Opinion
C043479.
11-24-2003
In re B.D., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. KIMBERLY G., Defendant and Appellant.
Kimberly G., mother of the minor B.D., appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 388, 366.26 [further undesignated statutory references are to this code].) Appellant contends the juvenile court erred in denying her petition for modification without a hearing, in finding the minor was likely to be adopted and in finding termination of parental rights would not be detrimental to the minor. Appellant further contends her trial counsels representation was inadequate. We affirm.
FACTS
The two-year-old minor and his eight-year-old sister were removed from appellants custody in July 2001 based upon appellants mental health problems which required her hospitalization. Additionally, she was later diagnosed with amphetamine abuse. The court ordered reunification services.
During the reunification period, the siblings, who were placed together, had to be separated due to severe aggression. The minor had serious behavioral problems which improved somewhat after the separation and initiation of individual therapy. With ongoing therapy and nurturing, supportive foster parents, the minors difficult behaviors began to lessen. The social worker felt foster placement offered the minor the best opportunity to work on his behavioral problems. Visits with his sibling were characterized by violence.
In July 2002, the court terminated reunification services due to appellants failure to participate. Appellant had either cancelled or not shown up at five of six visits scheduled in March, April, and May of 2002. The court also denied appellants request for a bonding study.
The assessment for the section 366.26 hearing stated that appellant visited the minor once in July and once in September 2002, and that the minor reacted with anxiety and tantrums. Appellants inconsistent visitation pattern had a negative impact on the minors emotional well-being. According to the assessment, the minor had made considerable improvement while in foster care and, while his current caretakers would not adopt him, a prospective adoptive family had been found and the transition to that home was going well. The minor was in good health with some speech delays, his behavior was more manageable, and he remained in weekly therapy. Nonetheless, the prospective adoptive family would need supportive services for his special needs. The social worker concluded the minor might be adoptable but requested additional time to assess the developing situation. The minor continued to have monthly supervised visits with his sibling although the assessment did not state whether or not the visits were beneficial to him. In October 2002, the court granted the request for a 90-day continuance.
In an addendum in February 2003, the social worker reported that the minor had been placed in the prospective adoptive home in November 2002. The minor continued in therapy and was still making progress and doing well. His prospective adoptive family had a strong commitment to him. The minor continued to react negatively to appellants visits. In the social workers opinion, there was no detriment to the minor in terminating parental rights.
Prior to the section 366.26 hearing, appellant filed a petition for modification seeking to re-open services. In the petition, appellant alleged she was participating in services, including residential substance abuse treatment, and had provided 10 clean tests in December of 2002 and January of 2003. Appellant alleged the proposed modification was in the minors best interest because her current clean and sober lifestyle would permit her to provide a stable and nurturing environment for the minor and would permit the minor to grow up with his biological mother. The court denied the petition without a hearing, stating: "Mere current participation in a residential treatment program is insufficient to show that the required modification is in the childs best interest or that there has been a sufficient change in mothers circumstances."
Subsequent to the denial, appellant provided supplemental information in the form of a psychological evaluation which concluded her psychological functioning had improved over the last nine months and that she could now benefit from services. The evaluation suggested appellant, who was in a co-dependent relationship, needed long-term therapy and that services should be contingent upon her maintaining sobriety.
At the section 366.26 hearing, appellant argued for a permanent plan of guardianship based upon her ongoing participation in services in another case. The juvenile court terminated parental rights, finding the minor was likely to be adopted and that termination of parental rights would not be detrimental to him.
DISCUSSION
I
Appellant contends the court abused its discretion in denying her petition for modification without a hearing.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]" (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parents interests in reunification but to the needs of the child for permanence and stability. (Ibid .; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
To establish the right to an evidentiary hearing, the petition must include facts which make a prima facie showing of a change in circumstances and that "the best interests of the child may be promoted by the proposed change of order." (In re Daijah T. (2000) 83 Cal.App.4th 666, 672-673; In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414; Cal. Rules of Court, rule 1432(b).) More than general conclusory allegations are required to make this showing even when the petition is liberally construed. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence . . . would sustain a favorable decision on the petition." (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
Appellants petition, even including the supplemental information, did not allege a prima facie showing the proposed modification was in the minors best interests. The four-year-old minor had significant problems as a result of appellants neglect that were finally responding to intensive services and the structure and consistency provided by both foster and prospective adoptive parents who were trained to deal with his special needs. Reinitiating reunification, which, according to the psychologist, should include long-term therapy, would disrupt the balance which had been achieved in the minors life. The minors reaction to visitation suggested continued contact with appellant would further destabilize him. The generalized allegations of the petition, lacking any reference to the minors characteristics and need for specialized care, did not demonstrate how the minors best interests might be promoted if the juvenile court granted the proposed modification. Merely suggesting that it was in the minors best interests to grow up in a sober environment with his biological mother was not enough. The juvenile court did not abuse its discretion in denying a hearing on the petition for modification.
II
Appellant argues the court erred in finding the minor was likely to be adopted.
Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) "[T]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 618.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
The minor was young and healthy. He did have some developmental delays and negative behaviors. However, his general behavior continued to improve and his prospective adoptive parents were aware of his problems. The minor had been transitioned to the prospective adoptive home where he continued to do well and the prospective adoptive parents were strongly committed to him. Substantial evidence supports the juvenile courts finding the minor was likely to be adopted. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
III
Appellant asserts the court erred in finding termination of parental rights would not be detrimental to the minor because the minor would benefit from continuing contact with her and because there was a strong sibling relationship.
"`At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, original italics.) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . ." (§ 366.26, subd. (c)(1).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 1463(d)(3); Evid. Code, § 500.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: "The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The benefit to the child must promote "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." (In re Autumn H. (1994) 27 Cal.App.4th, 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
Appellant failed to meet her burden to establish this exception. Not only was appellants visitation with the minor sporadic, but the reports clearly established that the minor reacted very negatively to contact with her. There was no evidence of a positive emotional attachment and thus no detriment to the minor in terminating parental rights.
A second circumstance under which termination of parental rights would be detrimental is when "[t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E).) The court must consider the interests of the adoptive child, not the siblings, in determining whether termination would be detrimental to the adoptive child. (In re Celine R. (2003) 31 Cal.4th 45, 49-50; In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)
Again, appellant did not meet her burden to establish the exception. Nothing in the record suggests there was a "close and strong" bond between the minor and his older sibling. On the contrary, the minor had to be moved from a placement he shared with his sister due to inter-sibling aggression and thereafter sibling visits were marred by violence. Even after many months apart, their visits had to be supervised by the foster care or adoption agencies. "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.) Appellant did not make such a showing. The juvenile court properly found there was no detriment to the minor in terminating parental rights.
IV
Appellant contends trial counsels representation was inadequate. She presents a laundry list of things which, she says, reasonably prudent counsel should have done. Some of these are matters outside the record, i.e., irregular communication with appellant, lack of preparedness for hearings, advising appellant on certain matters, having another attorney appear at hearings. Some relate to matters which are now final, i.e., not contesting various rulings including termination of services, setting the section 366.26 hearing and denial of the bonding assessment. Some concern unexplained tactical choices, i.e., continuances of the section 366.26 hearing, not filing a petition for extraordinary writ, not contesting evidence at the section 366.26 hearing, and failure to present a legally sufficient petition for modification. Appellant concludes she was prejudiced by counsels representation because she did not get a contested hearing on her petition for modification and did not have an opportunity to challenge the order terminating her reunification services.
Error may not be presumed on appeal. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 846.) Points not supported by legal argument or citation to authority may be deemed waived. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1332-1333, fn. 3.) Except for a general citation on the standard for demonstrating ineffective assistance of counsel, appellant has not properly supported her claim by legal argument or citation to authority. Appellants contention that counsel provided inadequate representation is waived.
Even were this not the case, appellant would not prevail. Matters affecting the adequacy of counsels representation which are outside the record, including discussions with appellant, cannot be reviewed on appeal. (People v. Pope (1979) 23 Cal.3d 412, 426.) Any inadequate representation relating to hearings and orders which are now final cannot now be raised. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1160.)
As to adequacy of counsel in the section 366.26 hearing or in preparing the petition for modification, we observe that: "Reviewing courts will reverse . . . on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.) When the record is silent on the reasons that counsel acted as he or she did, the case must be affirmed "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation[.]" (People v. Pope, supra, 23 Cal.3d at p. 426.)
Here the record is silent as to counsels choices. However, our review of the record discloses that the facts of the case — appellants poor participation in reunification, the minors severe neglect and his lack of any significant bond with either appellant or his sibling — left counsel with no tactical choices beyond the ones evident in the record and no factual basis for a more persuasive petition for modification. In the final analysis, it was not counsels action or inaction but appellants which led to termination of parental rights.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: SCOTLAND, P.J. and ROBIE, J. --------------- Notes: Section 388 provides, in part: "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 the court previously made or to terminate the jurisdiction of the court. . . . [¶] If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that hearing be held . . . ."