Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, Ct. No. J516206 Cynthia Bashant, Judge.
IRION, J.
Trisha R. and Jamie R. (together the parents) appeal orders terminating their parental rights to their daughter, E.R., and orders denying their Welfare and Institutions Code section 388 petitions. Trisha and Jamie contend the court abused its discretion by denying their section 388 petitions and by finding the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A) did not apply. Jamie also claims insufficient evidence was presented to show E.R. is adoptable. Trisha joins this contention. We affirm the orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On March 22, 2006, the San Diego County Health and Human Services Agency (the Agency) petitioned on E.R.'s behalf under section 300, subdivision (b) on the basis of Trisha's substance abuse and Jamie's failure to protect E.R. Police arrested Trisha for being under the influence of drugs and possessing drugs when they stopped her for a vehicle violation. Eight-month-old E.R. was in the car. Jamie said their home was being renovated and it was unsafe for E.R. to live there. The court ordered E.R. detained.
The social worker reported Trisha has an extensive criminal and drug abuse history and Jamie has a criminal history involving drug abuse and domestic violence. The parents minimized their domestic violence history and Trisha denied she had a drug abuse problem. The parents had a volatile relationship. In late March 2006 Trisha claimed Jamie had bruised her arm and she wanted a divorce. In early April Jamie said he believed Trisha was using drugs again and he wanted their marriage annulled.
On April 12, 2006, the court found the allegations of the petition true. The court ordered Jamie to enroll in the Substance Abuse Recovery Management System (SARMS). Trisha was not present at the hearing.
On April 26 the Agency filed a subsequent petition under section 342. This petition added a domestic violence allegation and stated E.R. periodically had been exposed to domestic violence. During a November 2005 incident, Jamie grabbed Trisha by the neck and pushed her to the floor and Trisha repeatedly slapped Jamie in the face while he was holding E.R. In April 2006 Trisha reported that Jamie had beaten her and she had a broken arm.
On April 27, 2006, the court found E.R. to be a dependent child of the court, placed her in foster care, ordered both parents to participate in their service plans, and ordered Trisha to participate in SARMS. On June 16 the parents submitted to the allegation concerning domestic violence. The court found the allegation true and continued E.R.'s placement in foster care.
The social worker reported E.R. was doing well in foster care. Jamie said he had entered a sober living residence and was attending a domestic violence program. Trisha said she was attending AA/NA and meeting with her probation officer. The parents were visiting separately because of their domestic violence.
In October 2006 the social worker reported the parents were not making progress in their reunification plans. Trisha had been in and out of jail for being under the influence of drugs and, on August 27, 2006, she was arrested after she shoved, bit and hit Jamie. The social worker reported Jamie said he had enrolled in a drug treatment program, but left that program and enrolled in another, and was then discharged from the second program.
On August 8, 2006, E.R. had a high fever and suffered a seizure. Her doctor reported she was in good health and there were no resulting medical problems. The social worker reported E.R. was happy and loving and had no known developmental delays. E.R. subsequently had another seizure.
At the six-month review hearing on November 29, 2006, the recovery specialist from Jamie's new treatment program testified that Jamie had been in the program for one month and was doing well. Jamie testified he had been clean and sober for 37 days and he thought this program was the best one for him.
The court found the parents had made minimal progress in alleviating the causes of E.R.'s dependency, terminated services and set a section 366.26 hearing.
Subsequently, Trisha entered KIVA. In February 2007, at her request, the court ordered her to attend Dependency Drug Court. E.R. was placed in an approved adoptive home in January 2007. On March 5 the court denied Trisha's request for increased visitation time, finding expanded visitation was not in E.R.'s best interests. E.R. had had four febrile seizures since August 2006. However, her neurologist determined she did not need treatment. Her development appeared to be on track. The social worker opined E.R. did not have a beneficial parent-child relationship with either parent. According to the social worker, E.R. was very bonded to her foster parents and although she accepted affection from the parents, she never initiated it and had no difficulty separating from them.
On April 23, 2007, Jamie petitioned under section 388, requesting E.R. be placed with the parents. He claimed he had been sober for six months, had completed an in-patient drug treatment program and was employed. Trisha filed a section 388 petition on the same day, seeking E.R.'s placement with her and continued services. The court denied Jamie's petition and granted a hearing on Trisha's petition.
At a hearing on May 4, 2007, the psychologist who had performed an evaluation of Trisha opined KIVA was an appropriate place for Trisha to address her substance abuse issues and that the risk of placing E.R. with Trisha at KIVA was fairly low because of the strict supervision in that program. In his evaluation the psychologist found Trisha showed a great deal of immaturity and antisocial behavior and that she needed therapy, domestic violence treatment and parenting classes.
Trisha's counselor at KIVA testified Trisha had enrolled at KIVA in late December 2006 and had had several negative drug tests. Trisha was complying with KIVA rules and the counselor believed she was taking a parenting class and attending a domestic violence class outside of KIVA.
Trisha testified she had not participated in services during the first six months of E.R.'s dependency because she was too far into her addiction. After services were terminated she voluntarily entered KIVA, drug court, domestic violence treatment and therapy. She said she had been sober for 126 days, had attended 12 of 52 domestic violence treatment sessions and was no longer involved with Jamie.
The court accepted Jamie's stipulated testimony that he was moving to Hawaii the next day to start a new job and would provide financial assistance to Trisha and E.R. He opposed termination of his parental rights.
The court denied Trisha's section 388 petition, finding there had been a change of circumstances, but that a change in the court's previous orders was not in E.R.'s best interests.
The court stated it would consider the evidence from the section 388 hearing for the section 366.26 hearing. No additional evidence was offered. The court found it was likely that E.R. would be adopted were parental rights terminated and none of the exceptions of section 366.26, subdivision (c) were present. The court terminated parental rights and referred E.R. for adoptive placement.
DISCUSSION
I. The Section 388 Petitions
Jamie contends the court abused its discretion by summarily denying his section 388 petition without a hearing. Trisha asserts the court abused its discretion by finding that granting her petition would not be in E.R.'s best interests.
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 . . . . [¶] . . . [¶]
"(c) 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 gain 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 5.570; 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.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must [also] show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The petitioner bears the burden of proof to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
A. Jamie's Petition
Jamie contends the court erred in denying his section 388 petition without an evidentiary hearing on the "technical" ground that he failed to request custody of E.R. and did not make the required prima facie showing. We disagree.
In his petition Jamie stated he had been clean and sober for six months and had completed the CRASH in-patient program. He asked that E.R. be placed with "her parents." The court asked Jamie's counsel if Jamie was supporting Trisha's request that E.R. be placed with her at KIVA. Counsel stated, "At this point, yes, since they are not living together." However, contrary to Jamie's assertion on appeal, the court did not deny Jamie's petition solely because the parents were not living together. Rather, the court indicated that the basis for denying the petition was because "the facts do not support what is requested," "the request does not state new evidence or a change of circumstances," and "the request does not show how it will be in the best interests of the child." These grounds are well supported. Although Jamie alleged he had completed in-patient substance abuse treatment, he did not suggest he had even begun to participate in domestic violence treatment, an important cause of the dependency. Further, he did not show the change he requested would serve E.R.'s best interests. Without an evidentiary showing in these areas, Jamie did not state a prima facie case for relief. Jamie's petition did not allege he had dealt with all of the problems that led to the dependency, and the record showed E.R. did not have a beneficial parent-child relationship with the parents. We discern no error.
B. Trisha's Petition
Trisha contends the court abused its discretion in denying her section 388 petition because she proved changed circumstances and presented evidence that reunification was in E.R.'s best interests. Trisha has not shown that the court erred in denying her petition, as substantial evidence supports the court's finding the proposed change was not in E.R.'s best interests.
In In re Kimberly F., supra, 56 Cal.App.4th 519, 530-532, the appellate court listed three factors a court might consider when determining if a child's best interests would be served by granting a section 388 petition: (1) the seriousness of the problem that led to the dependency and the reasons for any continuation of the problem; (2) the strength of the bond between the child and the caretaker; and (3) the degree to which the problem may be removed and the degree to which it has been removed.
The serious problems that led to E.R.'s dependency were Trisha's substance abuse and Trisha and Jamie's domestic violence. Trisha made no progress in solving these problems during the reunification period. Admittedly, after reunification services were terminated Trisha entered KIVA, where she began working on her severe drug addiction. Trisha testified she had begun domestic violence treatment and parenting classes; however, there was no evidence regarding her progress in these programs.
As to the second factor, the strength of the bond between the child and caretakers, the evidence disclosed that during the 13 months of her dependency, E.R. had developed strong bonds with her foster parents. In contrast, the evidence did not show she had a strong relationship with the parents. E.R. accepted affection from the parents during visits, but was not especially happy to see them, and separated easily when the visits concluded. The social worker opined E.R. had a parental bond with her caretakers, but not with her parents.
As to the third consideration, the degree to which the problems had been removed, Trisha had been at KIVA since December 29, 2006, and said she had begun domestic violence treatment and parenting classes, but there was no evidence that she would be able to safely parent E.R. once she left the structured environment of KIVA. The court acknowledged Trisha had made strides in dealing with her addiction in the KIVA program, but found it was not in E.R.'s best interests to take her from her caretakers. Substantial evidence supports the court's decision.
II. The Exception to Adoption of Section 366.26, Subdivision (c)(1)(A)
Trisha and Jamie assert the court erred by finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) 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 because one of the specified exceptions of section 366.26, subdivision (c)(1)(A) exists. (In re Autumn H., supra, 27 Cal.App.4th at p. 574.) Under the exception in subdivision (c)(1)(A), the parent must 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 of section 366.26, subdivision (c)(1)(A)]."
In In re Autumn H., supra, 27 Cal.App.4th, at pages 575-577, this court found substantial evidence to support an order terminating parental rights. This court stated:
"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." (Id. at p. 575.)
In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (Id. at p. 576.)
Substantial evidence supports the juvenile court's finding here that the beneficial relationship exception did not apply. During the 13 months of E.R.'s dependency, the parents visited sporadically. Trisha did not visit E.R. for almost three months at the beginning of the dependency, saying that Jamie had told her she could not visit. There were reports that during her first visits she appeared to be under the influence of drugs. In fact, her visits were irregular until she entered KIVA and began having weekly visits with E.R. at KIVA's facility. Jamie visited regularly at the beginning of the dependency but, after reunification services were terminated, began missing visits and did not appear for the scheduled bonding study.
Moreover, the parents did not show they shared significant, positive parent-child bonds with E.R. such that terminating the relationships would cause her substantial detriment. Visits were generally warm and affectionate, but E.R. usually was not especially excited to see the parents. Although she accepted affection from them during visits, she did not initiate any affection. At the time of the hearing, E.R. had been in her prospective adoptive home for three and one-half months. She babbled much more with her caregivers than with the parents and at the end of visits E.R. was excited to see the foster parents. She had no difficulty separating at the end of visits and sometimes during a visit she would get her diaper bag and go to the door, indicating she was ready to leave. The parents did not show E.R. shared a significant parent-child relationship with them such that she would suffer substantial detriment were their parental rights terminated.
III. Adoptability
Jamie contends the order terminating parental rights was based on insufficient evidence of E.R.'s adoptability because the court lacked sufficient evidence of her medical and developmental status. He maintains E.R. suffered from a seizure disorder and her neurologist suspected a language delay, yet a full evaluation had not been completed. He argues that should the identified prospective adoptive placement fail, there was no evidence that other adoptive families were willing to adopt a child with E.R.'s characteristics. Trisha joins his arguments.
Before a court frees a child for adoption it must determine by clear and convincing evidence 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 or her age, physical condition, and emotional state make it difficult to find a person willing to adopt him or her." (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.)
Substantial evidence supports the court's finding E.R. was likely to be adopted. She was described by the social worker as healthy, friendly and affectionate. She appeared happy in her prospective adoptive home. She had suffered four febrile seizures between August 2006 and the time of the hearing, and she had had an EEG, which the neurologist said showed normal results. After the most recent seizure on March 5, 2007, the neurologist opined she did not need treatment. The social worker reported a full developmental evaluation on March 29 showed she was "on track" and had about a one-month delay in receptive language skills, which was not of concern. The prospective adoptive parents knew of these health issues. E.R. had developed a significant bond with this family and they wanted to provide a permanent home for her. There was no reason to believe this family would not be able to adopt E.R. or that other approved families were not available to adopt her should this adoptive placement fail.
DISPOSITION
The orders are affirmed.
WE CONCUR:
McDONALD, Acting P. J., McINTYRE, J.