Opinion
NOT TO BE PUBLISHED
APPEALS from judgments and an order of the Superior Court of San Diego County, Gary M. Bubis, Referee. Super. Ct. No. EJ02539A/B
NARES, J.
S.P. and Julian P. appeal judgments of the juvenile court terminating parental rights to their twin daughters, J.P. and L.P. Julian also appeals an order summarily denying his petition for modification under Welfare and Institutions Code section 388. We affirm the judgments and order.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
J.P. and L.P. (the children) were born in February 2003 to S.P. (S.) and Julian P. (together, the parents). On February 14, 2005, the San Diego Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b). The Agency alleged L.P. had suffered an eye injury during an altercation between the parents, and both children were at substantial risk of harm due to the parents' lengthy history of mutual domestic violence. The children were adjudicated dependents of the juvenile court, and the court ordered a plan of family reunification.
At the six-month review hearing, the court terminated reunification services and referred the case to a permanency plan hearing under section 366.26. This court detailed the early history of the proceedings in its unpublished opinion, Julian P. et al. v. Superior Court (Feb. 14, 2006, D047443([nonpub. opn.]), in which we denied the parents' petitions for relief under California Rules of Court, rule 8.452. We do not repeat those details here, but instead focus on facts pertinent to this appeal.
Further rule references are to the California Rules of Court.
On March 10, 2006, Julian filed a section 388 petition for modification. He asked the court to vacate the section 366.26 hearing and place the children with him or extend the reunification period and authorize unsupervised visitation. Julian asserted his circumstances were changed in that he had made substantial progress in therapy and continued to participate in services after the reunification period ended. He alleged the modification was in the children's best interests because he had demonstrated his ability to be a good parent and was able to provide a stable, loving home.
S. filed a section 388 petition on March 22, 2006. She alleged the she had completed a parenting class and was voluntarily participating in a substance abuse treatment program and a domestic violence program.
On July 13 and 14, 2006, the court held a contested hearing on the parents'section 388 petitions. The court dismissed S.P.'s petition. The court granted Julian's section 388 petition, extended reunification services to the 18-month review date, and authorized unsupervised visitation on the explicit condition S. not be present during Julian's unsupervised visits with the children.
S.P. appealed the denial of her section 388 petition. This court affirmed the trial court's order. (In re J.P., et al. (March 23, 2007, D049226) [nonpub. opn.].)
On July 26, 2006, the children's attorney filed a section 388 petition requesting the court modify the order granting Julian unsupervised visitation. The petition alleged the children reported that S. went to the movies with them during their first unsupervised visit with Julian on July 18. When S. denied she had been present, L.P. said, "[S.] go to movies see CARS."
At a special hearing, the court ordered supervised and reasonable visitation between the children and Julian. S. was not to be present during Julian's visits with the children.
On October 3 and November 6, 2006, the court held hearings on the children's section 388 petition and the 18-month review. Julian testified that, for the past four or five months, he had lived in San Diego with a former coworker. S. lived in Santee. Julian had a good job and paid S.'s rent and living expenses. Julian did not pay rent in San Diego but helped his coworker with expenses.
Julian denied S. was present during his unsupervised visit with the children. He testified she telephoned him eight times during the visit. He loved his wife but he was going to do whatever he had to do to get the children back, "[n]o questions asked." If the children were returned, he would live at S.'s apartment in Santee and she would move to Oxnard to live with her grandmother.
Maria Gomez, an apartment building manager, testified Julian and S. lived together in an apartment in Santee. They each paid rent and signed the lease. Gomez saw Julian check his mailbox daily. Kathy Richmon, the CEO of the Angel's Foster Family Agency, testified she overheard S. tell Julian, "Well, they think we are broken up, or at least supposedly broken up." Steven Tess, Julian's therapist, testified the parents were separated, but Julian loved S. and wanted to maintain their relationship.
The court found that the parents were living together and S. was present during Julian's unsupervised visit on July 18, 2006. The court noted that even if S. had not been present, the fact that she telephoned Julian eight times during the visit showed she was unable to control herself. The parents' history of domestic violence was very serious, and the dynamics of their relationship still showed a strong potential for domestic violence.
The court granted the children's section 388 petition to modify visitation. The court found that Julian had made substantive progress with his case plan but returning the children to his custody would create a substantial risk of detriment to them. The court terminated reunification services to Julian and set a section 366.26 hearing for January 19, 2007.
S.'s reunification services were terminated at the six-month review hearing and had not been reinstated.
Julian filed a section 388 petition on January 19, 2007. He requested the court vacate the section 366.26 hearing and place the children in his care. As changed circumstances, Julian alleged S. no longer lived with him and he had made further progress in therapy. He asserted he had a significant bond with the children, and the continuation of that bond was in the children's best interests.
The court denied an evidentiary hearing on Julian's section 388 petition. The court reasoned that S. was a substantial danger to her children. As long as S. and Julian stayed together in some type of relationship, the court could not make a finding of changed circumstances. The parents' alleged separation was relatively recent, and evidence S. had moved away was not compelling in view of the parents' previous efforts to keep the court from knowing about their on-going contact.
S. was convicted of driving under the influence (DUI) in August 2005, her second DUI offense within five years. After her 2005 conviction, S. was incarcerated in a psychiatric unit because of suicidal ideation. In November 2006, S. was incarcerated for another DUI offense.
At the section 366.26 hearing, the social worker opined there was a consistent bond between the children and Julian, but their primary attachment was to their foster parents. The children and Julian shared a reciprocal attachment in that Julian adequately and consistently responded to the children's needs throughout the proceedings. The children also had a bond with S., but displayed anxiety, anger and difficult behaviors when they were with her. S. was not able to control the children, and she ignored their requests for attention. The social worker did not believe the children would suffer great detriment if parental rights were terminated. The children had loving and playful relationships with the foster parents, and they were thriving, happy and well adjusted in their care.
The court found that Julian had an emotionally significant relationship with the children and that he was a "good father" to them during their visits. It noted Julian had frequent and loving contact and warm relationships with the children. However, in view of the legislative preference for adoption, the court could not apply the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A). The court did not comment on the children's relationships with S.
The court found that the children were likely to be adopted and no exceptions applied to preclude termination of parental rights. It determined adoption was in the children's best interests, and terminated parental rights.
DISCUSSION
I
The Court Did Not Abuse Its Discretion When It Summarily Denied Julian's Section 388 Modification Petition
Julian contends the court erred by arbitrarily denying a hearing on the merits of his section 388 petition seeking the children's return to his care. He asserts that his section 388 petition stated a prima facie case of changed circumstances in that he and S. had separated. Julian asserts the court misstated the standard of proof required to show a prima facie case, as set forth in In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799 (Hashem H.). He further maintains the court violated his due process rights to present and challenge contested evidence in a full and fair hearing. (In re Clifton V. (2001) 93 Cal.App.4th 1400, 1404 (Clifton V.); In re Matthew P. (1999) 71 Cal.App.4th 841, 850-851.) S. joins Julian's argument.
The Agency contends the court did not abuse its discretion when it denied an evidentiary hearing on Julian's section 388 petition. The Agency asserts the court may consider its own prior determination of the credibility of witnesses when it considers whether the alleged facts are sufficient to sustain a favorable decision on the petition.
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 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); 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; Hashem H., supra, 45 Cal.App.4th at pp. 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.) Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)
In November 2006, the court found that the parents were living together, and determined their relationship was detrimental to the children. Julian asserts the factual allegations that he and S. were no longer living together and he had made further progress in therapy were sufficient to establish a prima facie case of changed circumstances under section 388. Julian asserts the court applied an erroneous standard of proof to determine whether the petition stated a prima facie case. (Hashem H., supra, 45 Cal.App.4th at pp. 1798-1799.)
In support of his assertion, Julian relies on the court's remark that "the fact that there may be some evidence that the mother has moved away from [Julian] is not compelling to the court at this point in time." Julian contends this statement shows the court misstated the standard of proof required to obtain an evidentiary hearing on his section 388 petition. He argues he did not need to present "compelling" evidence to obtain an evidentiary hearing, but show only that the factual allegations, if proved, would sustain a favorable decision on the petition. (Zachary G., supra, 77 Cal.App.4th at p. 806.)
Julian further contends he was deprived his due process rights to a full and fair hearing. (Clifton V., supra, 93 Cal.App.4th at pp. 1404-1405 [a petitioner under § 388 has a due process right to confront and cross-examine witnesses when there is a contested hearing with an issue of credibility].) He asserts the court should have allowed him the opportunity to prove that he was no longer physically or emotionally involved with S. and therefore was able to protect and care for the children.
Julian correctly states the standard of proof required to meet the requirements of a prima facie case under section 388. We also agree that when the parties have established a prima facie case of changed circumstances, there is a due process right to confront and cross-examine witnesses, and the court may not conduct an "evidentiary" hearing on the basis of the parties' written declarations and court reports. (In re Matthew P., supra, 71 Cal.App.4th at pp. 850-851; Clifton V., supra, 93 Cal.App.4th at pp. 1404-1405.) However, we disagree with Julian's assertion the court abused its discretion when it determined that the section 388 petition did not state a prima facie case of changed circumstances and the children's best interests would not be promoted by the proposed change of order. (§ 388, subds. (a), (c); rule 5.570(d).)
In the petition, Julian alleged "the mother has provided verification that she does not live with the father" and attached an affidavit from S.'s grandmother in which the grandmother stated that S. was living with her and would continue to live with her. Julian also alleged he "continued to make progress in therapy." Construing the petition liberally, the court could have reasonably determined Julian did not allege facts sufficient to show that the parents' relationship would not continue, despite their separate residences, or that Julian had resolved the issues that prevented him from protecting the children from S.'s psychological and substance abuse problems.
In view of the recently contested hearing on the same issue and the court's finding the parents were living together, despite their assertions to the contrary, the court reasonably determined that Julian's request to relitigate the same issue on slightly different facts, without more, was insufficient to establish a prima facie case of changed circumstances. The court explicitly stated the dynamics of the parents' relationship was a long-standing problem, and the court did not have a "concrete offer of proof" to allow it to find the problems had been resolved. Thus the court properly applied the correct standard used to determine whether a section 388 petition stated a prima facie case of changed circumstances. (See Marilyn H., supra, 5 Cal.4th at p. 310; Hashem H., supra, 45 Cal.App.4th at pp. 1798-1799; Zachary G., supra, 77 Cal.App.4th at p. 806.)
We conclude the court did not err when it determined the facts alleged in the petition, if proved, would not allow the court to safely return the children to Julian's care. The court reasonably exercised its discretion when it determined the facts alleged in Julian's section 388 petition did not state a prima facie case of changed circumstances or the children's best interests would be promoted by a change of order. (§ 388, subds. (a), (c); rule 5.570(d).)
II
Substantial Evidence Supports the Court's Finding the Beneficial Parent/Child Exception Under Section 366.26, Subdivision (c)(1)(A) Did Not Apply
Julian contends the court erred when it determined the beneficial parent/child relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(A) did not apply. He contends substantial evidence does not support the court's finding that adoption outweighed the benefit from continuing the parent/child relationships.
S. does not challenge the court's finding that she did not have a beneficial parent/child relationship with the children. She joins Julian's argument, and asserts if the judgment terminating his parental rights to the children is reversed, her parental rights must be reinstated. (In re DeJohn B. et al. (2000) 84 Cal.App.4th 100, 110.)
The Agency contends Julian has not met his burden on appeal to show the court erred when it determined the benefit to the children from continuing their relationships with Julian did not outweigh the benefit the children would receive in an adoptive home. The Agency contends the children's relationships with Julian, although pleasant, friendly and emotionally significant, did not rise to the level of a primary relationship protected under section 366.26, subdivision (c)(1)(A).
At a permanency plan selection and implementation hearing under section 366.26, the court may order one of three alternatives—adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the 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.)
Once the court determines a 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.) The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.); Zachary G., supra, 77 Cal.App.4th at p. 809.)
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.) The party challenging the ruling bears the burden of showing there is insufficient evidence to support the ruling. (In re Geoffrey G., supra, 98 Cal.App.3d at p. 420.)
Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We recognize that interaction between parent and child will usually confer some incidental benefit to the child. (Autumn H., supra, 27 Cal.App.4th at p. 575.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
When applying the beneficial parent/child relationship exception, the court balances the strength and quality of the parent/child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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.)
In reviewing the court's application of the balancing test first set forth by this court in Autumn H., we accept the trial court's findings the children had beneficial relationships with Julian. The court specifically noted their relationships were warm, loving and "emotionally significant." Although Julian was a "good father" to the children during visitation, he had been unable to resolve his complicated and detrimental attachment to S. and reunify with the children.
Julian argues the court's finding that the children would not be harmed by termination is unreasonable in view of the social worker's recommendation the children have approximately three months of therapeutic "closure" visits with Julian to mitigate the effects of severing the parent/child relationship. However, Julian ignores the social worker's testimony that such therapeutic visits were not essential and she would recommend adoption even if such sessions did not occur.
Here, substantial evidence shows the children would not be greatly harmed if their relationships with Julian were terminated. The social worker opined that the children would not suffer great detriment if parental rights were terminated because their primary attachments were to the foster parents, not to Julian. Because of their ages, the children required a safe, stable, permanent home. Although the record shows there were positive aspects to the children's interactions with Julian, it also shows continued contact was not without detriment to the children. They were affected by the turmoil of the case. After visitation, the children's behaviors regressed and they had bad dreams, stomach problems and toileting accidents. Thus, the court could draw the reasonable inference that any incidental benefit the children might gain through occasional visits with Julian would be outweighed by the emotional security and stability they would receive in an adoptive placement. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
On this record, we cannot conclude the court erred when it found that the children would not be greatly harmed by the severance of their relationships with Julian. The parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229; In re Derek W., supra, 73 Cal.App.4that p. 827.) The court was entitled to rely on the social worker's opinion the children would not be greatly harmed by termination of parental rights, and to disregard any evidence to the contrary. The testimony of a single witness can be sufficient to uphold a judgment. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.)
The record supports the conclusion that the children, in view of their young ages and the length of time they had lived with the foster parents, would benefit from the permanency and stability of the adoptive home and would not be greatly harmed by the termination of the parent/child relationship. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The court's findings are supported by substantial evidence, and we must affirm the judgments. (Id. at p. 576; Zachary G., supra, 77 Cal.App.4th at p. 809.)
DISPOSITION
The judgments and order are affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.