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In re Angel V.

California Court of Appeals, Fourth District, First Division
Mar 11, 2008
No. D051825 (Cal. Ct. App. Mar. 11, 2008)

Opinion


In re ANGEL V., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. YVONNE M., Defendant and Appellant. D051825 California Court of Appeal, Fourth District, First Division March 11, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from orders of the Superior Court of San Diego County, Carol Isackson, Judge, Super. Ct. No. J516347A

McINTYRE, J.

Yvonne M. appeals an order terminating her parental rights to her son, Angel V., and an order denying her Welfare and Institutions Code section 388 petition. (Statutory references are to the Welfare and Institutions Code.) She asserts the court erred because she showed a change of circumstances and that it would be in Angel's best interests to grant her petition, and she showed the beneficial parent-child relationship exception to termination of parental rights and adoption. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On August 14, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Angel, alleging he tested presumptively positive for methamphetamine at birth; Yvonne admitted using drugs during her pregnancy and tested positive for methamphetamine during a prenatal visit; and Angel's father has a history of drug use and knew Yvonne was using drugs.

The social worker reported Yvonne was homeless and not prepared to care for Angel. The court ordered her to enroll in the Substance Abuse Recovery Management System (SARMS) program. Angel was detained with the maternal grandmother (the grandmother).

Yvonne submitted to the allegations of the petition. The court found them true, declared Angel a dependent child and ordered the parents to comply with their case plans.

For the six-month review hearing, the social worker reported she had been unable to locate Yvonne. Yvonne left her a message, saying she had been visiting Angel, but did not leave contact information and did not comply with other components of her case plan. At the March 13, 2007 hearing, the court found she had not made substantive progress, terminated services and set a section 366.26 hearing.

The social worker opined Angel was adoptable. He continued to live with the grandmother, was in good health and developing well. The grandmother was willing to adopt him and there were 32 other approved adoptive families interested in adopting a child like Angel.

On September 25, 2007, Yvonne filed a section 388 petition requesting six more months of reunification services and expanded visits. She alleged she had been participating in services related to the dependency of Angel's two-month-old sibling and it would be in Angel's best interests to grant her request.

At the section 388 and section 366.26 hearings on October 5, 2007, the SARMS worker testified Yvonne had enrolled in SARMS on August 8, had had seven negative drug tests and was in compliance with the SARMS program. A treatment counselor at the McAlister Institute testified Yvonne said she had first used marijuana seven years earlier and had used methamphetamine for about two and one-half years. She began treatment on August 15, was attending several meetings each week, and was at the beginning stages of recovery. Yvonne's therapist said she had met with Yvonne twice, and Yvonne appeared open to therapy. The social worker testified Yvonne was participating in services related to Angel's younger sibling's dependency. She said during visits Angel reacted positively to Yvonne, they played together and Yvonne comforted him when he cried.

Yvonne testified she had not used an illegal substance since April 2007 when she was arrested and incarcerated for two months. She wanted to reunify with Angel and was participating in services, visiting every week and she telephoned when she did not visit.

The grandmother testified she had cared for Angel for one year. She said Yvonne visited consistently, except for two periods of three to four weeks and during those times, she telephoned to ask about him. She said she would prefer that Angel be with Yvonne, but if that were not possible, she was willing to adopt him.

The court granted the Agency's motion to deny Yvonne's petition. It found that considering Yvonne's two and one-half years of using methamphetamine and seven years of using marijuana, her six months of sobriety that included two months of incarceration did not constitute changed circumstances. Further, did not show the change she requested would be in Angel's best interests. After hearing further argument concerning the section 366.26 hearing, the court found Angel was likely to be adopted if parental rights were terminated and the beneficial parent-child exception to adoption did not apply.

DISCUSSION

I. Section 388 Petition:

Yvonne contends the court erred by denying her section 388 petition. She argues she showed her circumstances had changed and it was in Angel's best interests to grant her petition.

Section 388 provides in part:

"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . 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 or to terminate the jurisdiction of the court . . . . [¶] . . . [¶]

"(c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."

In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. (§ 388; Cal. Rules of Court, rule 5.570(e); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) "It is not enough for the parent to show just a genuine change of circumstances under the statute[,] the parent must [also] show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

A court will not grant a section 388 petition on the basis of circumstances that have not changed, but are only in the process of changing. Granting a petition that alleges circumstances only in the process of changing in the hope that the child and the parent might be able to reunify some time in the future, causing a delay in providing a permanent home to the child, may not support the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

"The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A reviewing court will not disturb a court's discretionary ruling in a dependency proceeding " ' "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

Yvonne incorrectly argues this court must review the denial of her section 388 petition de novo. At the hearing, the Agency suggested Yvonne was required to meet the factors of section 366.21, subdivision (g)(1) in order for the court to grant her petition. The Agency made a motion akin to a motion for a directed verdict, arguing Yvonne had not established either requirement of section 388 and the court should consider the factors of section 366.21, subdivision (g)(1) in its analysis. The court stated it considered that the Agency's argument was that the court should use the statutory framework of section 366.21, subdivision (g)(1) when considering whether Yvonne had shown that her circumstances had changed and Angel's best interests would be served if the petition were granted. It stated it understood the Agency was suggesting it use the factors of section 366.21, subdivision (g)(1) as "an analytical tool or guide as opposed to saying [Yvonne] must establish this." The record does not indicate the court improperly based its decision on the factors of section 366.21, subdivision (g)(1), rather than those of section 388.

The record also does not show the court acted in excess of its jurisdiction under California Rules of Court, rules 5.690 and 5.695, which require findings and orders consistent with a disposition hearing, rather than a 12-month hearing. As stated above, the court stated it understood the Agency was suggesting it use section 366.21, subdivision (g)(1) as a guide. It did not improperly treat the hearing as a review hearing. The court found Yvonne had established changing, rather than changed, circumstances. It noted Yvonne's initial failures to treat her addiction and her subsequent enrollment in SARMS and found she had presented evidence of only a recent turnaround, and thus had not met her burden to show true changed circumstances. The court also stated that putting aside the section 366.21, subdivision (g)(1) analysis and concentrating on a section 388 analysis, it could not find that Angel's best interests would be served by prolonging uncertainty and delaying a permanent plan. On this record, we find the court did not act in excess of its jurisdiction. We consider the court's decision under an abuse of discretion standard and hold the court did not abuse its discretion.

In her petition, Yvonne alleged she was participating in therapy, SARMS and drug treatment. She also provided documentation of her progress in SARMS for August 2007 and a letter from the McAlister Institute indicating she began that program on August 27. Yvonne had first used marijuana seven years earlier when she was 14 and used methamphetamine for two and one-half years, beginning when she was 18. She did not participate in reunification services after Angel was declared a dependent and was terminated from SARMS. She continued to use methamphetamine, was then arrested and, after her release from jail, enrolled in SARMS and began treatment and therapy as part of Angel's younger sibling's case. By the time of the hearing, she had been sober for only six months, including the two months she was incarcerated. The court did not err by finding Yvonne showed changing circumstances, not that her circumstances had changed.

The court also did not abuse its discretion by deciding Yvonne had not shown Angel's best interests would be served by continuing her reunification services.

In In re Kimberly F., supra, 56 Cal.App.4th at pp. 530-532, the appellate court listed three factors a court might consider when determining if a child's best interests would be served by granting a section 388 petition: (1) the seriousness of the problem that led to the dependency and the reasons for any continuation of the problem; (2) the strength of the bond between the child and the parent and the child and the caretaker; and (3) the degree to which the problem may be removed and the degree to which it has been removed.

The problem that led to Angel's removal was Yvonne's serious methamphetamine addiction. She continued to use methamphetamine for nearly eight months after Angel was detained before beginning treatment. Angel had thrived in the grandmother's care and she was willing to adopt him. Yvonne's treatment counselor said Yvonne was at the beginning stages of recovery. She had never cared for Angel on her own. He had never lived with her and she had never provided for his daily needs. The court did not abuse its discretion by determining it was not in his best interests to offer additional services to Yvonne and delay permanency for him.

II. The Beneficial Parent-Child Relationship Exception

Yvonne contends the court erred by finding the beneficial parent-child relationship exception to termination of parental rights and adoption did not apply to this case. She argues she maintained regular visitation and contact with Angel, and the benefit of maintaining their relationship outweighed the benefit of adoption by the grandmother.

Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) Under the exception found in former section 366.26, subdivision (c)(1)(A), the parent was required to show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) We refer to the earlier version of the statute.) In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the exception]."

In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Even assuming the record shows regular visitation and contact, Yvonne did not demonstrate she had a parent-child relationship with Angel that was so beneficial that terminating her parental rights would be detrimental to him. Angel went to live with the grandmother when he was only three weeks old. He had never lived with Yvonne and she had not acted as his parent. That role had been fulfilled by the grandmother, and she was willing to adopt him. The social worker opined Angel needed the stability, permanency and nurturing which an adoptive home with the grandmother could give him. The court was "entitled to find the social worker credible and to give greater weight to her assessments and testimony." (In re Casey D., supra, 70 Cal.App.4th at p. 53.) Substantial evidence supports the court's finding the beneficial parent-child relationship exception to adoption did not apply.

DISPOSITION

The orders are affirmed.

WE CONCUR: McCONNELL, P. J., HALLER, J.


Summaries of

In re Angel V.

California Court of Appeals, Fourth District, First Division
Mar 11, 2008
No. D051825 (Cal. Ct. App. Mar. 11, 2008)
Case details for

In re Angel V.

Case Details

Full title:SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 11, 2008

Citations

No. D051825 (Cal. Ct. App. Mar. 11, 2008)