Opinion
A101701.
10-30-2003
In re Alonzo C., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. GUADALUPE R., Defendant and Appellant.
Guadalupe R. appeals a juvenile court order terminating her parental rights and finding her son, Alonzo C., likely to be adopted. (Welf. & Inst. Code, § 366.26.)[] She contends the court erred in summarily denying her section 388 petition for modification without an evidentiary hearing, and in failing to apply the continued beneficial relationship exception to adoption. (§ 366.26, subd. (c)(1)(A).) We reject these contentions and affirm.
All undesignated section references are to the Welfare and Institutions Code.
Fathers parental rights were terminated at the same section 366.26 hearing. He is not a party to this appeal.
BACKGROUND
Alonzo was born in November 2000 with a positive toxicology screen for cocaine and detained. He was declared a dependent of the court in December 2000. In August 2001, Alonzo was returned to appellant with Family Maintenance orders, and, from August 2001 until August 2002, the two resided at a residential drug treatment program.
In September 2002, the Alameda County Social Services Agency (Agency) filed a section 387 supplemental petition recommending Alonzos placement in foster care after he was again removed from appellants home because she tested positive for cocaine. The section 387 petition alleged that appellant had been terminated from the residential drug treatment program after having "relapse[d] into drug use," and was afraid to leave her home for fear of using cocaine. At the October 2002 jurisdiction hearing, appellant admitted the allegations of the section 387 petition and the court denied her further reunification services and set a section 366.26 selection and implementation hearing (hereafter .26 hearing) for February 7, 2003. Appellant did not file a petition for extraordinary writ. (Cal. Rules of Court, rule 39.1B.)
.26 Hearing Reports
The Agency social workers January 2003 .26 hearing report noted that, in October 2002, the court authorized weekly overnight visits with Alonzo for appellant. Appellant told the social worker that her work schedule did not accommodate weekly visits, she did not call to schedule visits for three weeks in November, and her last overnight visit was Christmas 2002. Appellant also said she was upset because Alonzo did not respond to her as his primary caretaker. The social worker opined that appellant was not in a position to regain custody of Alonzo. Although Alonzo had recently been treated for asthma, anemia, an ear infection and eczema, he was reported to be in good health and his social interaction with other children was age appropriate. He was described as "cheerful," "curious," "bright and active." In mid-January 2003, Alonzo was abruptly moved from his foster placement due to corporal punishment by his foster parent, and the move was a "confusing experience" for him. The placement social worker found Alonzo adoptable, and opined that due to his young age and good health an adoptive family would not be difficult to find. The report recommended termination of parental rights and Alonzos adoption.
The Agency social workers February 7, 2003 addendum to its . 26 hearing report stated that appellant provided employment receipts for December 2002 and January 2003 and three negative toxicology reports from October and November 2002. Appellant reported that she works at McDonalds one or two days per week, resides with a friend and would like to live with her mother. Appellants mother reported that appellant is welcome to visit her, but not live with her. Appellant reported that since mid-October she had visited Alonzo six times, with some visits lasting three or four days. She said she has not visited Alonzo more frequently because it is emotionally difficult for her other children to separate from Alonzo after the visits. Appellant reported that she believes that Alonzo views her as his mother, misses her, and wants to be back in her home. Appellants mother corroborated that Alonzo sees appellant as his mother or an "authority figure." Appellants mother also reported that she tells appellants other children that appellant loves them but "drugs rule [appellants] life." The residential drug treatment program reported that appellant left the program in December 2002 due to program "downsizing." Appellant attends the programs outpatient activities as well as Narcotics Anonymous (NA) meetings. The addendum report stated that Alonzo continues to display some separation anxiety since his January 2003 removal from his former caregiver. He continues to adjust to his current caregiver and foster sister.
Section 388 Petition
On February 6, 2003, the day before the .26 hearing, appellant served a section 388 petition seeking to vacate the order terminating her reunification services and setting the .26 hearing and seeking an additional period of reunification services. The supporting declaration by appellants counsel stated that, in mid-September 2002, appellant returned to the residential drug treatment program and thereafter participated in individual and group counseling sessions, accompanied other participants to their appointments, and provided referrals for persons seeking drug rehabilitation programs. It also stated that appellant often attends the program with Alonzo, and had negative drug tests on October 30, November 7 and November 25, 2002. Attached to the declaration were documents establishing appellants consistent attendance at NA and Alcoholics Anonymous (AA) meetings, employment at McDonalds, and participation in the residential drug treatment program.
Section 388 and .26 Hearings
The court summarily denied appellants section 388 petition without an evidentiary hearing, finding that she had failed to establish a prima facie case of changed circumstances or that Alonzos best interests would be served by the proposed modification. It then moved on to the .26 hearing.
Agency social worker Laura Loomis testified that Alonzo has some speech delays due to having been born drug exposed, and is being tracked by the Center for Vulnerable Children. Loomis said Alonzos asthma, anemia, and eczema are "minor issues" that do not constitute special needs. She also stated that although there is a "relationship" between appellant and Alonzo, any parental bond was harmed by their recent lack of contact. Loomis said Alonzos mental/emotional status was normal and age-appropriate, aside from confusion due to the change in his foster placement. Loomis opined that based on her experience in the Agencys adoptions unit, it will not be difficult to find Alonzo an adoptive home.
Appellant testified that she was Alonzos primary caretaker during the year they resided at the drug treatment program. During that time he was in a day care center during the day while appellant attended treatment programs. Appellant said that she saw Alonzo every week for an hour in September 2002, two times in October, three times in November, two times in December. She conceded that she could have seen him twice a week during that period. She made several attempts to schedule a visit with Alonzo in January and February 2003. Between October 2002 and January 2003 she also spoke with him by phone. During her visits with Alonzo between October 2002 and January 2003, appellant was his primary care provider. During that period appellant and Alonzo stayed at appellants mothers house, a shelter, or at the residential drug treatment program. Appellant said he refers to her as "Mommy," is very happy to see her and affectionate toward her. He cries, says "Mommy," and reaches back for her when she returns him to the foster placement. He also runs to her and cries "Mommy" if he falls and hurts himself.
Social worker Maria Verdin testified she was Alonzos social worker from his August 2002 foster placement through mid-January 2003. During that time she visited Alonzo weekly and coordinated his visits with appellant. Verdin said that in the 16-week period from October 18, 2002, up to the .26 hearing, appellant had five visits with Alonzo. Verdin testified that Alonzo called the prior and present foster mothers "Mommy," and was able to form an attachment with the former foster parents. During Verdins weekly visits with Alonzo, she had never heard him ask for appellant or his siblings. Verdin said the Center for Vulnerable Children had never raised any medical or developmental concerns to her about Alonzo. She described Alonzo as a "lovely, energetic, really playful, sweet kid." He has shown resiliency in transitioning to the new foster placement. Verdin opined that Alonzo had looked to his former foster mother and now looks to his current foster mother as his primary caretaker. Verdin reiterated that appellant said she was concerned about not being perceived as Alonzos primary caretaker.
At the conclusion of the hearing, the court found Alonzo adoptable and the bond between appellant and Alonzo was not such that he would be harmed if appellants parental rights were terminated.
DISCUSSION
I. Section 388 Hearing
Appellant contends her section 388 petition set forth a prima facie case of changed circumstances, and, therefore, the court abused its discretion by denying her an evidentiary hearing on her requests to vacate the order setting the .26 hearing and for an additional period of reunification services. She also contends the court erred in finding that the best interests of Alonzo would not be promoted by the proposed modification.
Section 388 provides in relevant part: "(a) Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence which [is] alleged to require the change of order or termination of jurisdiction. [¶] . . . [¶] (c) If it appears that the best interests of the child may be promoted by the proposed change or order, . . . the court shall order that a hearing be held . . . ."
The section 388 petition must be construed liberally in favor of granting a hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) To be entitled to a hearing on the section 388 petition, the parent must make a prima facie showing of changed circumstances and it must appear that the best interests of the child may be served by a change in the order. (§ 388; Cal. Rules of Court, rule 1432(c); In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) The parent need not show a probability of prevailing on the petition at a full hearing. He or she need only make a prima facie showing to trigger a full evidentiary hearing. (In re Aljamie D., at p. 432.) "The conditional language of section [388, subdivision (c)] makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807, fn. omitted.) The prima facie showing requirement is not met unless the facts alleged in the petition, if supported by evidence at the hearing, would sustain a favorable decision on the petition. (Id. at p. 806; In re Edward H. (1996) 43 Cal.App.4th 584, 593.) The trial courts determination whether to hold an evidentiary hearing on a section 388 petition is subject to review for abuse of discretion. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Appellant asserts that the court should have liberally interpreted her section 388 petition which alleged that circumstances had changed since its October 2002 order terminating reunification and setting the .26 hearing. She argues that her allegations of her return to the drug treatment program following her drug relapse, negative drug tests, participation in AA and NA meetings and maintenance of housing and employment made out a prima facie case of changed circumstances. She also argues that the petitions allegations that Alonzo had been placed with her for a substantial period of his life, they were bonded, and she was in compliance with her case plan, were sufficient to establish that modification would be in Alonzos best interest. Finally, she discusses what testimony would likely have been presented in support of her petition at an evidentiary hearing. Like the juvenile court, we review the allegations of the petition to determine whether a prima facie case for a hearing has been demonstrated. We do not consider the speculative arguments as to what testimony may have ensued had an evidentiary hearing been held.
We conclude the court correctly ruled that appellants section 388 petition failed to establish the prima facie case necessary for an evidentiary hearing. In essence, the court found that her circumstances may have been "changing," but were not "changed" to the extent that a modification in placement was in Alonzos best interest. (In re Casey D., supra, 70 Cal.App.4th at p. 48; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799-1800.) The petition did not adequately allege that she had completed the former reunification plan or had overcome her substance abuse problems. Given appellants longstanding problems with drug and alcohol abuse, and her drug relapse approximately six months prior to the hearing on the section 388 petition, the court properly determined that her recent efforts at sobriety did not constitute changed circumstances. (See In re Anthony W. (2001) 87 Cal.App.4th 246, 251-252.) In addition, the petition did not assert facts establishing that she was prepared to effectively assume permanent parenting of Alonzo. Finally, in view of Alonzos need for stability and a permanent home, and appellants speculative opportunity for success, the petition, filed on the eve of the .26 hearing, did not establish that returning the child to appellant would be in his best interest. The court did not abuse its discretion in summarily denying appellants section 388 petition without a hearing.
II. Continuing Beneficial Relationship
At the .26 hearing, where possible, adoption is the permanent plan preferred by the Legislature. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Where the court finds a minor 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 that termination of parental rights would be detrimental to the minor under one of five enumerated exceptions. (§ 366.26, subd. (c)(1); In re L. Y. L., at p. 947.)
Subdivision (c)(1) of section 366.26 provides that if the juvenile court finds the child adoptable, "the court shall terminate parental rights and order the child placed for adoption" "unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
Here, the record establishes that appellant did maintain regular visitation with Alonzo although she visited him less frequently than was authorized by the court. The courts finding that appellant failed to establish the continuing beneficial relationship exception under section 366.26, subdivision (c)(1)(A) was based on that sections second prong. The court found that although appellant had a "very close" relationship with Alonzo for the one-year period while he was in her daily care, at the time of the .26 hearing he had not been in her care for approximately six months. The court found there was no current evidence of the kind of parent/child bond necessary for the continuing beneficial relationship exception to apply.
In In re Autumn H. (1994) 27 Cal.App.4th 567, the court interpreted "the `benefit from continuing the [parent/child] relationship 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. 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 parents rights are not terminated." (Id. at p. 575.) The determination is made on a "case-by-case basis," after considering the many variables which affect a parent/child relationship, such as the childs age, the portion of the childs life spent in the parents custody, the effect of interaction between the parent and child and the childs particular needs. (Id. at pp. 575-576; accord, In re Zachary G., supra, 77 Cal.App.4th at p. 811.) Numerous cases have followed the Autumn H. standard in determining the applicability of this exception. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 [more than mere friendly or familiar relationship required]; In re Derek W. (1999) 73 Cal.App.4th 823, 827 [pleasant and emotionally significant relationship not as determinative as consistent daily nurturing]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1420 [frequent and loving contact, without occupying parental role, not sufficient].)
Autumn H. applied the substantial evidence test in reviewing the courts findings under the continuing beneficial relationship exception. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) With one exception (see In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applied abuse of discretion standard]), cases subsequent to Autumn H. have employed the substantial evidence standard of review.[] (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207; In re Brandon C. (1997) 71 Cal.App.4th 1530, 1533-1534, 1538.) Under the substantial evidence test, we determine whether substantial evidence exists to support the lower courts findings. That substantial evidence may also exist to support a contrary finding is irrelevant for purposes of our review.
Jasmine D. has not been followed on this point by any published case thus far, and appellant urges substantial evidence as the standard of review. The Agency endorses the abuse of discretion standard. As Jasmine D. noted, both standards of review give broad deference to the trial courts judgment. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Appellant argues the juvenile court erred in finding that the exception was not proved because there was no substantial evidence that Alonzo was bonded to anyone but her as a caregiver, and the evidence established that she was the only caregiver with whom he had constant contact throughout his life. We disagree.
Alonzo was removed from appellant at birth and returned to her nine months later. After being in her primary care for one year, Alonzo was again removed from her care and had been in foster care for the six months prior to the .26 hearing. The social worker testified that any parental bond between appellant and Alonzo was harmed by their recent lack of contact. Although Alonzo refers to appellant as "Mommy," he has also addressed his two foster mothers as "Mommy," and looked to the foster mothers as his primary caretakers. Based on the record before us, we conclude substantial evidence supports the courts determination that appellant failed to establish that Alonzo would benefit to such a degree from continuing his relationship with her that he would be harmed if appellants parental rights were terminated.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: JONES, P.J. and STEVENS, J.