Opinion
C041679. C041991.
7-31-2003
In re H.W. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. R.W. et al., Defendants and Appellants.
R.W. (father) and L.N. (mother), parents of the minors, appeal from orders of the juvenile court denying various petitions for modification and terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.) The father contends the juvenile court abused its discretion in denying his petition for modification that sought to have the minors placed with relatives. The mother joins this argument and further asserts that the juvenile court erred in denying her petition to modify the order denying her reunification services. Both contend the juvenile court erred in terminating their parental rights because they established that the minors would benefit from ongoing contact with them. (§ 366.26, subd. (c)(1)(A).) We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The court may consider "(1) the
FACTS
The Sacramento County Department of Health and Human Services (DHHS) filed a petition and removed H., age two, and A., age five, from appellants home in December 2001 because of appellants ongoing substance abuse. The minors previously had been placed in protective custody in September 2001 and returned in October under an informal supervision plan. Appellants failure to comply with the informal plan triggered the second removal. At the detention hearing, the court ordered DHHS to assess relatives for possible placement if they came forward.
The jurisdictional/dispositional report was filed in January 2002. According to the report, appellants had a long history of substance abuse and were referred to substance abuse treatment programs pending the hearing on the petition but were not complying with those programs. DHHS conducted a placement evaluation of the maternal aunt, the only relative who expressed an interest in the minors. DHHS noted appellants both had chronic substance abuse problems and were resistant to treatment but recommended services because of the minors bond to appellants.
A February addendum report provided further information on the severity of appellants substance abuse problems and resistance to treatment. DHHS changed its recommendation to denial of services pursuant to section 361.5, subdivision (b)(13). At the jurisdictional/dispositional hearing in March 2002, the court denied services to appellants and found that reunification services were not in the minors best interests. The court decreased visitation, found the minors were likely to be adopted, and set a section 366.26 hearing.
The assessment filed in June 2002 for the section 366.26 hearing stated appellants visited regularly at the foster agency and interacted appropriately during the visits. The minors were moved to a prospective adoptive home on May 30, 2002. H. showed some developmental delays that might have been due to lack of stimulation in appellants care and that might improve with intervention. H.s behavioral difficulties also might have been related to these delays. Both minors were in therapy: H. to address his behavioral problems and A. to address separation, loss, and feelings of being responsible for appellants. The adoptions social worker assessed the paternal uncle and aunt on May 6, 2002, for possible placement. While the paternal relatives had the means to provide for the minors and had no specific barriers to placement, they had had little ongoing contact with the minors, minimized the abuse and neglect the minors suffered in appellants care, and were in denial of appellants substance abuse problems. DHHS recommended termination of parental rights.
On July 1, 2002, the father filed a section 388 petition for modification, seeking reunification services, a bonding study, and assessment of the paternal uncle and aunt for immediate placement and as prospective adoptive parents. In a declaration attached to the petition, the paternal uncle stated he and his wife moved from Utah to Sacramento and bought a home in March 2002 in order to provide a home for the minors. He further stated that DHHS had assessed their home in May 2002 but told them they were "too late" in requesting placement of the minors with them.
On July 9, 2002, the court denied the fathers section 388 petition insofar as he sought an order for reunification services, granted the request for an assessment of the paternal uncle and aunt, and set the request for bonding study for further hearing. The father filed a notice of appeal from the denial of his request for reunifications services.
On July 18, 2002, the court, after a hearing, denied the request for a bonding assessment. The father filed a notice of appeal from the denial.
On July 19, 2002, the father filed a second section 388 petition, seeking six months of reunification services, in-home visits, and placement with the paternal uncle. The court denied the petition without a hearing, finding no change of circumstances from the last petition. The father filed a notice of appeal from the denial of this petition.
In a July 2002 addendum to the assessment for the section 366.26 hearing, the adoptions social worker presented her second evaluation of the paternal uncle and aunt. The evaluation noted that the uncle had a remote incident of physically abusing his son, but services had been offered and the matter was resolved. Further, while the uncle and aunt could provide a physically adequate home for the minors, they had little contact with the minors over the years and lacked a relationship with them. The evaluation concluded that the minors best interests would be served by remaining in their current prospective adoptive placement.
A second addendum report contained reports from the minors therapists. A.s therapist reported little progress but said that A. reported she was less angry and liked living in her current home. H.s therapist reported the minors assaultive behavior and defiance were decreasing, primarily because of the highly committed foster parents, who were consistent, set limits, and built his trust. The therapist was concerned that a change in placement would be detrimental to the minor because it would breach this growing trust and have adverse results given his history.
On July 25, 2002, the mother filed section 388 petitions, seeking orders for reunification services and alleging she had completed some substance abuse treatment programs and parenting classes and had visited consistently. The court set the petitions for hearing. The same day, the father filed a section 388 petition, again seeking regular visitation for the paternal uncle and aunt, which would lead to placement of the minors with them. The court also set this petition for hearing.
The combined hearing on the petitions for modification and selection of a permanent plan commenced on August 13, 2002. The court heard the mothers section 388 petition first.
The mother testified that she continued participating in services on her own after the court denied services at the dispositional hearing. She said she participated in group sessions at the Chemical Dependency Center for Women, a DHHS-recognized drug treatment program, until April 2002; received individual counseling; had been drug free for six months; and continued to attend Narcotics Anonymous or Alcoholics Anonymous (NA/AA) meetings four times a week. She currently had no sponsor and had difficulty explaining, except in very general terms, how the services had helped her in parenting or in dealing with her serious substance abuse problem. She admitted she had a 15-year history of substance abuse and explained she had not submitted to drug tests because she could not afford them. The mother further testified she had completed a parenting class and two workshops that dealt with stress and anger management. She also testified she visited the minors regularly and that they called her mommy, were happy to see her, and were reluctant to leave.
The DHHS visitation supervisor testified the mother had missed some visits. She also testified that the minors sometimes did not react at all when the mother arrived and other times were happy to see her. She said the minors showed no anxiety when separating at the end of visits.
The foster agency social worker who also supervised some visits said the minors were happy to visit their mother. He noted there had initially been some difficulty in separating at the end of visits, but not recently. The social worker assistant, who supervised some visits, testified the minors knew who the mother was and were affectionate to her. During one visit that the assistant supervised in April 2002, A. stated she was going to be adopted and told her mother that she wanted to be adopted because she "would stay in the same house."
The court found the mother had made some progress in the initial phases of the substance abuse treatment programs but there was no evidence she continued to participate in treatment. The court also acknowledged the mothers participation in parenting classes and in visitation but was unable to find a sufficient change of circumstances to justify ordering services. The court found services for the mother were contrary to the best interests of the minors because reunification was unlikely. The court then addressed the fathers section 388 petition.
The paternal aunt testified that she and the paternal uncle had lived in Utah for eight years, then decided in August 2001 to return to California to be closer to their family. She and her husband did not have any discussions about the minors prior to making the decision to move. She did not know about the minors situation in December 2001. The paternal uncle returned to California in September 2001 and his wife remained in Utah to sell their home. The paternal aunt said A. was about four years old the last time she saw her and H. was just walking. She testified she had not visited the minors much. Before she returned to California in March 2002, she and her husband did decide they would be willing to help with the minors once they were established in California.
The paternal aunt called DHHS in late April 2002 and was soon contacted by the social worker, who asked to come to their home and expressed concern that they had not come forward sooner. The social worker came and interviewed them and said she would consider them for placement. They met the social worker a second time and reviewed the information. The social worker never said they were too late. The paternal aunt testified she and her husband had one visit with the minors, set up by the father. The minors were cautious because they did not really know their aunt and uncle but became more comfortable as the visit progressed. The aunt testified she and her husband had one child together who was in school and her husband had two adult children. They had some experience with emotionally disturbed children because her stepson had problems when he came to live with them and they had to deal with him. In connection with that child, she testified there was an intervention long ago by Child Protective Services as a result of a spanking by her husband that left a bruise. She further testified she had known the father 22 years and did not think the minors needed protection from him. She based this opinion on her observation of him with the minors at the visit they attended and on his interaction with her son. The paternal aunt said the social worker told them that drug abuse was alleged in the case and she believed there might be some substance abuse but not as much as the social worker indicated. Absent the dependency proceedings, she would not have believed the father had a drug problem. She said she spoke to the father about once a year.
The paternal uncle testified he returned to California in order to be closer to his family. He said part of the reason for the move was the possibility of caring for the minors. He came in September 2001 on a job transfer, and his family followed in March 2002. He knew the minors were in protective custody in September and did not visit with them when they were briefly returned home before they were placed back in protective custody in December. He did not contact the social worker in September or December to seek visits with the minors because he was traveling back and forth to Utah to visit his own family prior to their move to California. The paternal uncle stated he did not speak to the father about the possibility of providing a home for the minors until January 2002. The paternal uncle generally saw the minors when his family went on their yearly camping trip, most recently in August before the minors first removal. However, he was willing to care for and adopt the minors. He said the social worker made a home visit in early May and told them they should have contacted her earlier. There was a second meeting to review their information and the social worker told them the court would make the placement decision. He said the social worker did permit one visit with the minors but later told his wife a second visit would be too disruptive. He did not believe the father used drugs but acknowledged he had little contact with him over the years. The paternal uncle was unaware the father had admitted long-term drug use or that A. was born with methamphetamine in her system.
The social worker testified she evaluated the paternal uncle and aunt to consider them for placement. She first contacted them in May. At that time the minors were in foster care and she was looking for a new home for them. She knew of the current "fos-adopt" family but had not predetermined the placement prior to meeting with the paternal uncle and aunt. The social worker testified that if the paternal uncle and aunt had been an appropriate placement she would not have placed the minors with nonrelatives. When she did place the minors at the end of May, she had ruled out relative placements.
The social worker further testified she ruled out the paternal uncle and aunt because she did not feel they would protect the minors from appellants. The social worker said they minimized appellants drug history and, although they said the family was close, they did not know about the ongoing parental drug problems. She did not believe the paternal uncle and aunt could meet the emotional needs of the minors because they did not accept that appellants had a history of drug use that resulted in neglect of the minors, and there was no relationship between them. The social worker was somewhat concerned about the discipline techniques of the paternal uncle but found he and his wife had good character, could provide the necessities of life, and could facilitate visits between the minors and other family members. The social worker said she had permitted one visit but the visit notes stated the paternal uncle and aunt were strangers to the minors, who were nonetheless told to hug and be affectionate to them. Accordingly, she determined further visits were not in the minors interests.
The court found DHHS had timely assessed the relatives for placement. The court noted the paternal uncle and aunt were tardy in expressing interest in the minors although the uncle was aware the minors were placed in protective custody twice. Moreover, the family clearly was not close since the paternal uncle and aunt were unaware of appellants drug problems and had little relationship with the minors; placement with them would be tantamount to placement with strangers. The court found that, although the paternal uncle and aunt could provide a good home, they showed a lack of willingness to deal with the reality of the familys problems and to adequately protect the minors. Accordingly, placement with the paternal uncle and aunt was not appropriate. The father sought rehearing of the referees order denying placement. Rehearing was denied and the father filed a notice of appeal.
At the commencement of the section 366.26 hearing, which immediately followed the hearings on the section 388 petitions, the court agreed to consider the testimony from the mothers section 388 petition as evidence in the section 366.26 hearing.
The social worker assistant, who had supervised some visits, was recalled and testified that the minors knew the father and greeted him affectionately. Further, H. was reluctant to leave visits. She also testified she observed some inappropriate conversation by the father and that he had difficulty controlling H.
The mother testified that, prior to the minors placement in protective custody in September 2001, she was their primary caretaker. She said neither H. nor A. had emotional or behavioral problems before removal.
The father testified that prior to removal, H. could be aggressive to others but was not aggressive with him and was responsive to discipline. He said that after the second detention H. became somewhat more aggressive and defiant and no longer listened to him. However, H. is affectionate toward him in visits and reluctant to leave. The father stated A. has become less happy and talkative since removal and told him at one visit that they were going to be adopted. He felt he had a close bond to A. and that she would suffer if she did not see him again.
A family friend testified about his observations of the minors on the occasions he visited the home, corroborating the fathers testimony that the minors were well cared for in their home and attached to their parents.
The maternal aunt testified she had generalized concerns about the parents care of the minors although she did not see the family frequently. She had visited the minors since their placement in the "fos-adopt" home and observed that H.s behavior was appropriate and A. was very happy.
Six-year-old A. testified that she did not remember doing things with her father, except going to Marine World. She did not remember living with her mother but recalled going to beauty pageants with her. She said she sometimes visits with her father and would be a little bit sad not to see him anymore. She liked to visit with her mother but it would not make her sad if she did not visit. A. liked where she was living and wanted to live there.
On August 27, 2002, the court found the minors were adoptable and terminated parental rights, concluding there would be no detriment to the minors in doing so. Both the father and the mother filed notices of appeal from this order.
DISCUSSION
There are six notices of appeal pending in these consolidated cases: five from the father and one from the mother.
The mothers notice states that it is from the order terminating parental rights. However, in her opening brief, she also raises issues relating to denial of her petition for modification. DHHS argues that, absent liberal construction of the mothers notice of appeal, this court lacks jurisdiction to consider the latter issues. We note that the section 388 petition and the section 366.26 selection of a permanent plan were both considered in one extended hearing that was relatively continuous. Further, the evidence admitted in the section 388 hearing was also admitted in the section 366.26 hearing. We conclude it is appropriate to liberally construe the notice of appeal to include both the section 388 hearing and the section 366.26 hearing. (Cal. Rules of Court, rule 1(a)(2) .) The notice of appeal is timely as to both, and because the hearings were seriate and relied upon the same evidence, we discern no prejudice to DHHS by permitting the mother to challenge the adverse rulings in both hearings.
The father has appealed denial of two section 388 petitions relating to services (July 10, 2002, and August 13, 2002), denial of his request for a bonding study (July 18, 2002), termination of his parental rights (September 17, 2002), and denial of his petition for rehearing of the denial of his request for relative visitation and placement (November 25, 2002). In his brief, the father addresses only the latter two appeals. We deem the remaining notices of appeal abandoned and dismiss those appeals.
I
The father contends the juvenile court abused its discretion by denying his petition for modification, which sought increasing visitation leading to placement of the minors with the paternal uncle and aunt. The father argues the paternal uncle and aunt met the statutory criteria for relative placement and were entitled to preference over a nonrelative "fos-adopt" placement.
DHHS argues the father lacks standing to raise the issue. We disagree. The father was the proponent of the section 388 petition brought to promote the best interests of the minors and may seek review of denial of the petition on appeal. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
Section 361.3, subdivision (a) provides in part: "In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative." Subdivision (c)(1) of section 361.3 states: "Preferential consideration means that the relative seeking placement shall be the first placement to be considered and investigated." Thus, the statute establishes only a preference in consideration, not a presumption that placement will occur. (In re Stephanie M. (1994) 7 Cal.4th 295, 320, 867 P.2d 706 (Stephanie M.); In re Luke L. (1996) 44 Cal.App.4th 670, 678.)
Under the express terms of section 361.3, relative placement consideration must be given even after disposition if a placement change is necessary. ( § 361.3, subd. (d); Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) In determining whether the relative placement is appropriate, the social worker and the court must consider the best interests of the child; the wishes of the parents and children; the good moral character of the relative and whether there is a history of child abuse; the nature of the relationship between the child and relative; and the ability of the relative to provide a safe, secure, and stable home, protect the child from the parents, and facilitate visits with other relatives. (§ 361.3, subd. (a)(1)-(7).) If the placement change is to occur after disposition, the social worker must also consider "whether the relative has established and maintained a relationship with the child." ( § 361.3, subd. (d).)
A motion for relative placement may be brought by way of a section 388 petition. (Stephanie M., supra, 7 Cal.4th at p. 317.) The predominant task of the juvenile court in considering such a petition is to determine the best interests of the child. (Id. at p. 320.) Denial of the petition is subject to an abuse of discretion standard of review. (Id. at p. 318.)
As required, we view the evidence in the light most favorable to the juvenile courts orders. (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal. Rptr. 637, 623 P.2d 198.) The evidence at the hearing established that the paternal uncle and aunt intended to move to California before the minors were removed from appellants custody. The move initially was unrelated to the minors circumstance. The paternal uncle and aunt did not have a close relationship with the two minors and, at most, saw them on a yearly visit when they came to see relatives in the area. After the paternal uncle learned the minors were placed in foster care, he did not seek visitation or suggest to the social worker that he and his wife could be a placement resource when their move from Utah was completed. Indeed, he did not even discuss the possibility of providing a home for the minors with his wife until March 2002, and his first contact with the social worker did not occur until April. The social worker promptly evaluated them for possible placement. The social worker found the paternal uncle and aunt had good moral character despite one distant incidence of child abuse, could facilitate relative visits, and would be able to provide for the minors care. However, she also found they had no relationship with the minors and either were unaware, or discounted the seriousness, of the drug abuse problems that led to the minors removal. This raised serious concerns about their ability to protect the minors from appellants. The social worker rejected the relative placement and moved the minors to their current "fos-adopt" home. Pursuant to court order, the social worker again evaluated the paternal uncle and aunt and found no change. Their attitudes about appellants neglect and abuse were unchanged, and they had done little to create or maintain a relationship with the minors. At some point, there was one visit, but the visit supervisor observed behavior that indicated attempts to force a relationship on the minors where none existed.
The paternal relatives were considered twice, both before and after the current placement was made. However, they were revealed as little more than strangers who made no particular effort to create a relationship with the minors. They probably could provide food, clothing, shelter, and education, but because they were unfamiliar with appellants history and its effects on the minors, they were unlikely to protect the minors from appellants. The court properly concluded both that the social worker promptly evaluated the relatives, giving them preferential consideration, and that the placement was inappropriate. No abuse of discretion appears.
II
The mother contends the juvenile court erred in denying her petition for modification seeking an order for reunification services because, she argues, she did establish a change in circumstances and the proposed modification was in the minors best interests.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]" (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parents interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309, 851 P.2d 826.) seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
Section 388 provides, in part: "(a) Any parent . . . 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. . . . [P] . . . [P] (c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . or termination of jurisdiction, the court shall order that a hearing be held . . . ."
The mother established that she had continued to pursue reunification services, including drug treatment for her 15-year substance abuse problem, on her own. She completed at least the initial phases of drug treatment in April 2002; had been drug free for six months; and was attending NA/AA meetings although she currently had no sponsor. She also had attended anger management and stress workshops in June 2002 and had completed parenting classes. She had been unable to afford drug tests, had difficulty articulating what she had gained from her services, and had not participated in the second phase of her substance abuse treatment program. She attempted to show she regularly visited the minors, visits were appropriate, and the minors were happy to see her. There was also evidence she missed visits and that the minors simply accepted her presence and were not concerned about separating from her.
Overall, as the court concluded, there was evidence of progress in treating the circumstances that led to the minors removal. However, given the mothers long drug abuse history and her lack of current participation in a drug treatment program, the court could properly conclude it was not in the minors best interests to initiate services. Until the mother had fully comprehended the principles of treatment and aftercare of her drug addiction and was able to demonstrate a substantial period of time free from drugs, providing services to her would only destabilize the minors lives with little hope of reunification. The juvenile court did not abuse its discretion in denying her petition.
III
Both appellants contend the court erred in terminating their parental rights because the evidence showed the minors would benefit from continued contact with them and that adoption would be detrimental.
"At the selection and implementation hearing held pursuant to [Welfare and Institutions Code] section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances that permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (Welf. & Inst. Code, § 366.26, subd. (c)(1).) The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (Evid. Code, § 500; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; Cal. Rules of Court, rule 1463(d)(3).)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: "The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).) The benefit to the child must promote "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. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
Even assuming appellants visitation with the minors was regular, the evidence from A., the therapists, and the visitation observers makes it clear that neither child has a substantial positive emotional attachment to appellants such that he or she would be greatly harmed by termination of parental rights. A. remembers little of her life with appellants and looks forward to adoption and a stable home. Although willing to visit, A. would not be more than a little sad to have no further contact with appellants. H.s cognitive delays were likely the result of lack of stimulation in appellants care and might have contributed to his behavioral problems. These problems, which appellants ignore or minimize, are beginning to resolve in a stable home. H.s therapist believed H. would be harmed by a change in placement. The relationship of appellants to their children can fairly be termed that of friendly visitors. The court did not err in terminating parental rights.
DISPOSITION
The orders of the juvenile court terminating parental rights on August 27, 2002; denying the mothers petition for modification on August 15, 2002; and denying the fathers petitions for modification on August 19, 2002, and for rehearing on October 4, 2002, are affirmed. The fathers appeals from the orders of July 9, 2002; July 18, 2002; and August 13, 2002, are dismissed as abandoned.
We concur: MORRISON, J., HULL, J.