Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. DP012821 Carolyn Kirkwood, Judge.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Danielle T. (mother) appeals the denial of her Welfare and Institutions Code section 388 petition and the termination of her parental rights over B.P. (now age five) and J.P. (now age three). Mother contends the court abused its discretion by denying her section 388 petition without an evidentiary hearing. She further asserts the court’s termination of her parental rights was detrimental to the children under the beneficial relationship exception. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Formerly section 366.26, subdivision (c)(1)(A).
FACTS
In a January 2006 section 300 petition, Orange County Social Services Agency (SSA) alleged, inter alia, mother and father failed to protect B.P. (then age three) and J.P. (then age eight months) when the parties “engaged in an incident of domestic violence” in the children’s presence. (§ 300, subd. (b).) The parents had histories of drug abuse and domestic violence.
Further factual recitations will focus on mother since father is not a party to this appeal.
In its jurisdiction/disposition report, SSA reported the children had been placed in a foster home. B.P. had “behavioral problems, including . . . awakening at night screaming” and crying “out at night that her mother was hurting her.” “[B]ehaviorally [B.P. was] difficult for the foster parents.” “The foster parents observed [that during visits mother seemed] bonded to [B.P.] but tend[ed] to ignore [J.P.]” Mother and father had “lengthy histories of methamphetamine abuse and drug-related arrests” and had exposed the children to domestic violence. According to the social worker’s assessment, mother’s “motivation to work a case plan and regain custody of her children appears to be very low as evidenced by her not contacting Social Services and failing to show up for her Drug Court appointments, as well as her appointments to be interviewed by the [social worker]. [Mother] appears to lack parenting skills and appears quite immature. Both parents blame the other for initiating the domestic violence and for being more entrenched in drugs. Both parents profess that they do not plan to reunify with one another and that they are both better off without each other.”
In an interview with the social worker, mother stated: After the January 2006 domestic violence incident, mother had been placed in jail for a probation violation and then released. She had “started using methamphetamine in 2001, a couple of weeks before she met . . . father. [S]he used methamphetamine off and on when she was with . . . father and . . . they would be together for a month, and then separate for a few months, and she would clean up when he was not around and she did well without him. . . . [¶] . . . [¶] [S]he was in [a Penal Code section] 1000 [diversion program] from October 2004 until January 2005.” She was later “put on [a Proposition] 36 program.” (Pen. Code, § 1210.)
Mother told a police officer who responded to the January 2006 domestic violence call that despite a restraining order protecting her from father, she and the children had been with father at a motel because mother and father were “‘trying to work everything out.’” “Based on [the parents’] dating relationship, and [father] having the most significant injuries, [the officer] determined [mother] was the dominant aggressor” in the domestic violence incident.
The parents pleaded no contest to the allegations of the petition, as amended on February 22, 2006. In February 2006, the court found true the allegations of the amended petition, ordered family reunification services and visitation for the parents (weekly monitored visitation of two hours), and declared B.P. and J.P. to be dependent children.
The next month the children were placed at Orangewood Children’s Home after the foster parents reported B.P. “had been sexually acting out and disclosing extensive, explicit sexual knowledge.” The following month the children were placed with a “nonrelative nonguardian.”
In SSA’s July 2006 six-month review report, the social worker stated the children had been placed in a new foster home in May 2006. B.P. had adjusted well there, with “less tantrumming behavior and improved sleeping,” and J.P. was “also doing well.” B.P. “had disclosed inappropriate sexual knowledge including allegations of sexual abuse involving other relative children and adults, including her father,” against whom no criminal charges had been filed since the allegations were “inconclusive.” Mother was “incarcerated from April 26, 2006 through June 3, 2006 for violating her probation . . . after failing to make contact with her probation officer.” Later in June, mother missed a scheduled probation compliance appointment and also missed a rescheduled appointment, prompting her probation officer to state he would likely issue “a warrant for her arrest for probation violation, if she [did] not make contact.” Mother had not “continue[d] her participation [in the Perinatal Program] after the initial contact” and had “also failed to drug test.” In conclusion, the social worker recommended the children be continued as dependent children.
At the six-month review hearing, the court found continued placement of the children was necessary and appropriate.
Two months later the parents were incarcerated. Mother had suffered a probation violation.
In its January 2007 12-month review report, SSA reported mother had “participated in case plan related activities” while incarcerated. The children remained in the same foster home; the foster parents appeared able to meet the children’s needs. During visits, mother and father appeared “supporting and loving” toward the children.
At the 12-month review hearing, the court continued the case to a scheduled 18-month review hearing.
In its July 2007 18-month review report, SSA reported the children were doing well in their continuing foster placement. B.P. “stated that she would like to go live with her parents if she were able but maintains that she remains happy in her current foster home.” B.P.’s therapist reported the child “appears bonded to her foster family and has become comfortable in their care.” Mother had been released from incarceration in January 2007 and had reunited with father. In April 2007 the parents were “briefly incarcerated” for possession of controlled substance paraphernalia. Father acknowledged the parents had been using methamphetamine in the months between mother’s release from incarceration and their arrest in April. Mother was placed on probation and ordered to participate in a Proposition 36 substance abuse treatment program. Mother moved into a six-month transitional living program where she completed a parenting education program, but was terminated from the home in June “due to violating curfew on multiple occasions coupled with suspicion of use of illegal substances.” At the time of the SSA report, father was incarcerated. Mother had continuously visited the children until her “recent change in circumstances” had affected her contact with them. The social worker believed the parents loved the children and the children loved them, but the parents had not demonstrated “successful recovery from substance abuse or stability on a consistent, long-term basis during the past 18 months.” The social worker recommended that reunification services to the parents be terminated and a section 366.26 hearing (.26 hearing) be scheduled.
At the 18-month review hearing, the court ordered the termination of the parents’ reunification services and scheduled a .26 hearing for November 8, 2007.
In its October 2007 report for the .26 hearing, SSA reported the foster parents wished to adopt the children (who were then ages five and two). The prospective adoptive parents considered the girls, who had lived with them for a year and a half, “a part of their family.” The children were doing well medically, developmentally, educationally, and emotionally, and were evaluated by a Permanent Planning Assessment as likely to be adopted. B.P. had “stated that she would like to be adopted by the prospective adoptive parents[; J.P. was] too young to understand the concept of ‘adoption,’ however, she continue[d] to call the caretakers, ‘mommy’ and ‘daddy.’” B.P. had “stated to her caretakers that she wants to live with them, although she still speaks of living with her birth parents.” B.P.’s therapist noted B.P. appeared “confused about the current status of the reunification of family” and “has expressed confusion about having two families and is unsure of where she will be living permanently.” The birth “parents visit the children and have been observed as being supporting and loving toward them during the visits, however, the visits have been sporadic and inconsistent given the parent’s numerous incarcerations.” During visits, B.P. appeared more attached to mother and father than did J.P. Over the past 18 months, the birth parents had failed “to demonstrate successful recovery from substance abuse or stability on a consistent, long-term basis . . . .” The social worker concluded the benefits of the parental relationship did not outweigh the children’s need for stability and permanency, and recommended the court (1) find the children likely to be adopted and (2) terminate the parents’ parental rights.
On the date scheduled for the .26 hearing, mother petitioned the court under section 388 for the children to be placed with her under a family maintenance plan or on a 60 day trial release or, alternatively, for her reunification services to be reinstated. The court (1) reviewed the petition and mother’s attached declaration and exhibits, (2) asked mother’s counsel whether he had any further evidence to introduce at a hearing (to which counsel replied he had no more evidence and would “submit on the papers before the court”), and (3) heard argument of counsel. The court then (1) found mother’s circumstances to be changing, not changed, (2) noted the children had been with the caretakers since May 2006, and (3) found it was not in the children’s best interest to grant mother’s petition. Accordingly, the court denied mother’s request for a full hearing.
At the .26 hearing, the court found the children were likely to be adopted and needed a permanent and stable adoptive home, and the exceptions contained in section 366.26, subdivision (c)(1) did not apply. The court ordered parental rights terminated and the children placed for adoption.
DISCUSSION
Section 388 Petition
Mother contends the court abused its discretion and violated her constitutional rights by denying her section 388 petition without a hearing. She asserts her petition showed changed circumstances in that “she had changed her life and was committed to her sobriety.” She further claims that granting her petition would serve the children’s best interests because (1) they “were always asking when they could come home with her,” (2) she “was committed to her sobriety,” and (3) “she was able to provide the stability and security her daughters needed.”
Under section 388, a parent “may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change” a previous court order. “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 . . . .” (§ 388, subd. (c).) Accordingly, to succeed on a section 388 petition a petitioner must establish “by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806, italics added.) “A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent’s request.” (Ibid.) “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.” (Ibid.; see also In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)
Section 388 serves “as an ‘escape mechanism’ to ensure that new evidence may be considered before the actual, final termination of parental rights.” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506.) In this way, “[s]ection 388 is central to the constitutionality of the dependency scheme” (ibid.) and to the satisfaction of a parent’s due process rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
We review a court’s summary denial of a section 388 petition for abuse of discretion. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
In her section 388 petition, mother alleged her circumstances had changed because she was committed to sobriety, actively involved with a 12-step counselor, “living in a sober living home, maintaining visitation with [the] children, consistently testing negative, working with [her] church, and moving [her] life forward in a positive sober manner.” Mother alleged the children’s best interests would be served by granting her petition because (1) the children always asked her when they would be coming home, “which indicates that they want to come home with their mother,” and (2) she was sober and could provide the stability and security the children deserved. Mother declared, inter alia, she (1) had been sober for eight months, consistently testing negative, (2) had consistently attended Narcotics Anonymous for almost two months, (3) attended five 12-step meetings a week with her sponsor, (4) had changed her overall lifestyle and (5) resided in a sober living home that allowed the children to live with her. Mother attached seven supporting exhibits.
In discussing mother’s alleged changed circumstances, the court stated: “In looking at . . . the extent of the substance abuse problem, the court has to look at the length of time the parent engaged in drug use relative to the length of time [of] claimed sobriety. And in this particular case mother’s own moving papers . . . show[] that she has a nine year history of substance and alcohol abuse. And that’s a significant history for a 27-year-old.” In discussing the children’s best interest, the court stated: “These children have been with their current caretakers since May of 2006 . . ., [for] well over a year. They appear to be attached to the caretakers. These children are very young.”
The court did not exceed the bounds of reason by finding the best interests of the children, then ages two and five, lay in a permanent and stable home with the prospective adoptive parents. The children had lived for one and a half years with the prospective adoptive parents and were bonded to them. Mother urges us to consider the importance of strong familial bonds, relying on in In re Daijah T., supra, 83 Cal.App.4th at page 674 (Daijah T.). But there, the appellate court found the mother’s section 388 petition sufficiently alleged “the best interests of the minors would be promoted by their reunification with their siblings.” (Id. at p. 675.) The minors in Daijah T. were “very strongly bonded” to their siblings who were in the mother’s custody. (Id. at p. 674.) Here, in contrast, both girls live with the prospective adoptive parents. B.P. was more bonded with mother than was J.P. who had not lived with mother since age eight months. But even B.P., although appearing to be attached to the birth parents, expressed a desire to be adopted by the prospective adoptive parents. Furthermore, because mother’s reunification services had been terminated, a presumption existed that continued care in the prospective adoptive home was in the children’s best interests. (In re Stephanie M, supra, 7 Cal.4th at p. 317 [after reunification services are terminated, “‘the focus shifts’” to the child’s need for permanency]; In re Angel B. (2002) 97 Cal.App.4th 454, 464 [presumption applies with greater strength when the permanent plan is adoption].) Mother failed to rebut this presumption.
Because mother failed to make the requisite prima facie showing that her request served the children’s best interests, we need not address her contention she made a prima facie showing of changed circumstances. The court did not abuse its discretion by denying mother’s section 388 petition without a full hearing.
Section 366.26, Subdivision (c)(1)(B)(i) Beneficial Relationship Exception
The preferred disposition at a .26 hearing is to “[t]erminate the rights of the parent . . . and order that the child be placed for adoption . . . .” (§ 366.26, subd. (b)(1).) “[A]doption should be ordered unless exceptional circumstances exist.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) An exception to the adoption preference occurs when termination of parental rights would be detrimental to the child because the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of proof on both these prongs: (1) that visitation was regular, and (2) that the child would benefit from continuing the relationship. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
As to the second prong, In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.) articulated a test for determining whether a child would benefit from continuing the parental relationship. To succeed under this test, the parent must establish that “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.” (Id. at p. 575.) In evaluating the parent’s showing, the court must “balance[] 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 parent’s rights are not terminated.” (Ibid.) “The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond, [including] [t]he age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs . . . .” (Id. at pp. 575-576.)
“[P]leasant and cordial . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption.” (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) Similarly, “frequent and loving contact” is insufficient to establish the type of beneficial relationship “contemplated by the statute.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 (Beatrice M.).) “‘Interaction between [a] natural parent and child will always confer some incidental benefit to the child,’” but the basis of a beneficial relationship is that the parent have “occupied a parental role.” (Id. at p. 1419.) “‘While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.’” (In re Jasmin D. (2000) 78 Cal.App.4th 1339, 1350.)
On review, applying the substantial evidence test, we “accept the evidence most favorable to the order as true and discard the unfavorable evidence . . . .” (In re Casey D., supra, 70 Cal.App.4th at p. 53.) We give “the prevailing party the benefit of every reasonable inference and [resolve] all conflicts in support of the order.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) “‘Evidence sufficient to support the court’s finding “must be ‘reasonable in nature, credible, and of solid value; it must actually be “substantial” proof of the essentials which the law requires in a particular case.’”’” (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)
Mother criticizes the “benefit” definition articulated in Autumn H., questioning whether the benefits of adoption can be validly weighed against those of a continued parental relationship. Mother argues “the actual benefits of adoption versus maintaining a relationship with the natural parents is, in the end, unknowable” and cites studies showing “adoption carries with it lifelong scars, and feelings of abandonment.” In lieu of Autumn H.’s balancing test, mother proposes the following “benefit” definition: “If the relationship between the parent and child promotes the well-being of the child to the extent that severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment, the exception applies.” This proposed definition closely tracks language in Autumn H., but deletes a significant proviso: Autumn H. stated that “[i]f 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 . . . .” (Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.)
We decline to adopt mother’s proposal. As Beatrice M. stated, “‘[i]nteraction between [a] natural parent and child will always confer some incidental benefit to the child . . . .’” (Beatrice M., supra, 29 Cal.App.4th at p. 1419.) If a child’s “substantial, positive emotional attachment” to a natural parent, without more, were sufficient to constitute the “benefit” required under the beneficial relationship exception, the exception could become the norm and defeat the statutory preference for adoption. Because the exception is meant to apply only in “exceptional” cases (In re Casey D., supra, 70 Cal.App.4th at pp. 50-51), it should be interpreted in that light.
Alternatively, mother argues she met Autumn H.’s requirements for the beneficial relationship exception. But we cannot agree. The court found any benefit derived from the children’s relationship with mother was “outweighed by the benefits that would be conferred . . . from a permanent, stable adoptive home.” Substantial evidence supports this finding. At the time of the hearing, the children were only two-and five-years-old and the prospective adoptive parents had cared for them for one and a half years. The children and the prospective adoptive parents had “come to share a strong, loving bond.” The children called the prospective adoptive parents “mommy” and “daddy” and were “completely integrated as members of the family.” The children were healthy, “happy and content in the adoptive home.”
The court found mother did not play a “parental role” with the children. Mother contests this finding, arguing that B.P. wished to live with mother, and a “child simply does not yearn to live with a ‘friendly visitor.’” But B.P. also wished to live with and be adopted by her prospective adoptive parents — evidence we accept as true under the applicable standard of review. Germane to the concept of a “parental role” is the question who played “the primary parental role” and “comfort[ed] and nurture[d the children] by providing their day-to-day care.” (Beatrice M., supra, 29 Cal.App.4th at pp. 1419, 1420.) Here, this primary, daily role has been played by the adoptive parents for the last year and a half of the children’s lives.
Mother argues B.P. lived with the birth parents for the first three and a half years of her life and that mother’s subsequent visits with B.P. were “consistently positive.” But these factors do not outweigh the substantial evidence of the benefits B.P. would gain from a permanent, stable and loving adoptive home, especially when compared with B.P.’s experiences while living with mother (which included (1) B.P.’s witnessing at least one incident of domestic violence, which caused her to scream, cry, close her eyes and cover her ears, and (2) two months spent by the children in the care of relatives while mother was incarcerated). For the same reason, the numerous cases cited by mother in which the children were very young at the time of detention or in which the parent’s visits with their children were harmful and negative, do not assist her.
Because mother failed to show that the benefits the children would gain from a continued relationship with her outweighed the benefits in the adoptive home, we need not decide whether she maintained regular and constant visitation and contact with the children. Substantial evidence supported the court’s termination of mother’s parental rights as to both children.
In rendering its ruling, the court did not discuss the regular visitation and contact requirement. SSA concedes substantial evidence existed “to find either way” on this issue.
DISPOSITION
The postjudgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.