Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County, No. SJ12052B-C Ronald F. Frazier, Judge.
AARON, J.
Mother M.J. and father Ronnie J. (together, the parents) appeal the judgment terminating their parental rights to their daughters, seven-and-one-half-year-old Cecelia and six-year-old S.J. (together, the children). The parents contend that the court erred in declining to apply the beneficial relationship exception to termination of their parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)). M.J. additionally contends that the court committed reversible error by ordering that a hearing on her section 388 petition be held after the section 366.26 hearing. We affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
I
BACKGROUND
In August 2008, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions on behalf of five-and-one-half-year-old Cecelia and four-year-old S.J. The petitions alleged that between August 2007 and August 2008, Ronnie had punched the children's older half sibling, causing bruising, and M.J. had failed to protect the half sibling. The petitions also alleged that Ronnie had sexually abused the half sibling by touching her vaginal area, both over and under her clothing; entering the bathroom while she was showering; unfastening her bra; and digitally penetrating her vagina. The half sibling was between 12 and 13 years old at the time of the abuse. In 2004, there had been a substantiated report that Ronnie had physically abused the half sibling.
The children were detained in a foster home. In September, 2008, the court made true findings on the petitions and ordered the children placed in foster care. Over the next two years, Cecelia had six placements and S.J. had two placements. At the 18-month review hearing in June 2010, the court terminated the parents' reunification services and set a section 366.26 hearing. In September, Cecelia and S.J. were placed together in a prospective adoptive home.
In December 2010, on the day of the contested section 366.26 hearing, M.J. filed her section 388 petition. In her petition, M.J. requested that the court modify the order terminating services and setting the section 366.26 hearing. She requested that the court place the children with her without services or, alternatively, with services. M.J. alleged two changed circumstances in her petition: that M.J. had separated from Ronnie in September and had "remained away from [him] in a separate residence [d]espite utilizing [him] for transportation, " and that she had had regular and consistent unsupervised visits with the children, and there were no reports that she had allowed Ronnie to have contact with the children during the visits. Finally, M.J. alleged that the proposed modification was in the children's best interests because they had a strong bond with M.J.; the children had been in their placement for only a short time; and terminating parental rights would permanently damage the children and affect their ability to form healthy bonds in the future.
In September 2008, the court gave the Agency discretion to allow unsupervised visits. The Agency began allowing M.J. unsupervised visits just before the June 2, 2010, 18-month review hearing.
The court made a prima facie finding on M.J.'s section 388 petition and, over M.J.'s objection, ordered that the evidentiary hearing on the petition would trail the section 366.26 hearing. The court proceeded to hold the 366.26 hearing, terminated parental rights, and based on the termination of parental rights, found that M.J.'s section 388 petition was moot.
II
DISCUSSION
A
Although the Court Erred by Ordering That the Section 388 Hearing Trail the Section 366.26 Hearing, the Error Was Harmless
Section 388 allows the juvenile court to modify an order if a parent proves, by a preponderance of the evidence, that changed circumstances exist and that the proposed modification would promote the children's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) Where, as here, there is a request for a change of placement after reunification services have been terminated, the focus is on the children's need for permanency and stability and "there is a rebuttable presumption that continued foster care is in the best interests of the child[ren]." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) As an "escape mechanism" available after the termination of reunification services and before termination of parental rights, section 388 protects the due process rights of a parent who can show a legitimate change of circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) Conversely, "a parent whose rights have been terminated [may not] subsequently seek to attack that order by filing a... section 388 [petition]...." (In re Ronald V. (1993) 13 Cal.App.4th 1803, 1805.) With one exception that does not apply here, once the court has terminated parental rights, it has no jurisdiction to modify the judgment of termination. (§ 366.26, subd. (i); In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.)
In her section 388 petition, M.J. requested placement, which was not an option at the section 366.26 hearing. (§ 366.26, subd. (b); In re Marilyn H., supra, 5 Cal.4th at pp. 303-304, 310.) As the Agency properly concedes, the court should have held the evidentiary hearing on M.J.'s petition before proceeding to the section 366.26 hearing.
The error, however, was harmless (In re J.F. (2011) 196 Cal.App.4th 321, 336) because, we conclude, the outcome would not have been different if the court had held a hearing on M.J.'s section 388 petition before the 366.26 hearing. At the section 366.26 hearing, M.J. litigated the allegations in her petition relating to visitation, the parent-child bond, the length of time the children had been in their placement, and the effect on the children of terminating parental rights. The only allegations in M.J.'s petition that were not litigated at the section 366.26 hearing are M.J.'s separation from Ronnie, and the lack of any reports that she had allowed him to have contact with the children. Even if M.J. had proven these allegations at a hearing on her section 388 petition, she would not have prevailed on the merits.
At the beginning of this case, M.J. refused to believe that Ronnie had molested the children's half sibling. In addition, although the children also showed signs of having been sexually abused, M.J. refused to acknowledge that fact. M.J. participated in group therapy for nonprotective parents for approximately 10 months. The group's leader terminated M.J.'s participation because M.J. remained in denial. M.J. began individual therapy, but continued to minimize the risk that Ronnie posed to the children and failed to complete her course of individual therapy. By the time M.J. filed her section 388 petition, she had been saying for more than two years that she would separate from Ronnie. The evidence shows that she remained in denial and continued to minimize the risk to the children.
At a visit between the children and the parents, Cecelia, who was wearing a dress, spread her legs wide open and asked Ronnie to play with her.
B
The Court Did Not Err in Refusing to Apply the Beneficial Relationship Exception to Termination of M.J.'s and Ronnie's Parental Rights
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[t]he 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).) A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of this relationship is determined by taking into consideration "[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 p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude that there is substantial evidence to support the court's finding that the benefits of adoption outweighed any parent-child bond. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
The parents do not contest the juvenile court's finding that the children were adoptable.
The court did not expressly state whether the parents maintained regular visitation and contact with the children. The record shows that the parents visited and contacted the children regularly. Ronnie's visits were always supervised.
The children did recognize M.J. and Ronnie as their mother and father, and the children and the parents were affectionate with one another. In addition, the parents were generally appropriate during visits and their interaction with the children was positive.
However, the children had been out of the parents' care for more than two years by the time of the 366.26 hearing, and they were doing well in the prospective adoptive home, where they had lived for three months. The children were forming an attachment to prospective adoptive parents and viewed them as their parents. The prospective adoptive parents had ensured that the children continued to receive therapy. S.J. had overcome her educational and behavioral issues, and Cecelia's behavioral issues had decreased significantly.
The prospective adoptive home offered the permanence, stability and safety that the children needed. According to the social worker, the parents were still minimizing the events that led to the children's dependency and the effect of those events on the children, resulting in a continued risk. While the relationship between the parents and the children had some positive aspects, considering all of the circumstances in this case, the court could reasonably have determined that the children's need for permanence, stability and safety outweighed the benefits the children would derive from maintaining their relationship with the parents.
The parents cite In re S.B. (2008) 164 Cal.App.4th 289, in which this court concluded that the juvenile court erred in declining to apply the beneficial relationship exception. (Id. at p. 301.) In that case, the child continued to display a strong attachment to the appellant father after her removal; they "had an emotionally significant relationship" (id. at p. 298); and the father visited consistently. (Id. at pp. 293-294, 298-301.) Most significantly, unlike the parents in the instant case, the father in that case "complied with 'every aspect' of his case plan" (id. at p. 298), empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (id. at p. 298). Thus, In re S.B. is entirely distinguishable from the instant case.
There is substantial evidence to support the conclusions that the children did not have "a substantial, positive emotional attachment" to the parents of the kind that would outweigh the well-being that they would gain in a permanent, adoptive home, and that the children would not be greatly harmed by the severance of the relationship with the parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There is thus substantial evidence to support the court's finding that the beneficial relationship exception did not apply.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.
In addition to asserting that he has a beneficial relationship with the children, Ronnie appears to assert that M.J. has a beneficial relationship. We need not decide whether Ronnie has standing to assert the exception as to M.J., since we reject M.J.'s contention on that issue.