Opinion
D042471.
11-12-2003
In re GABRIEL M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J. M., Defendant and Appellant.
J. M. (Father) appeals a judgment terminating his parental rights to his son, Gabriel M., under Welfare and Institutions Code section 366.26.[] Father contends the court abused its discretion by summarily denying his section 388 modification petition. He also argues the court erred in terminating parental rights because he established he had a beneficial relationship with Gabriel within the meaning of section 366.26, subdivision (c)(1)(A) and Gabriels relationship with his siblings warranted application of the section 366.26, subdivision (c)(1)(E) exception. We affirm the judgment.
All statutory references are to the Welfare and Institutions Code, unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2002, the San Diego County Health and Human Services Agency (the Agency) removed newborn Gabriel from the custody of his mother, Kimberly A., and filed a section 300 petition on his behalf because she used dangerous drugs and was out of compliance with her substance abuse recovery program and Father was on a methadone maintenance program. That month, the court made a true finding on the petition. In May, the court declared Gabriel to be a dependent and ordered reunification services.
Father regularly visited Gabriel during the next six months, but he did not enter a residential treatment program. He was unemployed and did not have a legal source of income or a permanent address. Consequently, at the December 2002 six-month review hearing, the court terminated reunification services and scheduled a section 366.26 hearing.
At some point not specified in the record, Father filed a section 388 modification petition seeking placement of Gabriel with him. The court summarily denied the petition because it failed to state new evidence or changed circumstances and did not show how the requested modification would promote Gabriels best interests. Contemporaneously, the court held the section 366.26 hearing. The court found Gabriel was adoptable and none of the section 366.26, subdivision (c)(1) exceptions applied, and terminated parental rights.
DISCUSSION
I
A
Father asserts the court erred in summarily denying his section 388 modification petition.[] We review the summary denial of a section 388 petition for an abuse of discretion.[] (In re Zachary G. (1999) 77 Cal.App.4th 799, 808.)
The Agency asserts we have no jurisdiction to consider Fathers argument that the court erred when it summarily denied his section 388 modification petition because he did not file a notice of appeal from that order. However, a notice of appeal is to be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 1(a); In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1017.) The court here denied Fathers section 388 petition on the same day it terminated his parental rights and issued one minute order from that hearing. Because Fathers notice of appeal indicates he is appealing from the judgment or order entered on May 14, 2003, which is the day the section 388 petition was denied, his notice of appeal is sufficient to place the summary denial of Fathers section 388 petition properly before us.
Father, citing to In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416, asserts this court has held the appropriate standard of review to determine whether a court has properly summarily denied a section 388 petition is de novo. However, in In re Jeremy W., we reviewed the record to see whether the court had abused its discretion in summarily denying a section 388 petition and concluded that it had. (In re Jeremy W., supra, 3 Cal.App.4th at pp. 1413, 1416.) We never held the appropriate standard of review is de novo. Moreover, other courts routinely apply the abuse of discretion standard of review to determine whether a parent has stated a sufficient prima facie case on a section 388 modification petition. (See In re Herenia C. (1993) 18 Cal.App.4th 504, 516; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431; In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Josiah S. (2002) 102 Cal.App.4th 403, 419.)
Section 388 provides in pertinent part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. [¶] . . . [¶] 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 . . . ."
The petition must be liberally construed in favor of granting a hearing to consider the parents request. (Cal. Rules of Court, rule 1432(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If the liberally construed allegations of the petition do not show changed circumstances or new evidence that the childs best interests will be promoted by the proposed change of order, the court need not order a hearing. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
Here, Father asserted his circumstances had changed because he was actively addressing his drug addiction, had been sober since late February 2003, and was enrolled in and getting assistance at an outreach program. However, Father has been using drugs for at least 24 years. In the six months preceding the filing of his petition, he admitted using heroin and tested positive for opiates. He did not enter drug rehabilitation until March 2003, three months after the court terminated reunification services. By the time he filed his motion in May 2003, he asserted he had been sober for only three months. Given his lengthy history of substance abuse, three months of sobriety is insufficient to demonstrate a prima facie case of changed circumstances. (In re Casey D. (1989) 70 Cal.App.4th 38, 49.)
Further, the record showed Father was unemployed and did not have a legal source of income or a permanent address. However, he made no allegations that he had obtained a job, a legal source of income, or a permanent home. A court may correctly conclude the parent has not established a prima facie case of changed circumstances when the parent does not allege he or she is ready to assume custody or provide suitable care for the child while the parent completes drug treatment. (In re Angel B. (2002) 97 Cal.App.4th 454, 463.) Consequently, even assuming Fathers allegations regarding sobriety were sufficient, because he did not assert he had a place to live, a job, or income, the court could correctly conclude he had not asserted a prima facie case of changed circumstances.
Moreover, even if Father asserted sufficient changed circumstances, he also had to sufficiently assert why modifying the prior order would be in Gabriels best interests. (In re Anthony W., supra, 87 Cal.App.4th at p. 251.) To establish a prima facie case of best interests, the parent must necessarily allege he or she has eliminated the factors that required placement outside of the home. (In re Angel B., supra, 97 Cal.App.4th at pp. 463-464.) However, Father simply stated modifying the prior orders were in Gabriels best interests because he requested the child be placed with him. The statement does not explain why the modification might be in Gabriels best interests, particularly because Father did not assert he had eliminated his drug problem, only that he was becoming sober.
Further, once reunification services have been terminated, the focus is no longer on maintaining the family unit but on the childs need for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) This interest outweighs any interest the parent may have in reunifying. (In re Anthony W., supra, 87 Cal.App.4th at pp. 251-252.) Father did not assert he had a home for the child or a steady income. It is not in Gabriels best interests to be removed from the only home he has ever known to live with a man who has a lengthy criminal history and who has used drugs for at least 24 years. (See In re Anthony W., supra, 87 Cal.App.4th at p. 252.) The court did not abuse its discretion in denying his section 388 modification petition.
B
Father also contends the summary denial of his section 388 modification petition denied him due process. If a party establishes a prima facie case on a section 388 modification petition, procedural due process requires the court to hold a hearing. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1416.) However, where, as here, the moving party has failed to meet his threshold burden of proof, the petition may be denied without a hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) Father has not established the court abused its discretion or denied him due process in denying the petition without a hearing.
II
Father asserts the court erred in terminating parental rights because he established he had a beneficial relationship with Gabriel within the meaning of section 366.26, subdivision (c)(1)(A).
A
The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile courts order and affirm the order if it is supported by substantial evidence, even if other evidence supports a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing the finding or order is not supported by substantial evidence. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1).)
The section 366.26, subdivision (c)(1)(A) exception to the adoption preference applies if termination of parental rights 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." (Ibid.)
Here, because the Agency concedes Father regularly visited Gabriel, we examine whether substantial evidence supports the courts finding that he did not demonstrate he had a beneficial relationship with the child. We have interpreted the phrase "benefit from continuing the relationship" to refer to a "parent-child" relationship 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 other words, 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 parents rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]" (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment between child and parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
Here, the evidence showed Gabriel recognized Father as someone he knew and that he enjoyed visits with him. However, pleasant visits are not enough; the parent must occupy a parental role in the childs life. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The social worker believed Gabriel did not see Father as a primary caretaker because the child saw him only once a week. Father argues Gabriel knew Father was his biological parent because the child called him "dada." However, the social worker was unsure whether he identified Father as his biological parent because he was learning the word "dada" and used it on different occasions. Further, the child was not distressed when visits ended.
The social worker believed Gabriel viewed his caretaker as his mother. He called her "mama," and laughed and giggled when she called his name. There was a noticeable bond between them. He looked to her to meet his needs. He was an integral part of the caretakers family, having been with them since he was two days old.
Even if Gabriel recognized Father as his biological parent, Father still had to prove the relationship was sufficiently beneficial as to outweigh the benefit Gabriel would gain from being in a permanent home. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) However, Father has a long history of using drugs and a long criminal history. He was arrested for the first time in 1977 and began doing drugs six years later. He has been arrested for burglary, grand theft auto, and receipt of stolen property. At the time of the section 366.26 hearing, he had barely begun treating his substance abuse problems. Given Fathers history, the court could correctly conclude it was more beneficial for Gabriel to be adopted than to maintain a relationship with someone with such a lengthy criminal history and significant substance abuse problem.
Additionally, to establish the section 366.26, subdivision (c)(1)(A) exception, Father also had to prove terminating the relationship would greatly harm Gabriel. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) However, the evidence showed the social worker believed Gabriel would not suffer detriment if parental rights were terminated. She also believed there was no parent-child relationship between Gabriel and Father and that Gabriels need for permanence, stability, and security outweighed the benefit he might receive from continuing a legal relationship with Father. Father introduced no contrary expert evidence. Substantial evidence supports the trial courts finding that the section 366.26, subdivision (c)(1)(A) exception did not apply.
III
Father asserts the court should have applied the section 366.26, subdivision (c)(1)(E) exception, which provides an exception to terminating parental rights if doing so substantially interferes with the childs sibling relationship.[]
Gabriel had four half-siblings. Two children live with their father out-of-state and Gabriel has never met them. The other two children are in a licensed foster home in San Diego because they are dependents of the court.
Preliminarily, we address the Agencys argument that Father has waived his right to assert the applicability of the section 366.26, subdivision (c)(1)(E) exception by not raising the issue below. Although the court made a finding on the exception, neither Father nor any other party requested the court to do so. By not raising the issue before the trial court, he cannot raise the issue here. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810.)
However, even assuming Father has not waived his right to argue the applicability of the section 366.26, subdivision (c)(1)(E) exception, he nonetheless has the burden to show termination would be detrimental to Gabriel under that exception. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) Section 366.26, subdivision (c)(1)(E) provides an exception to terminating parental rights when: "There would be substantial interference with a childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." We review the courts finding that the section 366.26, subdivision (c)(1)(E) exception does not apply to see if substantial evidence supports that finding. (In re Megan S., supra, 104 Cal.App.4th at pp. 250-251.)
In enacting the section 366.26, subdivision (c)(1)(E) exception, the Legislature was concerned with preserving long-standing relationships between siblings that could "serve as anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) Here, Gabriel never lived with his siblings. Other than weekly visits with them, he had no common experiences with them. Moreover, during visits, the older siblings primarily talked with Kimberly, instead of playing with Gabriel. The social worker believed Gabriel had not formed a significant relationship with his siblings because he had never lived with them.[]
Father infers the Agency is responsible for the lack of bond between the siblings by separating the children. However, Gabriel could not be placed in the same licensed foster home with his two half-siblings because the foster parent did not have sufficient space. Moreover, because the intent of section 366.26, subdivision (c)(1)(E) is to protect existing sibling relationships (In re Erik P., supra, 104 Cal.App.4th at p. 404), the social worker need not place children together who have never lived in the same home to create such a relationship so that the parent may establish the section 366.26, subdivision (c)(1)(E) exception.
Further, to establish the section 366.26, subdivision (c)(1)(E) exception, Father had to establish severing the sibling relationship would cause detriment to Gabriel. (In re L.Y.L. (2003) 101 Cal.App.4th 942, 952.) Father introduced no evidence that Gabriel would suffer detriment if his relationship with his siblings was terminated. The only evidence on the issue was that offered by the social worker, who believed it would not be detrimental to Gabriel to terminate Fathers parental rights as a result of any relationship Gabriel had with his siblings. Substantial evidence supports the trial courts finding that the section 366.26, subdivision (c)(1)(E) exception did not apply.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. and NARES, J.