Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County Super. Ct. No. DP011370, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
FYBEL, J.
Introduction
Timothy N. appeals from an order terminating his parental rights over his son, Connor N., now four years old. We affirm.
Connor was removed from his parents’ care and custody when he was 11 months old. Connor was returned to Timothy’s care 14 months later under a plan of family maintenance services. Connor was again removed from Timothy’s care less than one year later due to Timothy’s unresolved mental health and substance abuse problems, and his failure to comply with his case plan. Although Timothy was denied reunification services, he entered into a stipulation with the Orange County Social Services Agency (SSA), under which Timothy’s various services would all be funded and Connor would remain in foster care locally, only so long as Timothy complied with certain conditions, including having no positive drug test results. Timothy agreed that if he failed to comply, funding for the services would cease and Connor could be placed with his maternal grandmother in Illinois. (The maternal grandmother had adopted Connor’s half sister, and had expressed a desire to adopt Connor, as well.)
In June 2007, Timothy’s drug test results were positive for methamphetamine and amphetamine, causing SSA to request Connor be placed with his maternal grandmother. Timothy filed a petition under section 388 of the Welfare and Institutions Code. (All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.) Timothy attached to the petition the results of a hair follicle test which was negative for drug use. The juvenile court summarily denied the section 388 petition. We find no abuse of discretion in the juvenile court’s decision.
We also conclude there was substantial evidence supporting the juvenile court’s findings that Connor was adoptable (§ 366.26, subd. (c)(1)), and that the parent-child relationship exception did not apply (§ 366.26, subd. (c)(1)(A)). Connor was an attractive, good-natured child, whose maternal grandmother had expressed a desire to adopt him. Although Connor did have some speech delays and had demonstrated behavioral problems, his problems were lessening. There was substantial evidence supporting the court’s finding that the relationship between Timothy and Connor did not promote Connor’s well-being to such a degree that it outweighed the benefit Connor would gain in a permanent home with his maternal grandmother.
Effective January 1, 2008, section 366.26 was amended. (Stats. 2007, ch. 583, § 28.5.) The amendment redesignated section 366.26, former subdivision (c)(1)(A) as (c)(1)(B)(i). This case was decided under the former version of the statute, so we refer to that version in this opinion.
Statement of Facts and Procedural History
In February 2005, Connor and his half sister Paige C. were taken into protective custody by SSA; Connor was then 11 months old. SSA filed a juvenile dependency petition under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (c) (serious emotional damage), and (g) (no provision for support). SSA alleged Timothy had violated Penal Code sections 243, subdivision (e)(1) (spousal battery), and 273d, subdivision (a) (inflicting injury upon a child), stemming from an incident in which Timothy grabbed Connor and Paige’s mother, N.C. , by the throat, punched her, and pushed her on the bed, all in the presence of Connor and Paige, and another incident in which Timothy slapped Paige on the mouth. SSA also alleged N.C. had violated Penal Code section 273a, subdivision (a) by pushing Paige to the ground, causing a fracture of her nose. N.C. had also left the children unattended and had repeatedly failed to send Paige to school. Timothy was granted monitored visitation with Connor.
Timothy and N.C. pleaded no contest to the dependency petition. At the 18-month review hearing, Connor was returned to Timothy’s custody under a plan of family maintenance services.
At the Regional Center of Orange County, Connor received speech therapy and services for maintaining attention, focusing, and motor skills development. The therapists with whom Connor worked noted he was making good progress. Connor’s daycare staff also noted he seemed better able to express himself, leading to less frustration and a more even temper on his part. Timothy did not perform his case plan; he failed to complete a batterer’s intervention program, failed to take advantage of a referral to an anger management program, failed to undergo random drug testing, and failed to cooperate with SSA.
In March 2007, a child abuse report was received regarding Timothy; Connor was again taken into custody and a supplemental juvenile dependency petition was filed. The supplemental petition alleged Timothy had abused illegal substances, including, but not limited to, methamphetamine. His unresolved substance abuse problem negatively affected his ability to care for, supervise, and protect Connor. Timothy also had an unresolved mental health issue. He had failed to comply with his case plan requirements, and had permitted N.C. to contact Connor and pick him up from daycare, despite a juvenile court order that all contact between N.C. and Connor must be supervised by SSA. When he was detained, Connor had multiple bruises, blisters, and scratches on his face, chest, arms, legs, and feet, and had severe diaper rash. On March 7, 2007, SSA had requested Timothy to submit to a random drug test; he initially refused to test, and then refused to allow the results to be released to SSA. Timothy had also called Paige that day and threatened to kill N.C.
Connor, who was then almost three years old, was noted to be closer socially and developmentally to an 18 month old. He had significant delays in speech, but did not suffer from significant behavioral problems. Connor did well with other children, and referred to all adults as “‘mom’” and “‘dad.’”
Timothy missed five scheduled visits in March and April 2007, and was late for three others. Timothy’s behavior at visits was generally appropriate, although he often talked about how Connor was taken away from him without justification.
At a detention hearing, the juvenile court again removed Connor from Timothy’s care and custody, and ordered Timothy to have monitored visitation. Connor had been placed in foster care. An Interstate Compact on Placement of Children (I.C.P.C.) was initiated to place Connor with his maternal grandmother in Illinois; Paige had been adopted by the maternal grandmother.
On April 23, 2007, SSA and Timothy entered into a stipulation, which was filed with the juvenile court. Under the terms of the stipulation, Timothy was not provided reunification services, but received monitored visitation, and funding to participate in anger management and domestic violence programs, individual counseling, drug treatment, and drug and alcohol testing. SSA agreed to place Connor locally in foster care rather than place him with his maternal grandmother. Timothy agreed to plead no contest to the allegations in the supplemental petition; to have no positive, diluted, or missed drug tests; and to miss no appointments with SSA or visits with Connor. If Timothy failed to abide by those conditions, funding would cease; Connor could be placed out of state, if appropriate; and Timothy’s visits with Connor would be reduced to one per month. The juvenile court made orders pursuant to the stipulation and set a hearing under section 366.26 to determine Connor’s permanent plan.
On April 24, 2007, SSA reported it had received a toxicology report that Timothy’s drug patch, which had been applied on April 5 and removed on April 11, was positive for amphetamine and methamphetamine. The director of the lab that performed the test advised SSA, “‘[i]t could have been residual methamphetamine from before the patch was applied or the day the patch was taken off.’” (The April test was not relied on by SSA as a basis for its later ex parte application.)
On June 27, 2007, SSA received test results showing Timothy tested positive for amphetamine and methamphetamine on June 21. Timothy denied taking any drugs and asked that he be retested using a different testing method. On July 11, the director of the lab that performed the patch test confirmed the test results showed methamphetamine had been ingested.
On July 18, 2007, SSA brought an ex parte application to decrease Timothy’s visitation to one two-hour visit per month and to place Connor with his maternal grandmother as soon as possible, pursuant to the April 23 stipulation. Timothy then filed a section 388 petition requesting the juvenile court to “[f]ind that the father has an excused positive drug patch test and order that the conditions of the funding of services, visitation and placement be reinstated pursuant to the court’s order.” Timothy submitted results of a hair follicle drug test, which showed negative for drugs; the follicle had been collected on July 10 for testing.
At the hearing on SSA’s ex parte application and Timothy’s section 388 petition, Timothy’s counsel admitted that no qualified expert was prepared to testify the drug patch test results were inaccurate. As the juvenile court noted, the results of the hair follicle test did not disprove the accuracy of the earlier patch test: “[W]hat you have before me isn’t evidence that it was a mistake. Merely that now he’s testing clean. So far, that doesn’t, necessarily, show that the patch was a mistake.” The court also noted: “It is interesting that it does appear that the quid pro quo was that had we proceeded according to the way things were going, the agency would have fully had the opportunity to have the child placed in Illinois [with the maternal grandmother] back when the I.C.P.C. was approved, and they gave up their right to do that in exchange for father’s good conduct and not testing positive and be provided services, and so forth. [¶] Dad got the benefit of that part of the bargain, and now, when he has received a positive test, he doesn’t want the agreement to go into effect, despite the fact that he’s enjoyed the benefits of his bargain up until now. [¶] I can’t find anything compelling to make me believe that it’s appropriate to interfere with that at this time, counsel. Apparently, this is pursuant to the agreement that everyone entered into. This request to change the court order . . . fails to indicate that there is some real reason to believe that the original test was not accurate, but also fails to establish that to . . . grant the relief he’s requesting is necessary and is in the child’s best interest.”
The juvenile court denied the section 388 petition without a hearing; the court concluded Timothy had failed to make a prima facie showing of a change in circumstances or of new evidence, or that the relief requested was in Connor’s best interests. The court granted SSA’s ex parte application.
In its permanency hearing report, SSA reported that on August 3, 2007, Connor was placed with his maternal grandmother in Illinois; he did well in his new placement. Connor was reported to be a charming and very cute three-and-a-half-year-old boy. He had blond hair, blue eyes, and fair skin. Connor loved individual attention from adults, and playing on the playground and in water. He had a history of screaming and temper tantrums; those behaviors, however, had decreased in frequency and duration. Connor was developmentally delayed for his age; his cognition, motor skills, speech, and developmental and emotional abilities were closer to those of a child between two and two and one-half years of age. Connor’s gross motor skills and balance had improved since he had been placed in foster care, and he was in the process of toilet training. He was reported to have “attachment potential,” especially with loving, attentive caregiving. Paige was very excited that Connor would be living with her. Connor’s maternal grandmother wanted to adopt Connor.
At the permanency hearing, SSA’s report was admitted into evidence. Mark Shugarman, the social worker formerly assigned to the case, testified Timothy did not attend all the regional center appointments regarding Connor’s care. Shugarman had been concerned that Timothy had been under the influence of drugs at points during the family maintenance period, while Connor was in Timothy’s care. Shugarman had also been concerned that Timothy was not taking Connor to speech therapy, that the home was only marginally clean, and that Timothy had caused Connor to fall face down on the floor. Shugarman testified that when he was present, there was little interaction between Timothy and Connor: “The child seemed fairly independent to me and I didn’t get a sense of closeness.”
Shugarman also testified he had heard numerous voicemail messages left by Timothy for N.C. , which Shugarman described as mostly angry and threatening, with some being “completely unintelligible.” Timothy had circulated posters containing pictures of Connor, excerpts from the juvenile dependency petition, and a statement reading, “[w]e have since resolved allegation, so N[.C.] can be with her two children,” at a time when N.C. was not authorized to be in the home and only had monitored visitation with Connor.
Social worker Teresa Stevens testified Connor was adoptable. In reaching this conclusion, she took into account Connor’s history of temper tantrums and head banging. She testified these behaviors had diminished in intensity and frequency since Connor was taken from Timothy’s care, and were continuing to improve. Connor did have a diagnosis of adjustment disorder, but Stevens testified that was common in dependent children who live in many different homes. Stevens had spoken with the maternal grandmother three or four times since Connor was placed with her. The maternal grandmother had told Stevens that Connor was doing well, and had had no problems with head banging, biting or other behavioral concerns. Connor was placed in “time-out” for biting Paige on three occasions, but the maternal grandmother stated he had responded well to the discipline. Stevens testified the social worker in Illinois would be going to the home every month; so far, she had had no concerns.
Stevens admitted Timothy and Connor had a relationship, but stated, “his father showed him fun at the park and love, and food, and they enjoyed their visits very much, so – and the father did comfort him when he cried. And in that sense, there was a bond at the visits, during the visits, you know, but it’s not necessarily a healthy bond for Connor.” Stevens felt that Timothy’s actions and judgment harmed Connor, specifically Timothy’s use of drugs and threatening to harm N.C. , SSA personnel, and the maternal grandmother. Stevens testified the following documented actions by Timothy were not in Connor’s best interests: telling Connor, “let’s leave, Connor. Nobody can keep you here”; telling Connor to put on boxing gloves because “[w]e need to go beat up your social worker”; calling Paige and threatening to kill N.C. ; taking drugs and failing to randomly drug test as required by the case plan; failing to complete the batterer’s treatment program; failing to attend meetings necessary to transition Connor’s speech therapy; and having unresolved substance abuse and mental health problems. Stevens testified that the visitation between Connor and Timothy did not benefit Connor, and it would not be detrimental to Connor to sever his relationship with Timothy.
Timothy testified Connor had been in his care from birth until he was removed by SSA in 2005, and Connor referred to him as “[d]addy.” Timothy denied ever being under the influence of drugs during a visit with Connor. Timothy claimed the patch test was positive because he rubbed up against boxes in his garage containing N.C. ’s old clothes. Timothy said his behavior that might be indicative of drug use – rapid, unintelligible speech, pacing, etc. – was due to attention deficit hyperactivity disorder, which had never been diagnosed by a doctor, and for which he was not prescribed any medication. Timothy admitted contacting the United States Marshals office in Illinois to have Connor brought back to California after he was placed with the maternal grandmother.
Timothy acknowledged it was detrimental to Connor if Timothy missed scheduled visits. Timothy denied missing any visits since March 2007, but then admitted missing a visit on March 14. Timothy also admitted missing an appointment at the regional center regarding Connor, but claimed he was given two different appointment times.
Timothy testified it was in Connor’s best interests to maintain visitation because “we have a good bond going. I understand that child. I’ve known him since birth.” Timothy believed Connor would have more behavior problems if they were not allowed to see each other. Timothy also believed terminating his parental rights would be detrimental to Connor “[b]ecause I’m all he’s ever known. I’m the only constant in his life.”
The juvenile court found Connor to be adoptable because the “description of the child, from the social workers, certainly indicate[s] that he’s an attractive little boy who is very engaging. He seeks out adult companionship and approval. . . . [¶] And while he does have some speech delays, apparently, he’s making progress along those lines. It’s clear to the court that Connor is an adoptable little boy, and certainly, his age, as well, goes into that. In addition to that, we have a relative . . . who has . . . continuously expressed an interest in the child and who has indicated a desire to adopt the child.” The court also found Timothy had failed to prove either prong of the section 366.26, subdivision (c)(1)(A) parent-child relationship exception to adoption. The juvenile court therefore terminated Timothy’s parental rights. Timothy timely appealed.
Discussion
I.
Section 388 Petition
Timothy contends the juvenile court abused its discretion by summarily denying his section 388 petition. “The parent seeking modification [via a section 388 petition] must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
“A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Evidence that merely shows a parent is beginning on the road to recovery from his or her relevant problems is not sufficient to warrant a hearing. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610 [parent’s initiation of drug rehabilitation is not a changed circumstance sufficient to warrant a section 388 hearing].)
We apply the abuse of discretion standard in our review of the juvenile court’s decision to deny the section 388 petition without a hearing. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We may not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) We affirm the order unless it “‘“exceeded the bounds of reason. 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 Brittany K., supra, 127 Cal.App.4th at p. 1505.) The juvenile court’s decision will not be disturbed “‘“unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.”’” (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
We find no abuse of discretion by the juvenile court. Timothy failed to make a prima facie showing that the positive test result was incorrect. The parties’ stipulation was clear – any positive test would negate SSA’s agreement to keep Connor in a local foster care placement, and would allow for Connor’s placement in Illinois with the maternal grandmother. Timothy’s petition did not present prima facie evidence that the patch test results were wrong; it showed at most that the hair follicle test did not detect any drugs in Timothy’s system at the time that test was performed (approximately 19 days after the positive patch test results).
II.
Likelihood of Adoption
“‘The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile court’s order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]’ [Citations.] We give the court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)
Connor was described as a charming, attractive child. His maternal grandmother wanted to adopt him. Connor’s behavioral problems appeared to be decreasing, and the prospective adoptive parent had expressed a willingness to do whatever was needed to deal with any continuing problems. There was more than substantial evidence supporting the juvenile court’s finding that Connor was adoptable.
III.
Parent-child Relationship Exception
Timothy contends the juvenile court erred by failing to find the parent-child relationship exception to the termination of parental rights applicable. Section 366.26, subdivision (c)(1)(A) allows the juvenile court to decline to terminate parental rights over an adoptable child if it finds “a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” Timothy had the burden of proving both prongs of the parent-child relationship exception were satisfied. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 949.) We consider whether substantial evidence supported the juvenile court’s determination the exception did not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
In In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, the appellate court acknowledged that courts have “routinely applied the substantial evidence test to the juvenile court’s finding under section 366.26, subdivision (c)(1)(A).” The appellate court in In re Jasmine D. stated that the abuse of discretion standard is a more appropriate standard even though “[t]he practical differences between the two standards of review are not significant.” (Ibid.) In this case, Timothy’s argument fails for the same reasons under either standard.
Assuming for purposes of this appeal that Timothy’s visitation was regular (despite a number of missed visits during the early part of the dependency period), we conclude there was substantial evidence supporting the juvenile court’s finding that Connor would not benefit from continuing his relationship with Timothy. For the parent-child relationship exception to apply, the parent must do more than occupy a “pleasant place” in the child’s life. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) To the contrary, the parent must establish the existence of a “substantial, positive emotional attachment such that the child would be greatly harmed” if that bond were severed. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Timothy did not make such a showing in this case. Although Timothy acted appropriately during visitation, and there was a bond between him and Connor, the bond was not a healthy one. Timothy’s behavior continued to be erratic; he called Connor’s then 10-year-old half sister and threatened to kill N.C. After pleading no contest to allegations he abused both N.C. and Paige, and also pleading no contest to allegations he threatened N.C. , Timothy failed to complete his batterer’s intervention program, and suggested to Connor that he beat up his social worker. Connor’s behavioral problems showed improvement after he was removed from Timothy’s care and placed with a foster family. Although Connor seemed attached to Timothy during visits, the evidence showed he tended to gravitate to anyone who would show him attention, and referred to many adults as mom or dad. Finally, Connor’s permanent placement was to be with his maternal grandmother, who could provide him with a stable home, in which his half sister was already living permanently.
Disposition
The order is affirmed.
WE CONCUR:
SILLS, P. J., MOORE, J.