Opinion
B166810.
10-31-2003
In re GINA S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. STEVEN S., Defendant and Appellant.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Sterling Honea, Principal Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Steven S. appeals from an order of the juvenile court terminating his parental rights to his daughter, Gina S. Steven appeals from an order denying, after a hearing, his petition pursuant to section 388 to modify prior orders and return Gina to his home. The trial court properly concluded Stevens petition failed to allege sufficient facts to show there were changed circumstances or that the best interests of the child would be served by the proposed change of order. He further contends that, given the nature of his relationship with Gina, the trial court erred in failing to find applicable an exception which would have avoided termination of his parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) Based on the record before us, we cannot conclude the juvenile court abused its discretion in finding the exception inapplicable. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Gina S. (born April 2000) came to the attention of the Los Angeles County Department of Children and Family Services (the Department) when she was born and her mother, Patsy L., was observed to suffer from a mental illness, bipolar disorder. The Department filed a section 300 petition on April 25, 2000, alleging Patsy had a history of mental instability and substance abuse. It alleged as to Steven that he had a history of domestic abuse, and that the home of Ginas parents created a substantial risk of detriment to her.
Patsy L. is not a party to this appeal.
Gina was released to Steven on May 11, 2000. He acknowledged having a lengthy history of alcohol and drug abuse, but said he was not using drugs. On June 5, 2000, the Department filed a section 385 petition requesting that Gina be detained because Steven had violated court orders by allowing Patsy to spend the night with him and Gina, and because Steven left Gina alone in a locked, parked car. The court allowed Gina to remain in Stevens custody, ordering him not to allow Gina to have contact with Patsy and to comply with orders regarding the childs protection.
The Department filed an amended section 300 petition on June 29, 2000, alleging Steven had a history of substance abuse, and had tested positive for marijuana on June 14, 2000. On that date, the court ordered Gina detained. The Department filed a second amended petition on July 11, 2000, striking among others the allegation that Ginas parents had engaged in domestic violence. Steven submitted to the second amended petition, and the court found Gina to be a minor described in section 300, subdivision (b). The court ordered the Department to provide Steven with family reunification services and gave it discretion to liberalize appellants monitored visits if he complied with court orders regarding drug testing and rehabilitation.
A progress report dated August 9, 2000, indicated Steven again tested positive for marijuana on August 3, 2000; he tested negative on July 18, 2000. Gina was living in the foster home of Linda P.
At the disposition hearing on August 31, 2000, the court ordered reunification services for Steven, to include parenting classes, drug rehabilitation with random testing, and individual counseling to address substance abuse. He was granted monitored visitation, and if he completed eight clean random drug tests he could have unmonitored weekend visits.
No reunification services were ordered for Patsy.
At the six-month review hearing in March 2001, the court continued reunification services for Steven. The social worker reported that although he tested positive for marijuana on a few occasions, he appeared to be attempting to develop his parenting skills. At the 12-month review hearing in August 2001, the court found Steven was in compliance with the case plan. He had no positive drug tests over the previous six months, and he consistently visited Gina. The court continued to find, however, that Gina would be at substantial risk of harm if returned to Stevens custody.
For the next review hearing in October 2001, the Department reported that Steven had completed a 90-day drug rehabilitation program and continued to test negative for drugs. Steven had progressed to having weekend unmonitored visits with Gina. He appeared to care very much for his daughter and was developing and using his parenting skills. He was very anxious about getting his daughter back but managed his behavior appropriately. Gina was well-groomed while in Stevens care, and he properly attended to her crying by holding her and giving her a bottle. She seemed comfortable with him. The Department expressed concern, however, over Stevens unresolved relationship with Patsy and with whether he would allow Patsy to have access to Gina. The hearing was continued to obtain a report on Stevens progress in his drug program. On November 19, 2001, the matter was again continued for a contested review hearing, pending which Steven was granted a 60-day visit with Gina in his home.
On January 14, 2002, the Department filed a petition seeking to revoke the 60-day visit because Steven failed to submit to drug testing on two occasions, and submitted an adulterated specimen for one test. Another report filed by the Department showed Steven missed a total of four drug tests. Gina was removed from Stevens home on January 9, 2002, and placed in a new foster care home.
On February 4, 2002, the Department filed a supplemental petition. In addition to the missed drug tests, it was alleged Steven tested positive for heroin on January 24, 2002. Stevens visits were ordered to be monitored and to be as frequent and for as long as could be arranged.
In its report for the March 19, 2002 18-month review hearing (& sect; 366.22), the Department reported that Steven again tested positive for heroin on February 12, 2002. He entered a detoxification program on February 14, 2002, and was discharged on February 17, 2002, apparently a day early. He entered a residential sober-living facility on March 2, 2002. He continued to visit with Gina regularly, and was affectionate toward her. He told her how sorry he was for using drugs. He had to be corrected twice for angry statements he made in front of Gina out of frustration with the social workers.
At the March 19 hearing, the court ordered reunification services terminated for Steven. The court also sustained the section 387 supplemental petition filed in early February 2002. The matter was continued until April 23, 2002, for preparation of a supplemental section 366.22 report.
The April 23, 2002 report indicated that Steven admitted that he is an addict. He had entered a detoxification program on March 28, 2002, and tested positive for heroin; he also tested positive for heroin on March 13, 2002, and failed to take scheduled drug tests on March 18 and 25, 2002. After completing detoxification, he entered a sober living facility. He continued to visit regularly with Gina. On one visit in early April the social worker observed that Gina withdrew from Steven when the foster mother attempted to hand her to him, but when placed on the ground she approached him on her own. She appeared comfortable with him and did not cry; they blew bubbles together, ate candy, and Steven held her. At the hearing on April 23, 2002, the court received the supplemental report, and ordered a section 366.26 hearing for August 2002.
The foster family who cared for Gina from the time she was first detained until she was removed from Steven during the 60-day visit filed an application for de facto parent status, and expressed interest in adopting her. The application was granted in May 2002 and the court ordered that Gina be placed with them, and that an adoptive home study be prepared.
In August 2002, the section 366.26 hearing was continued to allow for proper notice to Patsy. The next report, dated October 22, 2002, indicated Steven continued to visit regularly with Gina. The foster agency social worker reported that Steven interacted well with Gina, and Gina smiled when she saw him and was eager to interact with him. Steven continued to be tested for drugs, testing positive for methadone and opiates. Gina was reportedly thriving in her foster care home.
A December 2002 report by the Department indicated the foster parents were interested in adopting Gina. They shared a strong bond with the child, and she viewed them as parental figures. Steven continued to visit regularly and interact well with Gina, although at times she acted somewhat aloof and distant with him. He often brought candy to visits, and the social worker expressed concern that the child had become reliant on the candy, and that Steven was substituting food to appease her during times when she was uncooperative. The adoptive home study for the foster parents was approved. The Department recommended that parental rights be terminated and that Gina be placed for adoption with her foster family. The court identified adoption as the permanent plan for Gina, and set the matter for a contested section 366.26 hearing.
In early December 2002, Steven filed a motion requesting that a bonding study be performed to evaluate his relationship with Gina. The Department opposed the request, and the court thereafter denied the motion.
Steven filed a section 388 petition on January 28, 2003, seeking return of Gina to his care based on the fact that he had completed five months of clean drug tests and would complete his drug rehabilitation program at the end of January 2003. He was enrolled in a methadone maintenance program. He asserted that Gina was bonded to him. The court set the petition for a hearing on the merits. Steven stated in a declaration that Gina enjoyed his company, and would constantly look to see if he was watching her as she played, seeking his approval. In his opinion, she viewed him as her father and not just as a friend or playmate. She would come to him to be comforted when upset, and would accept discipline from him. She told him that she missed him and wanted to live with him again, and would cry at the end of visits.
The Departments March 24, 2003 report indicated that Steven had missed three drug tests and had tested positive for morphine in November 2002. The foster mother had been monitoring Stevens visits with Gina since June 2002. She reported that Gina would cry, did not like the fathers touch, and would sometimes become hysterical and want to be with the foster mother. Eventually Gina would become accustomed to Steven and approach him. She would come to the foster mother to be comforted if she was hurt. Gina did not spontaneously tell her father that she loved him, but would say "I love you, too" after he said it first. The foster mother said Gina called him "Steve" and called her "mommy." She said Gina did not cry at the end of visits with Steven.
In a report dated April 10, 2003, the Department reported that Steven again tested positive for morphine on March 6, 2003. A confirming test that the morphine reading was due to heroin use was not possible because the level of morphine was too low. The social worker observed a visit in late February 2003, during which Gina had a tantrum when Steven, at the social workers direction, told her she could not have any more candy. He gave in and gave her the rest of the candy. The foster agency social worker reported that Gina would regress in her behavior to gain approval and attention from Steven, and that this was not a positive thing. Gina usually called him "Steve," and would say "I love you" only in response to Steven saying he loved her. The social worker said Steven tried to discipline Gina, but did not know how. She denied that Gina would become upset at the end of visits. She said it was evident that Steven loves Gina tremendously and that Gina cares for him, but the bond is more like that of an uncle and not that of a father and daughter.
On April 29, 2003, the court first heard the matter of Stevens section 388 petition. Department social worker Reyes Gaglio testified he was assigned to Ginas case from June 2000 until July 2002, and monitored two visits during 2002. He saw Steven feed and diaper Gina, and said his parenting was appropriate.
A counselor from Stevens rehabilitation program testified that Steven had completed the program and seven months of counseling, and had tested negative since August 2002. He acknowledged that Steven might use drugs again in the future.
The hearing resumed on April 30, 2003, with Steven testifying. He said he has a sponsor, and attends narcotics anonymous and alcoholics anonymous about three times per week. He said when he visits Gina is happy to see him and hugs him. They play and read books together; he gives her piggyback rides and talks with her. She hugs and kisses him and holds his hand. He felt he could get Gina returned to his care if he had another six months to a year of family reunification services. He said he tested positive in April because he mistakenly took Tylenol with codeine which was given to him by a friend; he thought it was plain Tylenol but acknowledged he should have scrutinized it more closely. He denied taking any recreational drugs since August 2002. He said that Gina lived with him for about two months after she was born, and for about two months when she was just over a year old.
The court heard argument from counsel. The court then found that Steven had not met his burden of proof of establishing a change in circumstances. The court did not credit Stevens explanations for the positive drug tests, and concluded that he was still abusing drugs. The court also found that a change in the courts prior orders was not in the best interest of Gina.
The court then heard argument from counsel with regard to the issues pertinent to section 366.26 and the permanent plan. The court ruled as follows: "This is [an] especially difficult and sad case because I truly believe that the father loves his daughter. Unfortunately his love is not sufficient in and of itself to prevent his parental rights from being terminated under the facts of this case. [¶] For the record I would note that the child has been with the caretakers since the age of two months. Shes now three years old. Father has had custody of this child for a total of four months out of her three year lifetime. The last time he was given custody of this child he relapsed. The Legislature has been clear that we need to provide children with permanency, stability if there is no reunification as quickly as possible subject to the [section 366.26, subdivision] (c)(1)(A) exception." The court continued: "Under the facts of this case, I find that the balance of permanency and adoption far outweighs any detriment to the child by terminating the parental rights. In fact, I dont believe it would be any detriment to the child whatsoever. I believe that the child knows the [caregivers] as the parent figures." The court found by clear and convincing evidence that Gina is adoptable, and terminated the parental rights of both Patsy and Steven.
DISCUSSION
I. Section 388 Petition to Modify
Section 388 authorizes a petition to modify a prior order of the juvenile court "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a).) "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 . . . ." (§ 388, subd. (c).)
The petition must make a prima facie showing as to both elements, change of circumstance and promotion of the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A hearing must be held if the petition states a prima facie case, which has been analogized to a showing of probable cause. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) The petition should be liberally construed. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.)
Stevens section 388 petition was based on the fact that he had completed five months of clean drug tests and would complete his drug rehabilitation program in another month. On that basis, the court held a hearing on the petition. At the conclusion of the hearing, however, the court concluded that Steven had not actually abstained from any drug use and thus he had not met his burden of proving a change in circumstances, and that a change in prior orders would not be in Ginas best interest. We are not in a position to second guess the trial courts finding with regard to matters of credibility. There was, indeed, evidence to suggest that Steven had used recreational drugs since August 2002, and the trial court acted well within the bounds of reason in not crediting Stevens explanations for the positive and missed drug tests. On that basis, the trial courts refusal to grant the section 388 petition must be upheld.
II. Termination of Parental Rights
We begin by reiterating the trial courts sentiments that this is indeed an especially difficult and sad case because it is abundantly clear that Steven loves his daughter and attempted to establish a caring relationship with her. He simply could not overcome his drug addiction, particularly while under the stress of potentially losing his parental rights. However, we are ultimately bound, in reviewing an order from a section 366.26 hearing, to uphold the courts conclusion if it is supported by substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424; In re Autumn H. (1994) 27 Cal.App.4th 567, 576-577.)
"At a hearing under section 366.26, the court is required to select and implement a permanent plan for a dependent child. Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. (In re Edward R. (1993) 12 Cal.App.4th 116, 122 . . .; In re Heather B. (1992) 9 Cal.App.4th 535, 546 . . . .) In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).) The parent then has the burden to show termination would be detrimental to the minor under one of four [now five] specified exceptions. (§ 366.26, subd. (c)(1)(A)[-](D).) In the absence of evidence termination would be detrimental to the minor under one of these exceptions, the court `shall terminate parental rights . . . . (§ 366.26, subd. (c)(1), italics added; see also In re Matthew C. (1993) 6 Cal.4th 386, 392 . . . [where minor adoptable and none of the four statutory exceptions would result in detriment to minor, decision to terminate parental rights will be relatively automatic].)" (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
The relevant statutory language, section 366.26, subdivision (c)(1)(A) provides: "(c)(1) If the court determines . . ., by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
"Although the kind of parent/child relationship which must exist in order to trigger the application of section 366.26, subdivision (c)(1)(A) is not defined in the statute, it must be sufficiently strong that the child would suffer detriment from its termination." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418; accord In re Melvin A. (2000) 82 Cal.App.4th 1243, 1253.) "`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 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 567, 575.)" (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418; accord In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
The exception referred to in section 366.26, subdivision (c)(1)(A) "`applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)" (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419.) "The Legislature emphasized the exceptional nature of all the circumstances identified in section 366.26, subdivision (c)(1) by revising the statute in 1998 to require the court to find not only that one of the listed circumstances exists, but also that it provide `a compelling reason for determining that termination would be detrimental to the child. (Stats. 1998, ch. 1054, § 36.6, [p. 6365].) This amendment . . . [made] it plain that a parent may not claim entitlement to the exception provided by subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.)
Application of the factors to consider in determining whether a relationship is important and beneficial establishes that the court did not err in concluding that Ginas need for a permanent, stable adoptive home outweighed any benefit from a continued relationship with Steven. The factors include: the age of the child; the portion of the childs life spent in the parents custody; the positive and negative interaction between the parent and the child; and the childs particular needs. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206; In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Gina was three years old, and had spent only four months of her life in Stevens care, while spending a significant portion of her life with her prospective adoptive parents. While the record contains evidence that Steven and Ginas interaction was positive, it also contains evidence suggesting that there were negative elements to the relationship. We cannot reweigh the evidence or dismiss the trial courts conclusion that severance of the relationship would be of less detriment to Gina relative to the benefit that the permanency and stability that adoption would afford.
It was for the trial court to decide whether Steven occupied a parental role in relation to Gina, and we must uphold its decision where there is substantial evidence tending to show he did not. He had little opportunity to develop such a relationship; he acted as her custodial parent for only four months. Undoubtedly they shared a loving relationship, but a loving relationship is insufficient to provide a basis for an exception under section 366.26, subdivision (c)(1)(A) in the face of a nonexistent parental role. (In re Jamie R., supra, 90 Cal.App.4th at p. 774 [pleasant and emotionally significant relationship does not establish daily nurturing marking parent-child relationship]; In re Jasmine D., supra, 78 Cal.App.4th at pp. 1349-1350 [child should not be deprived of an adoptive parent when natural parent has maintained a relationship that is of some benefit but does not meet childs need for a parent; makes no sense to preserve parental rights in the absence of a real parental relationship]; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419 ["loving and frequent" contact in the absence of a parental relationship does not outweigh a dependents need for permanency and stability accomplished through adoption].)
In In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350, the Court of Appeal held, "`While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to for[e]go adoption in order to preserve parental rights in the absence of a real parental relationship." (See also In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
We affirm the order terminating Stevens parental rights.
DISPOSITION
The orders from which appeal is taken are affirmed.
We concur: EPSTEIN, J. and HASTINGS, J.