Opinion
G037740
5-31-2007
In re J. C., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JOHN C. et al., Defendants and Appellants.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant John C. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Jill S. Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor.
NOT TO BE PUBLISHED
John C. and Jill S. appeal from a judgment that denied their changed circumstances petitions, and terminated parental rights to their daughter, J., pursuant to Welfare and Institutions Code section 366.26. They argue the juvenile court erred when it refused to hold a hearing on the petitions, and when it refused to apply the "benefit exception" found in section 366.26, subdivision (c)(1)(A). We disagree and affirm.
All statutory references are to the Welfare and Institutions Code.
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In August 2005, John and Jill asked the H.s to care for J. (then two years old) so they could enter a drug rehabilitation program in San Jose. The homeless parents had met the H.s through a church that gave them food and shelter. The H.s agreed, provided the parents stayed in the program. In the middle of September, the H.s learned that John and Jill had left the program. The Orange County Social Services Agency (SSA) was notified, took J. into protective custody, and investigated.
The record does not indicate how the H.s learned the parents had left the drug rehabilitation program, nor who notified SSA of the situation.
SSA tracked down John and Jill at a motel in San Jose. John said the couple had left the drug program because it required them to live apart for the entire year-long program. He told a social worker they had entered another drug program in San Jose and wanted the H.s to have temporary custody of J. SSA also learned that J. had two siblings previously declared dependent children because of "severe" general neglect. John and Jills parental rights had been terminated as to one of the siblings and the other, who has a different father, was placed with his father.
SSA filed a dependency petition that alleged failure to provide adequate food, clothing and shelter, inability to provide regular care due to substance abuse, and sibling abuse. (§ 300, subds. (b), (j).) The facts alleged were as set out above.
In November 2005, the juvenile court sustained the petition, removed J. from parental custody, and ordered reunification services. The service plan required counseling, a parenting class, drug testing, and "[i]f you test dirty you will enroll in a[] treatment program."
The six-month review was held in May, 2006. SSA reported the parents progress was "unsatisfactory." They had delayed contacting the assigned social worker until late January and only met with her at the end of February. During this time, John and Jill were dropped from both parent education and counseling for nonattendance. They began a new parenting class in early March, but not counseling. The parents also delayed drug testing until early March. By May, John had missed several tests, and Jill had one missed test and one positive test. The social worker was "highly concerned" because the missed and positive tests showed the parents had failed to address their drug problem, and she recommended services be terminated. The juvenile court agreed. It terminated services, save for continuing drug testing at the parents request, and set the matter for a permanency planning hearing,
In September 2006, the parents filed separate petitions that alleged changed circumstances and requested reinstatement of services. An accompanying stipulation, continuing the permanency planning hearing and providing that a hearing would be held on the petitions at that time, was signed by the juvenile court.
In a declaration supporting his petition, John stated he had remained drug free since the six-month review in May, but he admitted to a positive test for alcohol in August. He said he had visited regularly, completed a parenting class, held down a stable job, and resided with Jill in an apartment provided by the motel where he worked as a groundskeeper. John declared he loved J., "we can provide a safe and loving home for her," and it was in J.s best interests to be raised by her biological parents.
Jills supporting declaration stated she also had visited J. regularly and had tested clean since May. Jill disputed an SSA report that she missed five tests, attaching copies of lab specimen receipts for those dates. She said she had a full time job at a supermarket, and worked evenings so she could care for J. during the day when John worked. Jill also professed her love for J. and wanted to offer the child "a safe and loving home, with both her mother and father."
SSA responded to the petitions in an addendum report submitted for the permanency planning hearing. It reported Johns positive test in August 2006. SSA did not deny Jills claim that she had not missed any tests. But it said that lab results received after the six-month hearing showed Jill had another positive test on May 2, 2006, a week prior to that hearing. Neither parent had enrolled in a drug program or counseling, nor submitted verification of their employment.
The combined hearing took place in October 2006. On the petitions, the juvenile court noted that neither parent had enrolled in a drug program, acknowledging it had missed that fact when setting the petitions for an evidentiary hearing. After hearing argument, the court found neither parent made a prima facie showing of changed circumstances. "[W]e have zero compliance with the main component in the case plan. . . . Theyve had every opportunity . . . to show me that they could . . . overcome the drug and alcohol abuse. They didnt do any of it. . . . The parents failure is abject. . . . I never should have set it [for a hearing] in the first place. I should have set it for argument. Neither parents motion meets the standard."
The permanency planning hearing followed. SSA reported that J. was likely to be adopted and she had bonded with the H.s, whom it identified as the prospective adoptive parents.
John and Jill elected to make statements instead of testifying. John said "we were notified that we had abandoned our daughter, which was never true. This is the whole reason why were here right now." He claimed the couple had "flipped a complete 180" since the case began, and asked to court to reinstate services. Jill said she loved J. and "Id do anything to get her back. I feel like Ive changed. . . . Ive got a good job. Ive been stable for the last five months, six months. Ive been clean. I dont know. I love my daughter. Id really love to get her back, and Id do anything to do it."
The juvenile court found it was likely J. would be adopted, adoption was in her best interests, and the benefit exception did not apply. It ordered the parental rights of both parents terminated.
I
John and Jill argue they were entitled to a hearing on their changed circumstances petitions. John contends the juvenile court abused its discretion in reneging on its order setting the matter for a hearing, and Jill contends she presented a prima facie case of changed circumstances. Both are mistaken.
A parent seeking to modify a prior order must show changed circumstances or new evidence, and the modification would be in the childs best interests. (§ 388; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A petition that alleges only changing circumstances fails for want of showing benefit to the child since, to quote one of the most often cited sentences in this area of the law, "`childhood does not wait for the parent to become adequate. [Citation.]" (In re Casey D., supra, 70 Cal.App.4th at p. 47.) To trigger the right to a hearing, the parent must make a prima facie showing of facts which, if believed, would warrant the modification requested. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
The juvenile court acted within its discretion in refusing to hold a hearing on these petitions. The underlying problem is that no prima facie case was shown. It would serve no purpose to permit John and Jill to prove facts that are legally insufficient to warrant the relief requested. The juvenile court may vacate an order that set a hearing on a changed circumstances petition that it subsequently determines has failed to lay out a prima facie case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451 [petition did not allege facts showing modification would be in the best interests of child].)
John does not argue he made a prima facie showing, which underscores the futility of a hearing. Jill claims she did, pointing out she stayed clean after May 2, 2006, found a job, and obtained permanent housing. But that ignores the elephant in the room — the parents long-standing unresolved drug problem that was the reason for dependency. Jill overlooks the fact that she tested positive for drugs twice and still failed to enroll in drug rehabilitation, as required by the service plan. We cannot say the juvenile court abused its discretion in finding five months of sobriety — with no commitment to a drug program — amounted to changed circumstances. At best, Jill showed changing circumstances, which is not good enough. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) There was no abuse of discretion in refusing to hold a hearing on the petitions.
II
We briefly address the argument that John and Jills parental rights were wrongly terminated because the benefit exception applies. The short answer is this: Neither parent claimed the exception below, so the issue was waived on appeal. The juvenile court has no independent duty to consider whether the benefit exception applies. Rather, the burden is on the parent to both assert the exception, and prove it. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; cf. In re Rachael M. (2003) 113 Cal.App.4th 1289, 1295 [relative placement exception in section 366.26(c)(1)(D) waived when not raised below].) That was not done in this case, so there was no error in terminating John and Jills parental rights.
Since there was no abuse of discretion in denying John or Jill a hearing on their respective petitions seeking to reinstate reunification services, and any claim to the benefit exception was waived when not made below, the order appealed from must be affirmed.
We concur:
OLEARY, J.
MOORE, J.