Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Kenneth Fernandez, Temporary Judge, Super.Ct.No. SWJ004949
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
OPINION
McKinster, Acting P.J.
Cindy A. appeals from an order terminating her parental rights to her daughter, Autumn, and freeing the child for adoption. (Welf. & Inst. Code, § 366.26.) She contends that the court abused its discretion in denying her petition for modification pursuant to section 388 and in failing to apply the beneficial parental relationship exception pursuant to section 366.26, subdivision (c)(1)(A). Finding no abuse of discretion, we affirm the order.
All statutory citations refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Autumn was removed from her mother’s care at birth. Cindy’s older daughter, Ana, had been removed from Cindy’s care for general neglect and because of domestic violence between Cindy, her mother and her sister, with whom she had been residing. Cindy was not complying with her case plan in Ana’s case, and informed the social worker that she planned to return to her mother’s home to recuperate from Autumn’s birth. A section 300 petition was filed as to Autumn. Reunification services were ordered. Cindy completed anger management and parenting classes, but the social worker did not recommend reunification because she did not believe that Cindy had benefitted from the classes. Cindy was diagnosed with undifferentiated schizophrenia. She has poor impulse control and inadequate insight into her own actions. She did not address her issues in counseling. She continued to blame others for her involvement in the dependency system and did not take responsibility for her actions. Her income and housing were both unstable, and she displayed emotional instability as well. During visits with Autumn, Cindy and her mother, who often accompanied her, would frequently argue. Cindy was resistant to directions from the supervising social worker as to how to care for Autumn during visits. She displayed unrealistic expectations that she would be able to relocate to Alabama with Autumn and live with her husband, Chester A., despite her allegations of domestic violence. She also withdrew from individual counseling after only nine sessions.
Chester A. is now apparently deceased. Although Cindy was married to Chester A. when Autumn was conceived and born, he was not Autumn’s biological father and did not assert presumed father status. James E. was the alleged father. He is not a party to this appeal.
The court terminated reunification services on May 17, 2007, and set a selection and implementation hearing. Prior to the contested hearing on September 18, 2007, Cindy filed a petition pursuant to section 388, arguing that because of changed circumstances, Autumn’s interests would be best served by reinstating reunification services. After a hearing, the court denied the petition. After a contested selection and implementation hearing, the court terminated Cindy’s parental rights and those of Autumn’s legal father and her presumed father. The court referred Autumn for adoption planning.
Cindy filed a timely notice of appeal.
LEGAL ANALYSIS
THE COURT PROPERLY DENIED THE SECTION 388 PETITION
Section 388 provides for modification of existing juvenile court orders upon a showing of changed circumstances and a showing that the proposed modification may promote the child’s best interests. (§ 388, subds. (a), (c).) The burden of proving the changed circumstances and that the modification would promote the child’s best interest lies with the party who seeks the modification. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The petition is addressed to the discretion of the juvenile court, and its decision will not be reversed on appeal in the absence of a clear abuse of discretion. (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) Thus, when two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
In her section 388 petition, Cindy stated that the court had terminated her services and set the case for a section 366.26 hearing because it found that she had not benefitted from the services she had already received. She noted that the court based that decision on incidents between Cindy and her mother which occurred during supervised visits with Autumn. Cindy contended that circumstances had changed because the court had excluded her mother from the visits, and there had been no more reports of inappropriate behavior during visits. She also stated that she had obtained her own residence and had achieved financial independence. During the hearing on her petition, her attorney argued that Cindy had begun to be able to apply techniques she had learned in her anger management classes and showed that she had benefitted from services.
Attorneys for the social services department and for the child contended that the visitation log showed that anger control was still an issue for Cindy, and that although her conduct during visits with Autumn was generally appropriate, there was no evidence of any change of circumstance that would cause a resumption of services to be in Autumn’s best interests.
The court found that Cindy had not demonstrated a change of circumstances and that the requested relief would not be in Autumn’s best interests in any event.
We find no abuse of discretion.
Cindy’s declaration does not establish that she has her “own” residence or that she is self-supporting or has otherwise achieved the stability which would allow her to provide a home for Autumn. On the contrary, she stated that she was living with her boyfriend, who was not charging her rent or for utilities and who was contributing financially to allow her to go to school. She was thus clearly not financially independent. Moreover, her relationship with this boyfriend was quite new—as little as three months before the hearing, Cindy had informed the social worker that she was about to move in with a different boyfriend, whom she had known for a month. Prior to that, she had had two or three different residences in the space of two months. Thus, this new living situation is not evidence that she had obtained stable housing.
Cindy also provided no evidence that she had addressed the issues resulting from her undifferentiated schizophrenia. According to the psychologist who evaluated her, this condition “results in continuous and stable disability unless treated.” Cindy had delusions which were “grandiose and persecutory in nature,” and she lacked the ability to look realistically at her own behavior which had led to the removal of her child. It left her “severely compromised” in terms of her ability to look after a child because of her poor impulse control, inadequate judgment and lack of realistic insight into her own behavior. Anger management was thus only one component of the issues Cindy needed to address. Therefore, even if we accept Cindy’s contention that she had begun to apply anger management techniques and had therefore benefitted from that aspect of the reunification services, we cannot find that the trial court abused its discretion by finding an insufficient change of circumstances such that resuming reunification services would be in Autumn’s best interests.
THE COURT DID NOT ABUSE ITS DISCRETION WHEN IT FOUND THAT THE BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION DID NOT APPLY
As effective on the date of the selection and implementation hearing in this case, section 366.26, subdivision (c)(1) provided in pertinent part as follows:
“If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, 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.” (Former § 366.26, subd. (c)(1).) Cindy asserted this exception at the selection and implementation hearing, and now contends that the court abused its discretion by finding that the exception did not apply.
Former section 366.26, subdivision (c) was amended, effective January 1, 2008. The above provision now appears in subdivision (c)(1)(B)(i).
The Legislature has expressed its preference for adoption in all cases in which a court finds that a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated. (In re Casey D. (1999) 70 Cal.App.4th 38, 51 .) In an exceptional case, in which one of the section 366.26, subdivision (c)(1) circumstances exists, the trial court may choose another option, if it finds a compelling reason to do so. (In re Celine R. (2003) 31 Cal.4th 45, 53.) We review a determination that the exception does not apply under a deferential substantial evidence/abuse of discretion standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We will overturn the juvenile court’s decision only if we find, based on all of the evidence, viewed most favorably in support of the juvenile court’s action, that no court could reasonably have made the order terminating parental rights. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Former section 366.26, subdivision (c)(1)(A) (now subdivision (c)(1)(B)(i)) applies only when “severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Here, the evidence supports the conclusion that Autumn does not have a substantial parental relationship with Cindy. Autumn was removed from Cindy’s care at birth. Cindy has visited Autumn regularly and frequently, but Autumn is clearly bonded to her prospective adoptive parents and looks to them for comfort and security. The beneficial parental relationship exception applies only where the parent actually stands in a parental role to the child. Frequent and loving contact is not enough. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) Autumn does not see Cindy as her parent, and Cindy has not cited any evidence which compels the conclusion that severing their relationship would deprive Autumn of a “substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The court therefore did not abuse its discretion in finding that the exception does not apply.
DISPOSITION
The order terminating parental rights and referring Autumn for adoptive planning is affirmed.
We concur: Richli, J., King, J.