Opinion
D051849
4-24-2008
In re A.R. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ENRIQUE R. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Enrique R. and Juanita P. appeal a juvenile court judgment terminating their parental rights to their minor children A.R., B.R. and E.R. (collectively minors) under Welfare and Institutions Code section 366.26. Juanita and Enrique contend the court erred by summarily denying Juanitas section 388 petition for modification seeking to have the minors returned to her custody. Juanita and Enrique also challenge the sufficiency of the evidence to support the courts finding the beneficial parent-child relationship exception did not apply to preclude terminating their parental rights. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2006 the San Diego County Health and Human Services Agency filed petitions in the juvenile court on behalf of the two-year-old minors (who are triplets) alleging they were at substantial risk of harm because they were living in an unsanitary home without adequate food or clothing, and Juanita locked herself out of the house at 1:50 a.m., leaving the minors unattended. Enrique was in prison at the time on a parole violation for a domestic violence incident with Juanita. The court detained the minors in out-of-home care.
Both parents had criminal and drug abuse histories. Juanita had a diagnosis of bipolar affective disorder and had been hospitalized on several occasions. Enrique had a diagnosis of bipolar disorder and depression. The minors had developmental delays and had previously been dependents because of their parents mental illnesses, substance abuse histories and limited resources.
At a jurisdiction and disposition hearing, the court sustained the allegations of the petitions and removed the minors from parental custody. The court ordered the parents to participate in reunification services, including the Substance Abuse Recovery Management System (SARMS) program.
During the next six months, Juanita visited the minors but exhibited unstable behavior. She was loud and aggressive, used profanity, talked to the minors about inappropriate topics, had severe mood swings, was unable to control the minors behavior and used threats of violence. The minors were apprehensive around Juanita, and their behavior deteriorated after visits with her. Juanita did not participate in a psychological evaluation as scheduled and was incarcerated on charges of possessing drug paraphernalia. She was hospitalized three times for her mental illness. The social worker was unable to verify Juanitas claims that she was attending therapy and taking her medications.
Enrique was having supervised visits with the minors but asked to discontinue visits because he was entering a residential drug treatment program. Visits were set to resume after Enrique enrolled in a different program that allowed visits with his children.
According to a status review report, Juanita continued to have problems during visits with the minors. She was overwhelmed by their behavior, shouted at them, yelled profanities and threatened to strike one of them, causing a visit to be cancelled. Although the minors were happy to see Juanita, they did not obey her, and she could not control or direct them, even when they engaged in dangerous activities. Enrique had not participated in court-ordered services, including therapy, a psychological evaluation or parenting classes. He did not complete a drug treatment program and continued to test positive for drugs. Enriques visits with the minors were relatively consistent. The minors had been in the same foster home for the past six months, and were well-behaved and attentive in the foster mothers presence. They required a great deal of care and attention because of their many developmental needs.
The social worker recommended the court terminate services and set a section 366.26 selection and implementation hearing. Juanita was terminated from a parenting program, failed to submit to a psychological evaluation and was again hospitalized for her mental illness. She transitioned to a crisis center, but left before being officially discharged. Staff noted Juanita was agitated, uncooperative, had poor insight and poor judgment. She was readmitted to the hospital because she was suicidal, and had a razor with which she planned to cut her wrists. For a two-month period, Juanita visited the minors regularly except during her hospitalizations. She terminated several visits early.
Enriques compliance with SARMS remained poor. He could not produce proof he had completed a psychological evaluation. Enriques visits with the minors continued to go well, although he again entered a drug rehabilitation program which required canceling and rescheduling visits.
At a contested six-month review hearing, the court found Juanita had not participated in services, and Enrique had just recently begun to participate. Finding there was no substantial probability the minors would be returned to parental custody in the next six months, the court terminated services and set a section 366.26 selection and implementation hearing.
According to an assessment report, the minors had a healthy, secure parent-child relationship with their foster parent, who wanted to adopt them and was able to meet their needs. Other prospective adoptive families had also been identified.
At recent visits, the minors ran to Juanita, hugged and kissed her and called her "Mama" or "Mommy." E.R. twice asked Juanita if he could go to her house. Juanita was unable to effectively discipline the minors or adequately supervise them, requiring the social worker to intervene to keep the minors safe. They often cried or acted inappropriately with Juanita, including hitting and kicking her and yelling "no" when she tried to discipline them. The minors became increasingly hyperactive and emotionally unstable during visits. At the end of visits, they sometimes separated easily from Juanita and other times cried.
In the social workers opinion, Juanita had an unhealthy relationship with the minors. Juanita was unstable and volatile during visits, and the minors responded by being defiant, agitated, anxious and depressed. The social worker believed Juanita did not have a beneficial parent-child relationship with the minors, but instead caused them emotional trauma.
During a recent visit with the minors, Enrique was affectionate and appropriate. The minors called him "Dad" or "Daddy." They smiled and laughed, were affectionate toward Enrique and were calm and compliant for most of the visit. Enrique was able to direct the minors, he used age-appropriate discipline and assumed a parental role during visits. E.R. said he wanted to go home with Enrique. The minors separated easily from him at the end of visits.
The social worker believed Enrique loved the minors but did not have a beneficial parent-child relationship with them. He had not completed drug treatment, addressed issues of domestic violence or provided documentation of receiving mental health services.
Juanitas psychological evaluation confirmed her diagnosis of bipolar disorder. The evaluator reported Juanitas emotional state and history of noncompliance with psychiatric intervention may prevent her from adequately parenting her children. Given Juanitas guarded prognosis, the evaluator recommended the court pursue a permanent plan for the minors.
The social worker observed additional visits between Juanita and the minors, noting the same concerns with previous visits. The minors were generally happy to see Juanita, but their behavior quickly deteriorated, and Juanita was unable to control them or prevent them from engaging in hazardous activities. They were extremely aggressive during and after visits. The minors continued to enjoy positive visits with Enrique, although E.R. was anxious and aggressive following one visit.
Juanita filed a section 388 petition for modification, seeking to vacate the selection and implementation hearing and have the minors returned to her custody. As changed circumstances, Juanita alleged she had obtained stable housing, completed a parenting class and had been taking her prescribed medication for the past three months. As to best interests, Juanita alleged she could provide the minors with a safe, clean and nurturing home; she loved the minors and raised them for most of their lives; and the minors knew her and said they wanted to go home with her. The court found Juanita had not made a prima facie showing and summarily denied the petition.
At a contested selection and implementation hearing, the court found the minors were adoptable and none of the exceptions to adoption applied to preclude terminating parental rights. Finding adoption was in the minors best interests, the court terminated parental rights.
DISCUSSION
I
Juanita contends the court erred by summarily denying her section 388 modification petition. She asserts she made a prima facie showing her circumstances had changed and the proposed modification—returning the minors to her custody—was in the minors best interests. Enrique joins in Juanitas 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 change is in the childs best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Id. 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.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] 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.)
B
In support of her modification petition, Juanita produced a letter from the Community Research Foundation verifying that she planned to move to housing that would accommodate her children. The letter, written three weeks before the hearing, also indicated Juanita "takes her medication as prescribed." Additionally, Juanita provided documentation that she recently completed a 12-week parenting program, took a supplemental parenting course, continued to attend parenting classes, "learned a great deal" and was "[open to] hearing and learning new ideas and concepts." However, Juanitas recent move to a sober living home, compliance with taking her medication and completion of a parenting program, while commendable, did not show her circumstances had changed sufficiently to warrant having the minors returned to her care. Rather, Juanitas circumstances were "changing." A petition that alleges changing circumstances does not promote a childs best interests or stability for the child because it would mean delaying the selection of a permanent home to determine whether a parent who has not reunified with the child might be able to reunify at some future time. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) Significantly, Juanita made no prima facie showing she had successfully addressed her mental health problems—an issue that permeated these proceedings and placed the minors at risk in her care. Any changes in Juanitas circumstances were "not legally sufficient to require a hearing on her section 388 petition." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
C
Even had Juanita made a prima facie showing of changed circumstances, her petition did not show that placing the minors with her was in their best interests. During visits with Juanita, the minors were aggressive, hyperactive and emotionally unstable. They did not respond well to direction from Juanita, but instead were defiant, anxious, agitated and depressed. Although Juanita loves the minors and claims she could provide them with a safe and nurturing home, there is no indication the minors would be safe in her care. "The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388." (In re Justice P. (2004) 123 Cal.App.4th 181, 192.)
Further, the petitions liberally construed allegations did not show the minors best interests would be served by removing them from their prospective adoptive home and placing them with Juanita. Where, as here, " custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. " (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) After reunification services are terminated, a parents " interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. " (Ibid.) The proper focus of this case was the minors need for stability, continuity and permanency, regardless of Juanitas interest in reunification. (Id. at pp. 317-318; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) Because the facts alleged in the petition would not have sustained a favorable decision on the section 388 petition, Juanita was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)
II
Juanita and Enrique challenge the sufficiency of the evidence to support the courts finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating their parental rights. They both assert they regularly visited the minors, who would benefit from continuing their relationships with them.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, sec. 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) 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 courts order and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 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." (In re 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)(A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) 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 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re 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.) The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
Juanita regularly visited the minors except when she was hospitalized or at a crisis center. However, Juanita did not meet her burden of showing there was a beneficial parent-child relationship such that terminating parental rights would be detrimental to the minors. The minors recognized Juanita as "Mommy," were happy to see her at visits and were affectionate when greeting her. However, Juanita was not able to meet the minors emotional needs. The minors did not obey her and she was unable to control or direct them, even when they engaged in dangerous activities. Instead, she shouted at them, yelled profanities and used threats of violence. In contrast to their aggressive and defiant behavior with Juanita, the minors were well-behaved and attentive in the foster mothers presence. Juanita did not occupy a parental role in the minors lives, but instead, had an unhealthy relationship with them. Her unstable and volatile behavior caused the minors emotional trauma.
Further, the minors required a great deal of care and attention because of their many developmental needs. Juanita was not able to meet these needs, given her lack of parenting skills and history of untreated mental illness. Where, as here, the 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.) Substantial evidence supports the courts finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Juanitas parental rights.
C
Enrique regularly visited the minors to the best of his ability while he tried to address his substance abuse. However, he did not meet his burden of showing his relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption for them. The minors recognized Enrique as "Daddy," spontaneously showed him affection and generally had pleasant visits with him. However, they had no problem separating from Enrique after visits. Enrique had not participated in court-ordered services, including therapy, a psychological evaluation or parenting classes. He did not complete a drug treatment program and tested positive for drugs throughout the dependency proceedings. He did not progress beyond supervised visits. Although Enrique loves the minors and assumed a parental role during visits, he did not have a beneficial parent-child relationship with them. There was no evidence of a "significant, positive, emotional attachment" from the minors to Enrique such that terminating the parent-child relationship would result in great detriment to the minors. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Moreover, the minors had a healthy, secure parent-child relationship with their foster parent, who wanted to adopt them and was able to meet their many needs on a daily basis. The minors need for permanence and stability through adoption outweighed any interest in preserving parental ties. Substantial evidence supports the courts finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Enriques parental rights.
DISPOSITION
The judgment is affirmed.
We concur:
HALLER, J.
AARON, J.