Opinion
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of San Diego County No. SJ012105, Garry G. Haehnle, Judge.
HUFFMAN, J.
M.H. and Sharonda L. appeal juvenile court orders terminating their parental rights to their son, Damon W., Jr., (Damon) and summarily denying their Welfare and Institutions Code section 388 petitions. Each parent contends the court abused its discretion by denying their section 388 petitions. Sharonda also asserts the court erred by finding the beneficial parent-child relationship exception to termination of parental rights and adoption of section 366.26, subdivision (c)(1)(B)(i), did not apply. M.H. maintains there was insufficient evidence presented to show that Daman is adoptable. He also claims the court violated his right to due process by terminating his parental rights without making a finding of parental unfitness. Each parent joins in all relevant issues raised by the other, and Sharonda asserts if M.H.'s appeal is successful, the judgment terminating her parental rights must also be reversed. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On December 2, 2008, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of one-month-old Damon on the basis of Sharonda's drug abuse and mental health issues. On January 29, 2009, the court found the allegations of the petition true, declared Damon a dependent child of the court, removed him from parental care, ordered him placed in foster care and ordered reunification services for Sharonda, including supervised visitation.
In March 2009 Sharonda identified M.H. as Damon's biological father. She said he had agreed to help her become pregnant, but did not plan to be involved with the child. Sharonda said M.H. did not believe he was Damon's father and did not want to be involved in the proceedings. The social worker called M.H.'s last known telephone number and spoke with the paternal grandmother. The grandmother said she did not have contact information for M.H., but the social worker provided her with notice to give M.H. of his status as Damon's alleged father and provided the grandmother with her contact information. At a special hearing on March 17 the court ordered the Agency to conduct a reasonable search for M.H.
In July 2009 Sharonda abruptly left San Diego to move to New York. She said she wanted to go there to be with her current boyfriend and she planned to live in a shelter that had a place for her.
On August 12, 2009, at the six-month review hearing, the court found Sharonda had not made substantive progress with her case plan. It terminated services and set a section 366.26 hearing for December 3 to select a permanent plan for Damon.
In October 2009 notice of the upcoming section 366.26 hearing was personally served on M.H. He appeared at the December 3 hearing and requested a paternity test. The court continued the hearing.
On February 4, 2010, Sharonda petitioned under section 388, asking the court to place Damon with her. She said she was employed and was clean and sober and living in a shelter in New York that allowed children. The court summarily denied her petition. Based on paternity testing, the court found M.H. to be Damon's biological father. At a special hearing on February 10, it granted M.H.'s request for appointed counsel.
Subsequently, Sharonda filed a new section 388 petition, requesting placement and alleging she was continuing to live at the shelter, was attending counseling and drug abuse treatment, and she had had clean drug tests. M.H. also filed a section 388 petition. He requested placement with family maintenance services and claimed he had completed a domestic violence treatment program and had stable housing and employment.
The court summarily denied Sharonda's and M.H.'s section 388 petitions. At a section 366.26 hearing on July 8, 2010, it considered M.H.'s testimony, Sharonda's stipulated testimony, documentary evidence and argument by counsel. It found Damon was likely to be adopted if parental rights were terminated and there had been no showing the beneficial parent-child relationship exception to termination of parental rights and adoption was present to preclude adoption. It terminated parental rights and ordered adoption as the permanent plan.
DISCUSSION
I
Sharonda and M. H. contend the court abused its discretion by denying their section 388 petitions without evidentiary hearings.
Section 388 provides in part:
"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court... 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 court previously made or to terminate the jurisdiction of the court.... [¶]... [¶]
"(d) 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...."
To obtain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. (§ 388; Cal. Rules of Court, rule 1432(a)(6); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
" ' "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." ' [Citations.]" (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) "[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing." (In re Angel B., supra, 97 Cal.App.4th at p. 461.)
Sharonda has not shown the court abused its discretion by summarily denying her section 388 petition. Damon was removed from her care on the basis of her drug and alcohol use and mental health issues, including erratic and lethargic behavior, lack of cooperation with medical staff and her statements that other people can read her thoughts. The court ordered her to have individual counseling, complete a psychological evaluation, follow up on the evaluator's recommendations, and participate in and complete parenting education and drug treatment. Sharonda's section 388 petition alleged she had completed drug abuse treatment, but it did not mention any changed circumstances regarding her mental health status. The psychologist who evaluated her in December 2008 found she had borderline intelligence. Sharonda told the evaluator she has often thought others can tell what she is thinking and that she has experienced racing thoughts. The evaluator found her to be impulsive, immature and naive and determined she had poor insight and her judgment is compromised due to her low level of maturity and impulsive behaviors. Sharonda began therapy early in the dependency case and made minimal progress, but in July 2009 she moved to New York to be with a man she had just met, selling all of her belongings, including her baby supplies, so she could buy a plane ticket. After an eight-month hiatus from therapy, she started therapy in New York in March 2010. By the time of her section 388 petition in June, her therapist reported Sharonda was at only the beginning stages of treatment, and they were establishing a therapeutic relationship and assessing her mental health issues. Sharonda did not make a prima facie showing that her mental health status had changed.
She also did not make a prima facie showing that Damon's best interests would be served by placing him with her. Her hasty decision to leave San Diego showed she continued to be impulsive and naive, and her lack of progress in therapy indicates placement with her would not be in Damon's best interests. Further, at the time of the hearing, Damon had not seen Sharonda for nearly one year except for one visit Sharonda reported having with him in February 2010. He was doing well in a home with potential adoptive parents who wanted to provide a stable home for him. The court did not abuse its discretion by summarily denying Sharonda's section 388 petition.
M.H. also has not shown an abuse of the court's discretion in denying his section 388 petitioN.M.H. knew of Damon's existence and had visited him after his birth, but he did not become involved in the dependency proceedings until one year after Damon was first made a dependent. After Sharonda identified him as Damon's biological father in March 2009, the Agency sent notice to the paternal grandmother, but M.H. did not appear in court to request paternity testing until nine months later and then he delayed filing his section 388 petition until four months after the court found him to be Damon's biological father. Weekly visitation was arranged in March 2010, but he came to only two visits that month, and then did not visit again until July, just before he filed his section 388 petition. Also, M.H. made no showing he had a stable place for Damon to live. He had not been involved in Damon's life and was not able to engage very well with Damon during the visits he attended. They interacted little and Damon had no problem separating from him when visits ended. Damon had been moved several times during the months of his dependency and badly needed the permanency of an adoptive home, which the family with whom he was living wanted to provide for him. The court did not abuse its discretion by summarily denying M.H.'s section 388 petition.
II
Sharonda asserts the court erred by finding the beneficial parent-child relationship exception of section 366.26 did not apply to preclude adoption. Her arguments have no merit. Substantial evidence supports the court's finding.
If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parents' burden to show termination of parental rights would be detrimental to the child because a specified statutory exception exists. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception." In interpreting the meaning of "benefit" in section 366.26, subdivision (c)(1)(B)(i), this court stated in In re Autumn H., supra, at page 575:
"In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean 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."
In reviewing whether there is sufficient evidence to support the trial court's finding, the appellate court reviews the evidence in the light most favorable to the trial court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Sharonda has not shown the court erred by finding the exception did not apply. After she moved to New York, she saw Damon only one time in nearly one year. Her weekly telephone calls to him do not constitute regular visitation and contact within the meaning of the statute. She also did not show their relationship was so beneficial to Damon that he would be greatly harmed by termination of her parental rights. She had not cared for him for 19 months and had almost no face-to-face contact with him after she left San Diego. The court did not err by finding Sharonda did not have a beneficial parent-child relationship with Damon that would outweigh the benefits he would gain from adoption into a permanent adoptive home.
III
M.H. contends the finding Damon was adoptable was not supported by substantial evidence. He argues Damon's medical problems, developmental delays and many moves during his dependency make him not generally adoptable, and he is not specifically adoptable because no family has expressly stated they want to adopt him. Substantial evidence supports the court's finding that Damon is likely to be adopted.
Before a court frees a child for adoption it must determine by clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child-whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (Ibid.) "On appeal, we review the factual basis for the trial court's finding of adoptability and termination of parental rights for substantial evidence." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The finding Damon is specifically adoptable is supported by the social worker's report that he was placed in an approved prospective adoptive home on May 28, 2010, was doing well there, and this family wanted to provide him with a loving and stable home. Substantial evidence also supports the finding he is generally adoptable. The social worker reported there were several approved adoptive families in San Diego County and numerous other families outside of the county who were interested in adopting a child with his characteristics. She described Damon as adoptable and said he was young, happy and affectionate and in overall good health. He had an enzyme deficiency condition, but it required minimal attention, only that he take extra folic acid and not eat certain foods or take specific medications. A developmental evaluation in January 2010 showed he has normal development in the average range. Damon, unfortunately, had experienced multiple placements during the months of his dependency, but he showed he was resilient and could bond with new caregivers. In December 2009 he was described by his caregivers as friendly and charming. M.H.'s argument that Damon is a special needs child for whom it will be difficult to find an adoptive family is not supported by the record.
IV
M.H. asserts the court violated his right to due process when it terminated his parental rights without first making a finding of parental unfitness. M.H. forfeited this argument by not raising it in the juvenile court.
"A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) A "reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] [¶]... [¶] Dependency matters are not exempt from this rule." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Forfeiture applies to claims of statutory error and to claims of violations of fundamental constitutional rights. (In re Seaton (2004) 34 Cal.4th 193, 198.) M.H. did not bring this issue to the juvenile court's attention. He has thus forfeited it as an issue on appeal.
Moreover, as a mere biological father, M.H. had no due process right to a finding of parental unfitness.
"California dependency law distinguishes between a presumed father, a biological father and a biological father who came forward early in the case and displayed a full commitment to the child. [Citations.] This court has consistently held that a biological father's rights are limited to establishing his right to presumed father status, and the court does not err by terminating a biological father's parental rights when he has had the opportunity to show presumed father status and has not done so." (In re A.S. (2009) 180 Cal.App.4th 351, 362.)
Presumed fathers have greater rights than biological fathers. (In re A.S., supra, 180 Cal.App.4th at p. 359.) " '[A] biological father's "desire to establish a personal relationship with [his] child, without more, is not a fundamental liberty interest protected by the due process clause.'' [Citation].' " (Ibid.) Presumed fathers are entitled to a finding of detriment or parental unfitness before termination of parental rights. (In re Gladys L. (2006) 141 Cal.App.4th 845, 848; In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.) A court may terminate parental rights of an alleged father and a biological father, however, based on a standard of the child's best interests. (In re A.S., supra, at pp. 362-363.) M.H. delayed for many months before becoming involved in Damon's life and made very little effort to establish a relationship with him. The court properly based the order terminating his parental rights on Damon's best interests. M.H., as Damon's biological father, was not entitled to a finding of parental unfitness.
DISPOSITION
The orders are affirmed.
WE CONCUR: McCONNELL, P. J., BENKE, J.