Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, No. EJ02941C Carol Isackson, Judge.
McDONALD, J.
Justin G. and Jamie S. appeal orders terminating their parental rights to their daughter, J.G., under Welfare and Institutions Code section 366.26. They also appeal orders summarily denying their section 388 petitions for modification. We affirm the orders.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Justin G. and Jamie S. are the parents of J.G., who was born prematurely in November 2008. J.G. weighed three pounds five ounces at birth and remained in the hospital for almost four weeks. She had digestive problems and weak eyesight but was otherwise healthy. Later, J.G. received services through the San Diego Regional Center (Regional Center) for speech and language delays.
Jamie had multiple medical problems, including multiple sclerosis, cerebral palsy, epilepsy, scoliosis, diabetes, asthma and mild mental retardation. She used a wheelchair. She received independent living skill services through the Regional Center. Jamie had a history of child welfare referrals alleging she could not properly care for her two older children. The Agency offered her voluntary services in 2005 and 2007, including counseling, assistance from the public health nurse and in-home parenting services. In early 2008, Jamie's two older children were adjudicated dependents of the juvenile court because of domestic violence between Jamie and their father, and between Jamie and Justin.
At the time of J.G.'s birth, Justin was incarcerated on charges of involuntary manslaughter and providing a controlled substance to a minor. He was released on probation in February 2009. As a minor, Justin was both a victim and perpetrator of sexual abuse. He was on probation until 2012 and was prohibited from unsupervised contact with minors.
In December 2008 the San Diego County Health and Human Services Agency (Agency) detained J.G. in protective custody with foster parents who were caring for one of her older sisters. Testing confirmed that Justin was J.G.'s biological father. In March 2009 the court ordered the Agency to provide family reunification services to Justin and Jamie.
Jamie participated in independent living skills, physical therapy and counseling. She was active in the Regional Center. She was homeless and stayed with friends, at hotels or with her mother, who had a history of child abuse. Jamie had difficulty caring for herself and needed round-the-clock assistance to meet her daily needs. In therapy she did not acknowledge any abuse or domestic violence between Justin and her.
Justin regularly attended therapy sessions and a domestic violence prevention program. His social skills were poor. His therapist was concerned about his explosive anger, criminal history and denial of domestic abuse. Justin angered quickly. He hit Jamie on her head, threw things and punched holes in the wall. In September 2009 the visitation center terminated its service because of Justin's agitated, confrontational and aggressive behaviors. On April 27, 2010, the court terminated Justin's and Jamie's reunification services and set a section 366.26 hearing.
Shortly before the section 366.26 hearing, Justin and Jamie each filed a section 388 petition asking the court to place J.G. in their care or reinstate reunification services and expand visitation. The court summarily denied the section 388 petitions.
The section 366.26 hearing was held on September 24, 2010. The court accepted in evidence reports by the Agency and the Court Appointed Special Advocate (CASA). Jamie testified on her own behalf. The parties did not cross-examine the social worker.
The social worker stated J.G. was generally and specifically adoptable. J.G.'s foster mother was in the process of adopting J.G.'s sister and was willing to adopt J.G. The Agency provided supervised visitation services throughout the case. Because of her disabilities, Jamie was unable to hold J.G. without assistance. She relied on others to change J.G.'s diapers, remove her from her car seat and soothe her when she was fussy or upset. The social worker stated J.G. did not appear to have a bond with Jamie. J.G. cried during visits and Jamie could not comfort her. As visitation continued, J.G. distanced herself from Jamie. She would scream "no" if Jamie attempted to touch her or pick her up. J.G. would throw a tantrum if Jamie came near her.
J.G. gravitated to Justin during visits. He fed her and their interactions were appropriate. The social worker said there was a connection between Justin and J.G. Justin was physically affectionate with her and was attentive to her needs. J.G. allowed Justin to hold her and play with her. Justin accepted suggestions about J.G.'s care and asked for information about parenting when he was uncertain about her care.
Justin and Jamie did not bring any supplies for J.G. during visitation. The foster mother sent diapers, food, toys and other supplies to the visits. She notified Justin and Jamie about J.G.'s many doctor appointments. They attended one doctor visit. The social worker did not believe either Justin or Jamie had a parent-child relationship with J.G.
Jamie testified she loved J.G. and visited her as often as her case plan allowed. She said, "I feel we've got a bond. But it could be stronger."
The court found J.G. was adoptable and termination of parental rights would not be detrimental to her. The court terminated parental rights.
DISCUSSION
A.
Section 388Jamie and Justin contend the court erred by summarily denying their section 388 petitions requesting placement of J.G. or reinstatement of reunification services.
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence and the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
The court must liberally construe the section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; Cal. Rules of Court, rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
We review a summary denial of a hearing on a modification petition for abuse of discretion. (Zachary G., supra, 77 Cal.App.4th at p. 808.)
Jamie's Section 388 Petition
In her section 388 petition, Jamie alleged her circumstances had changed because she had not taken advantage of services offered by the Regional Center during the reunification period but now had full in-home supportive services. Jamie lived in her own two-bedroom residence and had a live-in caregiver. She completed domestic violence prevention classes, anger management and a parenting education course and continued in therapy on a monthly basis. Her therapist stated Jamie showed relatively good coping skills and had improved her parenting awareness and skills. Jamie stated a modification of the prior orders was in J.G.'s best interests because she showed love and concern for J.G. at visits and could safely meet her needs.
The juvenile court, construing Jamie's section 388 petition in her favor, found that it stated a slight change in Jamie's ability to care for J.G. The court noted Jamie did not make any factual showing that she could meet J.G.'s needs, and therefore she did not state a prima facie case that modification of the prior order was in J.G.'s best interests. The court summarily denied her section 388 petition.
On appeal, Jamie argues the juvenile court abused its discretion by denying her section 388 petition because she did not receive services carefully tailored to enable her, as a physically handicapped parent of limited intellectual capacity, to effectively parent her child. Jamie faults the Agency for not helping her find a competent live-in caregiver or tailoring the parenting and domestic violence programs to meet her needs. Jamie acknowledges she did not file a writ petition challenging the adequacy of services when the court terminated services and set the section 366.26 hearing, but contends this court can consider the adequacy of those services in determining whether the juvenile court abused its discretion.
Assuming without deciding that review of reunification services under these circumstances is appropriate, we do not find Jamie's argument persuasive. The record shows Jamie received extensive services through the Regional Center and the Agency. From February to December 2005 Jamie received services from the public health nurse, in-home parenting assistance, independent living skills and participated in counseling. In November 2007 the Agency provided voluntary services after it substantiated allegations of domestic abuse in the presence of Jamie's two older children. When J.G. was born, Jamie was receiving reunification services for her older children, including in-home parenting assistance and a domestic violence treatment group for women. She continued to receive Regional Center services. In July 2009 the case manager for the Regional Center said Jamie was participating in physical therapy, independent living skills and counseling.
The record shows Jamie received and continued to receive support and remedial services prior to and during her children's dependency proceedings. Even had Jamie asked the juvenile court to consider the adequacy of reunification services, we would conclude the court did not abuse its discretion by denying Jamie's section 388 petition. There is no showing that a further period of reunification services would allow Jamie to safely care for J.G.
Further, Jamie's section 388 petition did not state a prima facie case that an additional period of reunification services or placement in her care was in J.G.'s best interests. After two years of consistent visitation, Jamie's relationship with J.G. had deteriorated. When Justin did not attend visits, J.G. stayed close to the social worker and would not approach Jamie. J.G. took the social worker by her hand, walked to the door and said "go home." If Jamie approached her, J.G. would scream "no." J.G. had lived with the foster parents since she was less than a month old. She called them "mommy and daddy." J.G. was integrated into a household that included her sister and the foster parents' children. The foster parents met J.G.'s special needs. They were in the process of adopting her older sister and were willing to provide J.G. a permanent home through adoption. The court did not err when it determined Jamie did not state a prima facie case of changed circumstances or that a modification of the prior order was in J.G.'s best interests.
Justin's Section 388 Petition
Justin submitted documentation showing he completed anger management and parenting programs, and continued in therapy. He and Jamie rented an apartment and were no longer living with Jamie's mother. Justin stated he loved J.G. and it was in her best interests to be placed with him.
The juvenile court found the evidence offered in support of Justin's section 388 petition predated the hearing at which the court terminated reunification services and thus did not state a prima facie case of changed circumstances. The court further found Justin's statement of J.G.'s best interests was conclusory.
Justin contends his section 388 petition addressed two important issues raised by the Agency—his progress in therapy and his and Jamie's stable housing. He argues the court abused its discretion when it denied him the opportunity to present evidence on his section 388 petition for modification. Justin asserts these two factors were sufficient to establish a prima facie case of changed circumstances. With respect to J.G.'s best interests, Justin states his affectionate and appropriate visitation with J.G. showed they had a positive parent-child relationship.
Considering the entire factual and procedural history of the case, the court could reasonably conclude Justin did not state a prima facie case of changed circumstances and best interests. The record shows Justin and Jamie obtained housing before the date of the 12-month review hearing. Justin attended therapy before and after services were terminated. He did not present any documentation to show he was able to control his behavior, evidence of which included slapping and hitting Jamie, who could not easily defend herself. Although his abuse of Jamie was well documented, Justin continued to deny there was any domestic violence between them.
Justin had a conviction for sodomy involving a child under the age of 14, and was on probation for involuntary manslaughter until 2012. The conditions of his probation restricted his ability to have unsupervised contact with children. Justin did not make a sufficient showing that he could properly care for J.G. With one exception, he did not attend her medical or Regional Center appointments. He acknowledged J.G. was not safe in Jamie's care and remained unrealistic about his ability to protect and provide for J.G. As discussed above, J.G. was bonded to her foster parents. The social worker did not believe Justin had a parent-child relationship with J.G. The juvenile court did not abuse its discretion by summarily denying Justin's section 388 petition.
B.
Presumed Father Status
Justin argues the court should have recognized his status as a Kelsey S. father.
A Kelsey S. father is an unwed father who promptly comes forward and demonstrates as full a commitment to his parental responsibilities as the mother allows and circumstances permit. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.) If a father achieves Kelsey S. status, due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. (Ibid.)
He argues that as a mere biological father he was not entitled to services or custody of his daughter. Justin acknowledges he did not raise the issue of his paternity status in his section 388 petition or at the September 24, 2010, section 366.26 hearing.
Justin has forfeited this issue on appeal. A party forfeits the right to claim error as grounds for reversal on appeal when he or she does not raise the objection in the trial court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)
Were we to consider the claim on its merits, we would conclude Justin's argument is without merit. Justin received the due process and statutory protections afforded to a presumed father, including reunification services and detriment findings. (§ 361.5, subd. (a) [services must be provided to the child's mother and statutorily presumed father]; In re A.S. (2009) 180 Cal.App.4th 351, 362 [court may terminate biological father's parental rights without a finding of detriment].)
Justin does not cite, and we do not find, any instance in which the juvenile court made a finding or decision based on Justin's status as a mere biological father. The court proceeded as if Justin were a presumed father. The court ordered the Agency to provide reunification services to Justin at the dispositional hearing and made findings of detriment at the six-month and 12-month status review hearings. The court considered whether Justin's section 388 petition stated a prima facie case without regard to his paternity status and ruled on his assertion that the beneficial parent-child relationship exception to termination of parental rights applied without regard to any limitations that may be imposed when the father is a mere biological father. (See In re A.S., supra, 180 Cal.App.4th at p. 362.) Justin does not show he was prejudiced by his status as a mere biological father. (Cal. Const. § VI, art. 13.)
C.
Termination of Parental Rights
Justin contends the court erred by terminating his parental rights to J.G. He argues termination of parental rights would be detrimental to J.G. under the beneficial parent-child relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).)
Jamie incorporates Justin's argument in her brief. She states that if Justin's parental rights are restored, her parental rights must also be restored. (Cal. Rules of Court, rule 5.725(g).)
At a section 366.26 hearing, the court may select one of three permanency plans: adoption, guardianship, or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) There is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; Zachary G., supra, 77 Cal.App.4th at pp. 808-809.) If the court determines the child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.); In re S.B. (2008) 164 Cal.App.4th 289, 298.)
An exception to termination of parental rights exists when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "Benefit from continuing the relationship" means "the [parent-child] 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
When the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "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 parent's rights are not terminated." (Autumn H., supra, 27 Cal.App.4th at p. 575 .)
Although the record supports Justin's assertion that he developed an affectionate relationship with J.G., there is substantial evidence to support the finding that he did not have a beneficial parent-child relationship with J.G. At the time of the section 366.26 hearing, J.G. was almost two years old. She was placed in the foster parents' care when she was less than one month old. Her foster parents met her medical and special needs. Justin had the opportunity to attend J.G.'s doctor appointments. With one exception, he did not do so. Justin did not provide any supplies or food during visits and relied on the foster mother to send diapers, snacks, toys and other items.
The social worker believed that J.G. had a positive relationship with Justin but it did not rise to the level of a beneficial parent-child relationship. The CASA observed that when the aide arrived to transport her to visits, J.G. became sad and passive and was comforted by her foster mother. After J.G. returned home, she was happy and active. The social worker stated the benefits of adoption to J.G. outweighed the detriment of terminating parental rights. The foster parents provided J.G. with a safe, loving home free from any concerns about domestic violence, physical abuse or the quality of care.
The trial court could reasonably determine J.G.'s permanent placement with skilled, attentive caregivers in a safe home outweighed any benefit she may have received from her relationship with Justin. (Autumn H., supra, 27 Cal.App.4th at p. 575; see In re Dakota H., supra, 132 Cal.App.4th at pp. 229-231.) We conclude the court did not err when it found that the beneficial parent-child relationship exception to termination of parental rights did not apply.
DISPOSITION
The orders are affirmed.
WE CONCUR: HUFFMAN, Acting P. J.O'ROURKE, J.