's services included counseling, participation in a psychological evaluation, and completion of a parenting education class. Jason objected to participating in reunification services. He was often agitated during telephone conversations with the social worker and asserted he was a victim of a government conspiracy. Jason asserted he had not been able to find Z.P. and had not seen him in several years, and that Renee was to blame for the proceedings.
Jason was provisionally diagnosed with Asperger's Disorder. The diagnosing psychologist stated Jason would require assistance and monitoring to ensure he was attentive to Z.P.'s needs, and questioned Jason's level of attachment to his son. The paternal grandmother and grandfather and other family members voiced concerns about Jason's history of instability. In December 2007 Jason told the social worker he was relocating to San Diego to focus on reunifying with Z.P. However, several months later, the social worker could not determine where Jason was living. Family members said the paternal grandfather gave a truck and $6,000 to Jason to help him settle in San Diego. They believed Jason did not obtain an apartment and was living out of the truck.
The Agency provided Z.P. with extensive services, including private school, therapeutic behavioral services, comprehensive assessment and stabilization services and specialized foster care. Z.P. began to tell his therapist about his injuries. He said his mother burned him with his grandmother's cigarette because she was mad at him. Referring to the scar on his left hand, Z.P. stated his mother had held his hand to an electric burner. He said his mother had cut him with a knife under his left eye, leaving a scar. A maternal uncle told the social worker that Renee and the maternal grandmother hit Z.P. at least every other day. The uncle saw Renee beat and kick Z.P. Renee favored her younger son, showering him with affection and attention, while ignoring Z.P. Z.P. said of his mother, "She doesn't like me."
Jason asserted he had done more for Z.P. than the foster parent did, and the Agency should return Z.P. to his care. The social worker reported Jason was focused on his resentment against the government and the feeling he had been victimized by the dependency proceedings. She observed Jason appeared to struggle with the necessary skills to function in mainstream society and questioned whether Jason's mental health was stable. In July 2008 Jason was arrested on charges of grand auto theft and burglary of his father's vacation home in the San Diego area, and was released to his mother in the Monterey Bay area.
In January 2009, after three failed foster care placements, the Agency placed Z.P. and his brother in the home of a maternal great-aunt. The great-aunt had successfully raised six children and was willing to adopt Z.P. and his brother. The social worker stated the placement was therapeutic for Z.P. Z.P. tested in the average range in cognitive ability with strength in the area of nonverbal reasoning, and in the low average range in math and academic fluency. He was able to stop taking psychotropic medication and was getting along better with his brother and other children.
Z.P. refused to visit Renee. His visits with Jason were described as appropriate, attentive, positive and stimulating. Jason visited him twice each month for two to three hours each visit. Z.P. enjoyed many fun activities with Jason, including playing computer games, baseball and soccer, and eating.
The court terminated reunification services at the 12-month review hearing on April 10, 2009, more than three months after the 18-month review date.
Jason visited Z.P. on April 11, 2009. He then stopped visiting Z.P. In September, Jason telephoned the social worker and asked to visit Z.P. When visits resumed in mid-September, Z.P. was happy to see Jason. They had a good time together and enjoyed each other's company. However, Z.P. acted out after visits, and told the social worker and his therapist he wanted to stay with his great-aunt, "Mamo."
The section 366.26 hearing was held on December 17, 2009. The same day, Jason filed a section 388 petition seeking Z.P.'s return to his care or alternatively, an extended period of reunification services. The court summarily denied Jason's petition.
The court received the Agency's reports and two (of three) addendum reports in evidence. The social worker testified Jason's interactions with Z.P. were age-appropriate. They ate together, talked, shopped, played arcade games and played in the park. Z.P. called Jason "dad" and was affectionate with him. However, Z.P. was disruptive and defiant after visits with Jason. His therapist believed those behaviors reflected Z.P.'s anxiety about any possible disruption of his current placement.
One addendum report was untimely and the court did not admit it in evidence over objection. We do not consider it here.
The social worker stated Jason had not been involved with Z.P.'s therapy or education. However, there were positive aspects to their relationship. Z.P. had a good time during his visits with Jason, and he looked forward to seeing his father. The social worker stated "it would be ideal" if Z.P. could have some continued contact with Jason.
The social worker testified Z.P. had a close relationship with his great-aunt. According to his therapist, Z.P. was doing well in his current placement and had made good progress. Z.P. knew adoption meant "you got a new family." The great-aunt was open to continued contact between Z.P. and Jason.
Jason testified his lack of visitation had been due to financial problems. Since September 2009, he had driven from the Monterey Bay area to San Diego twice a month to visit Z.P. Z.P. was always excited to see him and enjoyed their activities together.
The court found that Z.P. deserved permanency and security, and terminated parental rights.
DISCUSSION
A. Section 388
Jason contends the court erred when it summarily denied his section 388 petition (petition) asking the court to return Z.P. to his custody or alternatively, grant him an extended period of reunification services. Jason argues the petition made a prima facie showing sufficient to warrant a full evidentiary hearing and therefore the court's summary denial of the petition violated his due process rights to present evidence and cross-examine witnesses.
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.)
The petition alleged Jason's circumstances had changed in that Jason had participated in domestic violence classes and counseling in 2008 and 2009, and he did not have any history of domestic violence after he and Renee separated. Jason had not incurred any new criminal charges since 2008, which arose when he continued to use his father's truck after his stepmother rescinded permission. Jason asserted he could provide a stable residence for Z.P. He and Z.P. could stay with the paternal grandmother until Jason could secure his own residence. Although Jason was diagnosed with Asperger's Disorder, the psychologist stated that his psychological profile did not render him incompetent to care for Z.P.
The petition further alleged the modification of the prior court order would be in Z.P.'s best interests because Jason had the financial means to support Z.P.; he could meet his physical and emotional needs; and Z.P. wanted to continue to visit him. Jason averred he was more attentive to Z.P.'s physical appearance than his current caregiver, and provided clothing and shoes for his son. Jason had several college degrees and was working on his master's degree; therefore he was capable of understanding Z.P.'s special needs. Z.P. was in his fourth placement, and would adjust to living with his father. Jason would support visits between Z.P. and his brother.
The court did not err when it summarily dismissed the petition. Jason's participation in services, the temporary availability of a relative's home and his positive interactions with Z.P. during visits did not resolve the fact Jason had not demonstrated sufficient stability throughout the dependency proceedings to provide a secure environment for Z.P. Liberally construed, the petition states Jason was capable of stabilizing his circumstances with his mother's assistance, not that his circumstances were stable. Jason alleged he was capable of understanding Z.P.'s needs. However, he did not participate in decisions concerning Z.P.'s therapeutic treatment and educational needs during the length dependency proceedings. The court could reasonably determine the petition did not state a prima facie case of changed circumstances. (§ 388; In re Jasmon O., supra, 8 Cal.4th at p. 415.)
Further, Z.P.'s recovery from physical abuse and its emotional and developmental consequences was, in large part, dependent on the stability, constancy and security of his care. Z.P. was stabilized in his current placement and did not want to leave his great-aunt's home. In the recent past, Jason had not visited his son for more than six months. The petition was filed on the day Z.P.'s permanency plan was to be selected and implemented, and is disfavored. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
Thus, the liberally construed petition does not state a prima facie case that immediate placement with Jason or a delay in permanency was in Z.P.'s best interests. The court properly exercised its discretion when it found that the facts alleged would not sustain a favorable decision on the merits of the petition and denied Jason's request for a hearing. (Zachary G., supra, 77 Cal.App.4th at p. 806.) Thus there is no due process error. (See In re Angel B. (2002) 97 Cal.App.4th 454, 460-465.)
B. Termination of Parental Rights
Jason contends the court erred when it terminated his parental rights to Z.P. He argues termination of parental rights would be detrimental to Z.P. under the beneficial parent-child relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).)
Renee did not contest termination of parental rights.
At a section 366.26 hearing, the court may select one of three permanency plans: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) There is a strong preference for adoption over 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.) If the court determines the 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; but see § 366.26, subd. (c)(1)(A).)
An exception to termination of parental rights exists 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)(B)(i).) "Benefit from continuing the relationship" means "the [parent-child] 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575(Autumn H.).) The exception does not require proof the child has a "primary attachment" to the parent or the parent maintained day-to-day contact with the child. (In re S.B. (2008) 164 Cal.App.4th 289, 299; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1538; In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "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 .)
If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (Autumn H., supra, 27 Cal.App.4th at p. 576; In re S.B., supra, 164 Cal.App.4th at p. 298.)
Substantial evidence in the record supports the finding Jason did not maintain regular visitation and contact with Z.P. Jason's visitation with Z.P. was interrupted by his arrest in July 2008, and Jason did not visit Z.P. from mid-April to mid-September 2009. While the distance of Jason's home to San Diego and travel expenses could reasonably account for less frequent visitation, it does not account for a complete lack of visitation for six months. Further, there is no evidence in the record to show Jason maintained contact with Z.P. through telephone calls, cards and letters. Rather, Jason dropped out of Z.P.'s life without a word, leaving Z.P. disappointed, then angry and finally, resigned. In a conversation with the social worker about the meaning of adoption and its possible impact on visits with his father, Z.P. said, "I don't miss him."
Even if the record supported a finding of continued visitation and contact, the trial court could reasonably conclude that the strength and quality of the natural parent-child relationship did not outweigh Z.P.'s need for a permanent home with stable caregivers. (Autumn H., supra, 27 Cal.App.4th at p. 575.) As we have discussed, Z.P. had psychological needs commensurate with the physical abuse he suffered for more than two years. Jason was absent from his son's life for those years, and he was periodically unavailable to Z.P. during the dependency proceedings. An evaluating psychologist questioned Jason's attachment to Z.P. Jason did not make himself a constant in Z.P.'s life, and was unable to relocate to San Diego to facilitate family reunification even though he received considerable support from his father for that purpose. While Jason's visits with Z.P. were positive, and Z.P. gained some benefit from Jason's attention to him at those times, the record shows Jason was not involved in Z.P.'s treatment issues or education and was only minimally involved in other areas of his life.
The trial court was required to consider Z.P.'s wishes and act in his best interests. (§ 366.26, subd. (h)(1).) Z.P. had a positive attachment to his great-aunt and her children, and the placement was therapeutic and beneficial for him. Although Z.P. looked forward to and enjoyed his visits with Jason, he did not want to leave his great-aunt's home. Z.P. told the social worker, "I want to stay here with Mamo forever."
We conclude the trial court could reasonably determine that Jason did not establish a beneficial parent-child relationship with Z.P. Further the record fully supports the findings that Z.P.'s permanent placement with a stable, attentive and constant caregiver outweighed any benefit Z.P. may have received from his relationship with Jason, and Z.P. would not be greatly harmed by the termination of parental rights. (Autumn H., supra, 27 Cal.App.4th at p. 575; see In re Dakota H. (2005) 132 Cal.App.4th 212, 229-231.)
DISPOSITION
The orders are affirmed.
WE CONCUR: NARES, Acting P. J., McINTYRE, J.