Opinion
G031956.
10-23-2003
In re JESUS S., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JOSé F., Defendant and Appellant.
John L. Dodd & Associates, Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Benjamin P. deMayo, County Counsel, and Ward Brady, Deputy County Counsel, for Plaintiff and Respondent. Lori A. Fields, under appointment by the Court of Appeal, for the Minor.
José F. appeals from the juvenile courts order terminating his parental rights to his son, Jesus S. He claims the juvenile court erroneously failed to hold a hearing on his petition under Welfare and Institutions Code section 388, based on a change of circumstances. He also argues the order was erroneous because Jesus would benefit from a continuing parental relationship (§366.26, subd. (c)(1)(A)) and the order interferes with the relationship between Jesus and his siblings (§366.26, subd. (c)(1)(E)). For the reasons stated, we agree with the juvenile court and affirm the order.
FACTS
Jesus S. was born in April 2001 during the time his mother, Teodolinga S., was incarcerated for burglary and grand theft. Although neither she nor Jesus tested positively for drugs at his birth, the mother had tested positively for cocaine and opiates during her pregnancy. José, married to the mother for 22 years, has a history of criminal arrests and convictions. The parents have seven other children: four adults (Jose, Jr., Maria, Sylvia, and Gabriella) and three minors (Yvonne, Juan, and Carla). At the time of Jesus birth, Yvonne and Juan lived with Jose Jr. and his wife, while Gabriella (then still a minor) and Carla lived with a paternal aunt in Mexico.
A dependency petition was filed on Jesus behalf by the Orange County Social Services Agency (SSA), alleging that the parents failed to protect him due to the mothers substance abuse during pregnancy, history of poly-substance abuse, and failure to obtain prenatal care, and the fathers actual or presumed knowledge of the mothers substance abuse. At the jurisdictional and dispositional hearing in May 2001, the juvenile court found the allegations of the petition true, declared Jesus a dependent of the juvenile court, and removed him from his parents custody. Jesus was placed with his adult sister, Maria, and the parents were offered reunification services.
For the first six months of reunification, Jesus parents were cooperative and participated in the case plan. They maintained a small but stable home with Sylvia, Gabriella, Carla, Yvonne, and Juan, which was clean and well organized. They appeared caring and were "positive and loving" in their interactions with the children. They were consistent in their liberal, unmonitored visits with Jesus. José, who did not work due to a disability, visited almost daily, exhibiting appropriate and comfortable interactions with Jesus. The mother called daily and visited weekly, caring for Jesus needs while she was with him.
Both parents attended weekly sessions in a drug treatment program and were tested twice weekly for drugs. José had a positive test for cocaine in August and the mother had one for a "morphine type substance" in October. At the 6-month review hearing in November, further reunification services were ordered.
After the 6-month review, the parents drug use increased. The mother recognized that she needed more intense drug treatment and made an initial contact with a residential program, but José felt he had merely "made a mistake" and could be sober on his own. Neither parent admitted the effects of drug use on the children. SSA monitored the visits because of their drug use, but the parents continued to visit Jesus consistently on weekends and to telephone almost daily. Their interactions with Jesus remained appropriate, and they seemed concerned with his health and well-being. At the 12-month review in April 2002, the court ordered further reunification services.
The 18-month review hearing was held in October 2002. By this time, it was apparent that the parents problems had escalated. They had been evicted twice from their home, and Carla, Juan, and Yvonne were living with their sister Maria. The parents had not visited their children since August 2002, and neither their social workers nor their adult children knew where to contact them. The mothers drug tests were consistently positive and she was dropped from her perinatal program; José stopped drug testing completely in June 2002. Neither parent had been consistent in visits with Jesus during the six-month review period.
In August, Jesus was moved from Marias home to the home of his adult brother, José F., Jr., and his wife, Laura F. The F.s were willing to adopt Jesus if he did not reunify with his parents. Also in August, the parents met with an SSA social worker at a local park because the CALWORKS worker refused to give them payment until they did so. On that occasion, they both seemed "thin and poorly groomed" and admitted to drug use. They did not ask about Jesus health or status, nor did they use the provided telephone numbers to schedule visits with Jesus.
The parents visited Jesus in the hospital in September when he underwent surgery for a cleft palate, but both family and hospital staff reported that they appeared "restless" and asked for money. While at the hospital, they made an appointment with the social worker for the next day to schedule visits, but they did not show up. The juvenile court ordered reunification services terminated and scheduled a permanency hearing for March 2003.
José filed a section 388 petition on the day of the permanency hearing, asking the juvenile court to modify the court order terminating reunification services by granting him additional reunification services or returning Jesus to his custody under family maintenance. He argued that his circumstances had changed because he was free of drugs and had a stable living situation. In support of these assertions, José declared he had been sharing an apartment with his three minor children since October 2002. He had completed a "one month substance abuse program" under the supervision of a medical doctor in Tijuana that "purged [his] system of all drugs" and included vitamin therapy and nutrition counseling. Furthermore, Jose was referred to a drug diversion program (Pen. Code, § 1000) by his probation officer and had been attending two-hour weekly meetings since December in which the participants discussed the effects of drugs on their bodies and families. Josés twice-weekly random drug tests under the program had all been negative. José also submitted attendance cards from Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) showing he had attended meetings in the months of January and February 2003.
Acknowledging he had not seen Jesus for five months, José claimed he "continually" asked the social worker for visits, which she refused. He believed it would be in Jesus best interests "to be with his father who loves him as well as his other siblings. He would be a part of a large and loving family."
SSA filed a report in response to the petition that contradicted some of the fathers assertions. First, the social worker reported Josés stated address was the home of his adult daughter Maria, who had been raising her three minor siblings alone until José moved in. Second, neither the social worker nor the worker assigned to transport Jesus to visits had received any voice mail messages from José requesting visitation or inquiring about his health or status. The F.s reported José asked them for visits, but they told him to contact SSA, as they had been instructed.
While considering whether to grant a hearing on the petition, the juvenile court noted there was no date given for the Tijuana program, nor did the petition explain the timing of the arrest that caused him to enter the drug diversion program. After conferring with José, his counsel responded, "Father tells me that he was arrested on October 10th of 2002, and that he went to that program as soon as he was released from incarceration on October 12, 2002." Counsel then presented a brief argument in support of the petition. Following that, the juvenile court questioned counsel about Josés lack of visitation with Jesus. Counsel stated, "According to the father, he only had one actual conversation with the social worker which was around November 10th of 200[2]. At that time the social worker informed the father that [he] was going on vacation; that when he returned from vacation, that he would schedule visitation with the father. [¶] The father informs me that after the scheduled time for the social worker to return from vacation, that then he left numerous messages." The juvenile court then asked for some details of the Tijuana program. "This program in Tijuana, was it a detox type of program? Was it once a week? Outpatient? What kind of program was it? He was only there 30 days?" Counsel responded, "My understanding from the father is that it was a program where you stay in the program for the 30 days. [¶] . . . [& para;] [I]t was a detox program. They did not test. They just kept you in the program for 30 days."
After further argument by all counsel, the juvenile court denied a hearing on the petition. It noted Josés long history of drug abuse and his short period of sobriety. "[A]pparently he was still using in October [2002] or he would not be in a diversion program at this time." And the court was struck by the five-month period during which Jose had no contact with Jesus. "[H]e hasnt seen the child since last September. He has made no effort whatsoever. [¶] . . . I cant understand how it could be in the childs best interest. This child will be two in April. During the most formative period of this childs life, which is after one year old, before two years old, he has done nothing . . . to bond with this child or to keep in contact with this child."
The juvenile court proceeded with the permanency hearing and found Jesus adoptable. José argued that the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights be applied in his case, because Jesus would benefit from a continuing parental relationship with his father. The court decided José had not visited consistently and that Jesus need for permanency outweighed whatever bond he had with his father. "Interaction and attachment is not a bond that would offset the permanency that is of benefit to this child."
José also argued that the section 366.26, subdivision (c)(1)(E) exception to termination of parental rights should be determinative. He believed that there would be "substantial interference" in Jesus sibling relationships — shown by the pleasant interactions between the children when they visited Jesus — with the other siblings living in his home. Finding that permanency for Jesus was more important than the potential interference with the childrens relationships, the court ruled that the exception did not apply. The court ordered Josés parental rights terminated and Jesus placed for adoption.
DISCUSSION
A. The trial court did not abuse its discretion by denying the section 388 petition without granting a hearing.
Section 388 allows a parent to petition for a hearing to modify a prior order of the juvenile court based on a change of circumstance that would make modification in the best interests of the child. Section 388 provides a "mechanism by which the changing conditions of a family and a childs life may be taken into account." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1260.) A parents constitutional due process rights in the dependency system, thus, are protected by this "escape mechanism" which balances the parents interest in reunification with the childs interest in stability and permanence in his home. (See generally In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Section 388 does not clearly delineate two separate prongs. It states first, that "a parent . . .may, upon grounds of change of circumstance or new evidence, petition the court" and second, that "[i]f 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." Case law has interpreted the statutes wording to require both (1) a change of circumstance and (2) a showing that the proposed change of order is in the best interests of the child to justify a hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Diajah T. (2000) 83 Cal.App.4th 666, 672; In re Zachary G. (1999) 77 CalApp.4th 799, 807-808.)
To justify a hearing, the allegations of the petition must be specific, concise statements that are not conclusory. (Cal. Rules of Court, rule 1432(a)(6)(7)); In re Anthony W., supra, 87 Cal.App.4th at 250.) These specific allegations must constitute a prima facie showing, i.e., state "facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Petitions that are successful include attachments that demonstrate the change in circumstances the petitioner would present in a hearing. (In re Anthony W., supra, 87 Cal.App.4th at 250.) Although the court has the discretion whether to grant a hearing (In re Margarita D. (1999) 72 Cal.App.4th 1288, 1298; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431), it must order a hearing if the petition makes a prima facie showing. (In re Angel B., (2002) 97 Cal.App.4th 454, 461.)
José claims his petition made such a prima facie showing and the juvenile court erred in denying a hearing. We disagree. First, the allegations of the petition consist of misleading, unverifiable, and conclusory statements that fail to show a significant change of circumstances. Second, the substance of the allegations does not support a finding that returning Jesus to his father would be in the best interests of the child.
Several of the allegations contained in the petition are misleading. José alleges he is "raising three other children on his own", but he and the children are living in Marias apartment. She was raising the three children during the six months before reunification services were terminated. It is not unreasonable to assume that she is continuing to have a major share in raising the children. In addition, the Penal Code program in which José is participating has been accepted by the juvenile court as a diversion program only, not a drug treatment program. A group therapy program that is ordered as a condition of probation is not an indication of a serious commitment to addressing a drug abuse problem. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 521, disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
Other allegations are unverified. José provided no documentation or information on the Tijuana drug treatment program in which he claims to have been involved. SAA could not verify that José was testing negative with the diversion program, nor was SSA able to verify Josés participation in the NA and AA programs. Mere assertions unsupported by clear evidence, such as certificates of completion, do not show a change of circumstance. (In re Anthony W., supra, 87 Cal.App.4th at 251, citing In re Edward H., supra, 43 Cal.App.4th 584, 593.)
Other allegations are conclusory statements rather than concise statements of fact. José states he could provide a "safe, stable and drug free environment," that he was now "a stronger and drug free person able to meet the needs of my child" and that it was "in Jesus best interest to remain with his father." These statements do not support a prima facie showing of a change of circumstances necessitating a hearing. (In re Anthony W., supra, 87 Cal.App.4th at 251; see generally In re Edward H., supra, 43 Cal.App.4th at 592-593).
Even if José demonstrated a change of circumstances, he has not made a showing that returning Jesus to him will promote the childs best interests. (In re Angel B., supra, 97 Cal.App.4th at 465.) "The juvenile court [is] justified in denying the petition without a full hearing [if] there [is] no showing that a change in placement at this time would promote [the childs] best interests." (In re Elizabeth M . (1997) 52 Cal.App.4th 318, 323.)
José has shown that he can remain sober, but only for short periods of time. His initial sobriety under the reunification plan lasted only six months before he again used cocaine. Over the entire reunification period of 18 months, he was only able to remain sober for a few months at a time; further, he has not yet completed a verified drug treatment program. A brief period of sobriety and a history of relapses is not evidence of a change of circumstances that would create a custody situation in the best interests of the child. (In re Angel B. , supra, 97 Cal.App.4th at 463; see also In re Casey D. (1999) 70 Cal.App.4th 38, 48.)
Jesus has never been in his fathers custody. He was moved to the care of the F.s in August 2002, when he was 16 months old. At the time of the section 388 hearing, he was 22 months old and had not seen his father for over five months. José presents nothing to indicate Jesus would benefit from being returned to him. He states in his declaration that he "cherished" the time he spent with Jesus earlier in the reunification period, he brought him presents, and he never stopped thinking about him. After reunification services are terminated, however, the focus shifts from the parents interest in the care and companionship of his child to the childs interest in a stable and permanent home. (In re Stephanie M . (1994) 7 Cal.4th 295, 317; In re Marilyn H., supra, 5 Cal.4th at 309). At this point, Joses interest, affection and small presents cannot outweigh Jesus need for a stable and permanent home.
B. Exceptions to the termination of parental rights do not apply.
When the juvenile court has found that a child may not be returned to his or her parents, and it is likely that the child will be adopted, the court must determine the proper permanency plan for the child (§366.26, subds. (a)(b)&(c)). Adoption, where possible, is the permanent plan preferred by the Legislature to provide a stable, permanent home for the child. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Megan S. (2002) 104 Cal.App.4th 247, 251; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Adoption is preferred because it allows a full emotional commitment and provides the "best chance at such a commitment from a responsible caretaker." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
The Legislature has specified five exceptions to the preference for adoption. "The court shall terminate 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 . . . ." (§ 366.26, subd. (c)(1).) José claims that two of the exceptions apply here.
1. The "beneficial relationship" exception does not apply
José contends that the "beneficial relationship" exception should have prevented the termination of parental rights because Jesus would benefit from a continuing parental relationship with him. This exception to adoption applies if "[t]he parents or guardians 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 first requirement of the section — regular visitation and contact — is relatively self-evident. The second requirement — that continuing the relationship would be beneficial for the child — is not necessarily as clear and is not defined by the statute.
Case law has established that a relationship is of benefit to a child if it "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 re Autumn H . (1994) 27 Cal.App.4th 567, 575.) To determine if the relationship reaches this quality, the court must balance "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." (Ibid.; see alsoIn re Melvin A. (2000) 82 Cal.App.4th 1243, 1253; In re Derek W., (1999) 73 Cal.App.4th 823, 827.) The court must consider "[t]he age of the child, the portion of the childs life spent in the parents custody, the `positive or `negative effect of interaction between the parent and child, and the childs particular needs. . . ." (In re Autumn H., supra, 27 Cal.App.4th at 576; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.)
The parent must occupy more than a "pleasant place" in the childs life (In re Elizabeth M., supra, 52 Cal.App.4th at 324), and the parents relationship with the child must be more than "frequent and loving contact" (In re L.Y.L. , supra, 101 Cal.App.4th at 953). The relationship must constitute a "significant, positive emotional attachment" based upon daily interaction and parental nurturance. (In re Derek W ., supra, 73 Cal.App.4th at 827.) The parent must "stand in a parental role to the child." (In re Beatrice M . (1994) 29 Cal.App.4th 1411, 1420.) Further, the exception obtains only if terminating the parental relationship would "deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . ." (In re Autumn H ., supra, 27 Cal.App.4th at 575.)
Josés involvement with Jesus falls considerably short of regular visitation and contact. While he did maintain a consistent visitation schedule during the first six months of the reunification period, he was unable to sustain that level of involvement with his son. During the second six months of reunification, Josés visitation, while still relatively consistent, was less frequent. In the last six-month reunification period, his visitation was inconsistent. By the time of the modification hearing, it had been over five months since José had seen his child.
Even if José had met the requirements of regular visitation and contact, however, he would be unable to show that continuing his relationship with Jesus would be beneficial to the child. Jose was basically an affectionate adult friend. He describes their early relationship: "Jesus would hug and kiss me and show me affection. He would play cars with me and always want to be held by me. At the end of the visit he would cry and try to hold on to me. Sometimes for the visits I would bring him little presents, including toys, clothes, and snacks." The early visits with José were undoubtedly pleasant ones for Jesus, even loving and emotionally positive. Yet, they do not signify a continuous interaction in which José "stand[s] in a parental role" to his son. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1420.)
Additionally, there is no showing that Jesus would be harmed by the termination of the parental relationship. He was removed from parental custody when he was only a few days old, "too young to understand the concept of a biological parent." (In re Angel B., supra, 97 Cal.App.4th at p. 467.) During his entire life he has lived with an adult sibling — first with his sister Maria and then his brother José, Jr. His father has been an occasional, affectionate visitor in his life. Any detriment Jesus might suffer from missing his father would be eclipsed by the detriment he would suffer if removed from his preadoptive home. (See In re Angel B., supra, 97 Cal.App.4th at p. 468.)
2. The "sibling relationship" exception does not apply.
José also asserts that the court was in error because it did not apply the "sibling relationship" exception to adoption. This exception to adoption pertains when "[t]here 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." (§366.26, subd. (c)(1)(E).)
For there to be "substantial interference," the childs relationship with his siblings must be such that severing it would be detrimental to him. (In re L.Y.L.,supra , 101 Cal.App.4th at p. 952; In re Megan S., supra, 104 Cal.App.4th at p. 252.) The detriment to the child must be considerable to trigger the exemption. The Legislatures intent when it enacted the "sibling relationship" exception was to "preserv[e] long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) Further, it was expected that the sibling relationship would rarely be strong enough to overbalance the benefits of adoption. (In re L.Y.L., supra, 101 Cal.App.4th at p. 950.)
Jesus relationship with his three siblings who live currently with his father does not qualify under any of the factors required for the exception to apply. He has never shared the same home with them. He was placed in protective custody shortly after his birth, at which time his siblings were either living with their adult brother or with an aunt in Mexico. Although Jesus was placed temporarily with Maria, he had been removed to the F.s home by the time the three siblings moved into her home. It is reasonable to conclude that he has not "shared significant common experiences" with them. (§ 366.26, subd. (c)(1)(E).) In a similar case, the court found because the child had been placed in foster care as a newborn, he shared no history with his sibling. Thus, any relationship they had could not "serve as an anchor" and did not outweigh the benefit of being adopted. (In re Erik P., supra, 104 Cal.App.4th at p. 404.)
Jesus had brief visits with his three siblings during the first 12 months of the parents reunification plan. José reports that the children visited and played together. Undoubtedly, these visits were enjoyable experiences for Jesus. However, enjoyable experiences do not constitute "close and strong bonds" (§ 366.26, subd. (c)(1)(E)) so that the exception would apply. Jesus has been living with the F.s, where he is well adjusted and comfortable. He enjoys interacting with them and is securely attached to them. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426-1427; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017-1018; In re L.Y.L., supra, 101 Cal.App.4th at p. 952.)
Furthermore, there is no reason to assume that Jesus relationship with his younger siblings will be severed if he is freed for adoption. Although the F.s do not desire a kinship adoption agreement, which guarantees post-adoptive contact with relatives, there has been considerable contact and cooperation within the sibling group, as shown by the care and concern of the adult siblings for the younger siblings throughout the reunification period. Presumably, this pattern of behavior will persist. (See In re Jacob S., supra, 104 Cal.App.4th at p. 1019.)
DISPOSITION
The order terminating parental rights is affirmed.
WE CONCUR: BEDSWORTH, J., and FYBEL, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise specified.