Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Ct. No. SWJ005518. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
M. Elizabeth Handy and Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, J.
Colleen F., mother, appeals from an order summarily denying her petition to modify a prior court order (Welf. & Inst. Code, § 388), and from the subsequent judgment terminating her parental rights to three children. (§ 366.26.) Regarding the modification petition, mother claims she met her burden of demonstrating changed circumstances by providing a recent psychological evaluation showing she had improved, as well as proof she was continuing with substance abuse after care and counseling. Regarding the termination of parental rights, mother argues she visited regularly and the children would have benefitted from continuing their relationship with her. We disagree.
Except where otherwise indicated, all references are to the Welfare and Institutions Code.
BACKGROUND
In March 2006, mother was temporarily hospitalized for an involuntary mental status evaluation. (§ 5150, et seq.) She had contacted the police because of a fight with the father (not a party to this appeal), but when the police arrived they observed bizarre behavior, including: barking like a dog, making incoherent statements, threatening the police, and stating her children were possessed by demons and were from hell. The residence was in deplorable condition, the children were filthy and had been neglected. The father was intoxicated and unable to care for the children. The Department of Public Social Services (DPSS) detained the children. This was not mother’s first involuntary hospitalization.
A dependency petition was filed alleging neglect and inability to provide regular care due to mental illness (§ 300, subd. (b)), and failure to provide for support. (§ 300, subd. (g).) The juvenile court sustained the petition on April 26, 2006, declared the children dependents, removed them from parents’ custody, and placed them in the home of the current caretakers, who had been foster parents to the children during a prior dependency. During the reunification period, mother attended an Alternatives to Domestic Violence program, submitted to random drug testing, participated in a substance abuse program (which she stopped and started twice), maintained an adequate apartment, and visited regularly.
However, the mental health component of the reunification plan was not met. She did not fully cooperate with psychological evaluations, and when she did cooperate, she was unable to recall her life history. She received social security benefits but either did not recall, or refused to explain, or gave inconsistent explanations of the reason she received them. She was terminated from the dual diagnosis program because she would not disclose her previous mental health history. She was vague about the reasons for, or the number of, her several involuntary mental health hospitalizations. She denied having any mental health problems. Finally, she was unwilling to take medication.
On August 1, 2007, at the 12-month review hearing, the court terminated reunification services and set a hearing to select and implement a permanent plan. (§ 366.26.) Mother challenged this decision by way of a petition for extraordinary writ (case No. E043776), on the ground the termination of services was error because there was a substantial probability the children would be returned due to her substantive progress on her case plan. The writ was denied on November 2, 2007.
On November 28, 2007, mother’s counsel requested, with mother’s agreement, the appointment of a guardian ad litem. On January 25, 2008, mother filed a petition to modify the previous court order terminating services. (§ 388.) The petition alleged there were changed circumstances because a recent psychological evaluation concluded mother had demonstrated “certain improvement,” she would likely be receptive to reunification services, and she was attending counseling provided by the Department of Mental Health. The petition was denied without an evidentiary hearing.
On January 31, 2008, the court conducted a contested hearing to select and implement a permanent plan for the children. Mother was represented by a guardian ad litem at the hearing, along with her attorney. Although mother was present in the courthouse, she did not come into the courtroom.
Prior to hearing evidence relating to the permanency planning hearing, mother’s counsel requested that the court reconsider the denial of the section 388 petition, arguing the merits of the petition. After considering the arguments of counsel, the court again denied the section 388 petition. Regarding the selection and implementation of a permanent plan, the parties stipulated that all three children would testify that they understood what adoption is and wanted to be adopted by their current caretakers. The court found by clear and convincing evidence the likelihood that the children would be adopted and terminated parental rights. Mother appeals.
DISCUSSION
1. The Court Did Not Abuse Its Discretion In Summarily Denying the Modification Petition.
Section 388 provides a juvenile court order may be changed, modified or set aside if the petitioner establishes 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 Stephanie M. (1994) 7 Cal.4th 295, 316-317.) The parent bears the burden of meeting both prongs. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The court holds a full evidentiary hearing on the section 388 petition only if the court finds the allegations of the petition constitute a prima facie showing of both the change of circumstances and best interests factors. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
If the allegations do not show changed circumstances or new evidence that the child’s best interests will be promoted by the proposed change of order, the court need not hold a hearing. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) We review the denial of a petition to modify a prior order (§ 388) for an abuse of discretion. (In re Aaron R. (2005) 130 Cal.App.4th 697, 703.)
a. Changed Circumstances Prong.
Mother’s petition alleges modification was warranted by an addendum report by the psychologist showing “certain improvement”, and reports of her continuation in substance abuse after care and counseling. However, the psychologist’s evaluation was only that mother’s “presentation” showed “certain improvement,” not that her mental illness had improved. Because mother’s mental instability was the warp thread on which this case was woven, mother’s refusal to admit she needed treatment caused the unraveling of any chance she might have at reinstating services.
Mother’s mental illness has required numerous involuntary hospitalizations and warranted the appointment of a guardian ad litem. We cannot adequately emphasize the significance of the appointment of a guardian ad litem on mother’s ability to reunify. The appointment of a guardian ad litem is warranted when a minor, an incompetent person, or a person for whom a conservator has been appointed is a party to an action. (See Code Civ. Proc., § 372, subd. (a).) The continued involvement of the guardian ad litem, which has never been challenged by mother, raises a presumption that mother was incompetent, which has not been disputed, and remained so at the time of filing the section 388 petition and subsequent hearings.
There was no prima facie showing of a “genuine change of circumstances” (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348)which would warrant the requested modification sufficient to trigger an evidentiary hearing.
b. Best Interest Prong.
In addition to demonstrating changed circumstances, the burden is on the mother to show that the proposed modification would be in the children’s best interests in order to prevail on her section 388 petition. (In re Casey D., supra, 70 Cal.App.4th at p. 48.) Mother’s petition alleged the children have maintained a strong bond with mother and that two of the children had expressed a desire to return home to the mother.
However, after termination of services, the focus shifts from the parent’s custodial interest. (In re Amber M. (2002) 103 Cal.App.4th 681, 685.) For this reason, after services have been terminated, there is no longer a presumption favoring the maintenance of familial bonds. Instead, at this point, there is a rebuttable presumption that continued foster care is in the children’s best interests. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 448.)
Although the children enjoyed visits with mother, and expressed love for her, all three preferred to remain in the prospective adoptive home, contrary to mother’s assertion they wish to return to her custody. In any event, the children’s bond with the mother cannot be the sole basis for a best interest finding. (In re William B. (2008) 163 Cal.App.4th 1220, 1229.) Additionally, because of mother’s longstanding mental illness, it is unlikely that further reunification services would have a likelihood of success. “[A]t least part of the best interest analysis must be a finding that further reunification services have a likelihood of success.” (Id. at p. 1228.) Here, despite her current motivation, she was still represented by a guardian ad litem at the time of the hearing, indicating she was still incompetent.
Mother has not made a prima facie showing that modification of the prior court order would serve the children’s best interests sufficient to warrant an evidentiary hearing.
2. Substantial Evidence Supports the Court’s Judgment Terminating Parental Rights.
To overcome the preference for adoption and to avoid termination of parental rights, the parent has the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. (In re Angel B. (2002) 97 Cal.App.4th 454, 466; see also In re Aaliyah R., supra, 136 Cal.App.4th at p. 449.) This requires the parent to prove that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (Ibid.)
In deciding whether the exception applies, the juvenile court must balance the strength and quality of the natural parent-child relationship against the security and sense of belonging that a new family would confer. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Because the contention that there is insufficient evidence to support the court’s finding that the exception to adoptability was not established, we apply the substantial evidence standard of review. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorable to the juvenile court’s order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
The record does show mother visited regularly and the children enjoyed the visits. It is also true that mother raised the children for a substantial portion of their lives. However, even if we assume mother had regular contact with the children and the contact was positive, we cannot ignore mother’s mental illness and the fact that all three children, all old enough to understand the concept of adoption, expressed the preference to remain in their placement and a desire to be adopted. Thus, the security and sense of belonging that adoption would confer outweighs the strength and quality of the parent-child relationship in this case.
We conclude that substantial evidence supports the court’s findings that the children are adoptable and that mother failed to establish the existence of a beneficial parent-child relationship.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., Hollenhorst, J.