Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. DP011979 John Gastelum, Judge.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
BEDSWORTH, J.
Laura R. appeals from a postjudgment order that terminated parental rights to her daughter, Debbie R., pursuant to Welfare and Institutions Code section 366.26. She argues an evidentiary hearing should have been held on a modification petition, evidentiary errors were made, and the evidence does not support a finding that Debbie would not benefit from continuing the parent-child relationship. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTS
Debbie was born in Los Angeles in March 2005. Both she and Laura tested positive for cocaine, and Laura admitted to a social worker that she had used the drug throughout her pregnancy. The Los Angeles Department of Children and Family Services detained the child and filed a dependency petition that alleged Laura was unable to care for Debbie due to substance abuse. (§ 300, subd. (b).)
The petition was sustained in June 2005. Debbie was removed from parental custody and reunification services were ordered. Laura’s service plan called for her to enroll in an in-patient substance abuse program, participate in substance abuse counseling, drug test twice a week, and attend a 12-step program twice a week, among other things. By this time, Laura had entered a substance abuse program in Santa Ana, so the case was transferred to the Orange County Superior Court.
In 2006, Laura tested positive for cocaine (January), methamphetamine (June), and amphetamine (June). She had two diluted tests (October) along with three where there was insufficient volume to test (November – December).
The 18-month review was held on April 30, 2007. The Orange County Social Services Agency (SSA) reported Laura had not satisfied the requirements of her case plan and recommended that services be terminated. Laura did not contest the recommendation and stipulated to the termination of services.
SSA reported Laura admitted to a social worker that she had tried to scam the drug testing program. She would stay clean from Monday to Thursday, test that morning, “do drugs and drink that night,” then go dancing and partying over the weekend to clear the drugs from her system so she could test clean again on Monday. But she claimed to have stopped using drugs in June 2006. The social worker reported Laura’s plan had been amended to require her to attend the 12-step program daily, but she failed to do so until late October 2006.
Laura said she had a job cleaning houses but offered nothing to support the claim, nor did she have stable housing until moving in with a boyfriend in February 2007. Laura was then 20 weeks pregnant. She told a social worker “she has received a lot of support from her boyfriend that has helped her maintain sobriety since her last relapse.” She began a drug patch testing program in February 2007.
Laura’s visits with Debbie generally went well, but SSA reported she “usually arrives fifteen to twenty minutes late,” and when she missed visits, Laura failed to contact either the caretaker or SSA that day as required. She had eight hours visitation a month, but regularly missed one to two visits per month between October 2006 and April 2007. After five missed visits, SSA terminated transportation service to the caretakers, but it later reinstated the service. When given unmonitored visitation, Laura had an older daughter drive her to the caretaker’s to pick up the child, ignoring repeated warnings that anyone driving the child had to submit to a criminal background check and provide a copy of their driver’s license and insurance. The juvenile court terminated reunification services and set a permanency planning hearing.
In October 2007, Laura signed a modification petition that requested return of Debbie or, alternatively, further reunification services. In an accompanying declaration, Laura claimed to have been sober since July 2006. She said she had enrolled in a drug patch program in February 2007, attended 12-step meetings several times a week, and “I continue to maintain this commitment to my recovery and sobriety so that I may be a healthier [and] better person for myself and therefore a better parent to my daughter Debbie . . . .” Laura declared she gave birth to a son, Joshua, on July 31, 2007. Both tested negative for drugs. Laura said she had a safe and clean home with a bed for Debbie, and she had addressed various safety concerns expressed by a social worker who had visited the home.
The petition was considered in conjunction with the permanency planning hearing held on November 15, 2007. SSA reported Laura had a history of poor attendance at the 12 step program, constantly needing to be reminded to attend and showing no sense of urgency in getting on with her recovery. The assigned social worker reported on two visits to Laura’s home. She said Laura shared a one bedroom apartment with her boyfriend, newborn Joshua, and a tenant who rented “the back closet [that] was converted to a bedroom.” The tenant had not submitted to a criminal record check even though a social worker several times told Laura this was necessary. Laura did not have a toddler bed for Debbie, and the social worker was concerned about the risk of suffocation if the child slept in the bed with Laura. Nor had Laura done anything about unsafe conditions previously pointed out by a social worker – a large television precariously balanced on a small table and a propane tank in the kitchen hooked up to the stove.
The juvenile court denied the petition for lack of evidence of changed circumstances or benefit to the child. It expressed “grave doubts about . . . the mother’s sobriety . . . [given her] damaging admissions . . . about basically manipulating the system earlier.” It found there was no prima facie showing Laura could provide a safe home for Debbie – the tenant still had not undergone a criminal record check and nothing had been done about sleeping arrangements, the television, or the propane tank.
SSA went on to report Laura had not taken full advantage of visitation. She regularly attended monitored visits (4 hours per week), but usually cut short unmonitored visits (an additional 4 hours per week). When offered the chance to make up this time, Laura “indicates to the caretaker that it is not necessary and does not take advantage of the time given.” Laura also repeatedly ignored warnings from the caretaker and social worker about transportation for the child – Laura now was driving herself to the caretakers, and she would drive off with the child during unmonitored visitation, even though she did not have a driver’s license.
The assigned social worker testified about Laura’s visits. After Joshua was born, she brought the baby along, and the caretaker reported Debbie “gets excited when she knows the baby is coming to see her” and “she gets excited when she sees the baby.” On cross-examination, counsel for Laura asked if any efforts had been made to arrange visits between Debbie and Joshua. Minor’s counsel objected, saying the question was not relevant. Asked for an offer of proof, Laura’s counsel replied: “If it’s a sibling of the minor, just if there were any efforts made to set up those visits[].” The court sustained the objection.
Laura testified as well. She said Debbie was happy to see her when she visited, greeting her with a kiss and calling her “mama.” Laura would bring food for Debbie, play with her, read stories and sing songs, comb the child’s hair, do her laundry, and discipline her when necessary. As the visits were ending, Debbie was reluctant to see Laura leave, one time hiding behind her legs until Laura told her she had to go and took her by the hand to the caretaker. Laura was asked by her attorney how Debbie and Joshua interacted during the visits, but minor’s counsel objected to the question as irrelevant, and the juvenile court sustained the objection.
The juvenile court found it was likely the child would be adopted and none of the exceptions to termination of parental rights applied. On the benefit exception (§ 366.26, subd. (c)(1)(B)(i)), the court found no regular visitation because Laura failed to take advantage of all visitation offered, and no significant parent-child relationship that, if terminated, would greatly harm the child. As the court put it, “the relationship is more of a fun, friendly visitor type of relationship as opposed to a parent-child relationship . . . .” As to the sibling exception (§ 366.26, subd. (c)(1)(B)(v)), the court found there was no evidence of a bond between Debbie and newborn Joshua (then three months old) such that Debbie would be harmed if the relationship were severed. Parental rights were terminated and the court ordered the child placed for adoption.
I
Laura argues she was entitled to a hearing on the modification petition because she offered evidence of a prima facie case of changed circumstances. We do not see it that way.
A parent may petition to modify a prior order by showing changed circumstances or new evidence (§ 388) and making an additional showing the modification would be in the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) An evidentiary hearing must be held if the parent presents a prima facie case. (Ibid.)
No prima facie showing of changed circumstances was made in this case. The only change since the 18-month review order (April 30, 2007) was the drug free birth of Joshua on July 31, 2007, and the fact that SSA did not petition to declare him a dependent child. At most, this showed Laura did not use drugs in the three months between April 30 and July 31, 2007, and she was able to care for the newborn for a period of three and one-half months between July 31 and November 15, 2007. This was evidence of changing circumstances rather than changed ones, which is not enough. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) It is to be recalled that Laura scammed the drug testing requirement in her residential program, and she still had two positive and five indecisive tests while in the program. The juvenile court found three months of sobriety did not amount to changed circumstances in light of Laura’s history, and it acted within its discretion in making that call. Three months of remaining drug free after services were terminated (by stipulation) at the eighteen month review was not a prima facie showing of changed circumstances.
Nor was caring for Joshua prima facie evidence that providing additional services to Laura would be in Debbie’s best interest. Most notably, despite repeated warnings from SSA, Laura’s home was still not approved as safe for visits by the child – the tenant had not submitted to a background check, there were unsafe conditions (the tottering television and the propane tank), and no bed for Debbie. Here again, the juvenile court acted reasonably in finding additional services would not be in Debbie’s best interests, since Laura failed to make a prima facie showing she could provide a safe home for the child.
Laura argues SSA admitted she was “doing very well” when it increased her unmonitored visitation by two hours after the 18-month review. But the record citations offered for this proposition do not bear it out, nor was it raised in the modification petition, so we deem the point waived. There was no error in denying the petition without holding an evidentiary hearing.
II
Laura contends two evidentiary rulings were mistaken and denied her due process because she was not able to make a case for applying the sibling exception. We disagree.
The rulings sustained objections to two questions as irrelevant. The first asked the social worker what efforts SSA had made to arrange for sibling visitation between two-year-old Debbie and newborn Joshua. The second question was posed to Laura, who was asked how Debbie interacted with Joshua during visits by Laura and the baby. Laura contends the answers “would have provided a more reliable picture of the sibling relationship.”
The sibling exception provides the juvenile court is not required to terminate parental rights if “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26 (c)(1)(B)(v).) The parent bears the burden of proving the exception applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952.)
The rulings were within the juvenile court’s discretion and there was no due process violation. The first question was not relevant. Whether SSA arranged for sibling visitation has no bearing on the existence of a sibling relationship, the issue to be decided, so the objection to this inquiry was properly sustained.
The second question, what kind of interaction took place between the siblings during visitation, might have been relevant, but we have no way to know because there was no offer of proof as to what Laura would have said. In addition, any error here was harmless. First, the excluded testimony would have been cumulative. There was already evidence in the record of the interaction between the siblings during visitation – the social worker testified Debbie got excited when told the baby was coming and again when she saw the baby. Second, the evidence overwhelmingly supports the finding the sibling exception does not apply, and we cannot imagine anything Laura might have said to tip the balance in her favor as a matter of law. Debbie’s excitement certainly does not show a “close and strong bond” with a sibling, and the children were neither raised in the same home nor did they have any common experiences. So without an offer of proof as to what Laura would have testified to, and on the record before us, the juvenile court made the only possible call when it found the sibling exception inapplicable. Nor was there a due process violation, since the constitution is not offended when irrelevant evidence is excluded.
III
Finally, Laura contends there is insufficient evidence to support the finding the benefit exception was inapplicable. She is mistaken.
To satisfy the benefit exception to termination of parental rights, a parent must show she 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) [formerly subd. (c)(1)(a), renumbered in 2007 amendment (Stats. 2007, ch. 583, § 28.5 (S.B 703))].) In making this determination, “the court balances 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575, italics added.)
Laura contends she visited regularly and “assumed a parental role during the visits.” This is shown, she says, by her expressions of concern when she noticed blood in Debbie’s diaper, playing with the child, feeding and grooming her, putting her down for naps, doing her laundry, administering discipline, “tend[]ing to all of her needs and display[ing] love and affection to Debbie.” She points out Debbie called her “mama,” sometimes did not want visits to end, and would go to Laura to be comforted.
But positive as the interaction may have been between Laura and Debbie, it does not show a substantial emotional attachment on the child’s part, nor provide evidence the child would be greatly harmed by terminating parental rights. Nor does it establish the evidence is insufficient to support the finding that the exception was not met. On a substantial evidence challenge, it is not enough to point to the favorable evidence and reargue the case, since we cannot second-guess the trial court and reweigh the evidence. Instead, appellant must lay out the contrary evidence and show why it is insufficient. (In re S. C. (2006) 138 Cal.App.4th 396, 414-415.) That has not been done. The evidence supports the finding that Laura failed to prove the benefit exception should have been applied.
Nor do the factors set out in In re Angel B. (2002) 97 Cal.App.4th 454, 467-468, indicate the benefit exception was met here. As in that case, here the child is also two years old, which the court characterized as too young to understand the concept of a biological parent, and Debbie has spent relatively little time with her mother as compared to the time she was parented by the foster mother. From the child’s point of view, Laura did not interact with her as a mother rather than an attentive and friendly visitor, and the child does not have any special needs that can be met by Laura but not a foster or adoptive parent. So rather than helping Laura, the case supports the finding the benefit exception was not met in this instance.
Since Laura was not entitled to a hearing on her modification petition, and the evidence supports the findings that the sibling exception and the benefit exception are not applicable, the order appealed from must be affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.