Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Commissioner, Super. Ct. No. EJ2597B/C
McDONALD, J.
Michael S. appeals the judgment terminating his parental rights over Melanie S. and Matthew S. Michael contends the juvenile court abused its discretion by summarily denying his Welfare and Institutions Code section 388 modification petition, erred by terminating parental rights by declining to apply the beneficial relationship exception to termination (former § 366.26, subd. (c)(1)(A)), and should have ordered a permanent plan of guardianship.
Statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2007, ch. 583, § 28.5.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
BACKGROUND
In June 2005 when Melanie was almost seven years old and Matthew was almost six years old, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions because Michael and the children's mother, Denise K., used and maintained methamphetamine in the home and were arrested for possessing methamphetamine and glass pipes.
Melanie, Matthew, and their older half sister, Melissa H., were detained in Polinsky Children's Center. After a few days, all three children were moved to the home of Melissa's paternal grandmother, Ellie K. In July 2005 Melanie and Matthew's detention with Ellie became a placement. In early April 2007 Melanie and Matthew were placed in the home of paternal aunt Shelly H., who wished to adopt them.
Melissa is Denise's daughter. Ellie later became Melissa's guardian. Melanie and Matthew also have an older half brother, Mikey S., who is Michael's son. Mikey was not taken into custody because he was living with Shelly.
At the August 15, 2006, 12-month review hearing, the court terminated reunification services and set a section 366.26 hearing. Michael did not challenge this order. In December he filed a section 388 petition, which the court summarily denied in January 2007. In March he filed a second section 388 petition, which the court summarily denied on April 5. On April 13 Michael's counsel requested a rehearing. On April 13 the court confirmed its January 11 and April 5 findings and orders and terminated parental rights.
THE SECTION 388 PETITION
Section 388 allows the juvenile court to modify an order if a parent establishes, by a preponderance of the evidence, that new evidence or changed circumstances exist and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing of those two elements. (Zachary G., at p. 806.) The petition should be liberally construed in favor of granting a hearing, but "[t]he 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." (Ibid.)
Michael began using drugs in approximately 1986, starting with marijuana and progressing to methamphetamine. He was ordered into at least three treatment programs, but never stayed clean for more than three years. He believed his methamphetamine use did not affect the children, and, claiming he was "legally slow," said it put him on an "equal level" with other people.
A January 2006 psychological evaluation noted Michael was a slow reader, but of average intelligence.
In July 2005 the court ordered Michael to participate in the Substance Abuse Recovery Management System (SARMS) program. At his SARMS intake appointment that month, Michael agreed to enroll in CRASH outpatient treatment. As late as March 2006, however, he continued to maintain that methamphetamine benefited him. By August when the court terminated services, he had not cooperated with SARMS for several months.
Michael's first section 388 petition, filed in December 2006, alleged he had been drug-free for the past one and one-half years, tested clean three times between October 23 and December 1 and had supervised visits with the children. The petition requested another opportunity at reunification. In January 2007 the court summarily denied the petition, noting the drug tests spanned a short period, Michael did not acknowledge his addiction and was not actively engaged in a recovery program. Michael did not appeal this ruling.
In March 2007 Michael filed a second section 388 petition, alleging the following: he understood the negative consequences of drug use, had not used drugs since the dependency proceedings began and was re-enrolled in SARMS and a drug diversion program; he had a sponsor and attended Alcoholics Anonymous and Narcotics Anonymous meetings from May 2006 through March 7, 2007; he visited and telephoned the children regularly and had an appropriate home; in February 2006 the Agency recommended his visits be unsupervised, but in May, it falsely reported he was arrested on a new drug possession charge; the arrest was actually for a failure to appear; and after nine months in SARMS, he was denied a certificate of completion because his case worker left and SARMS maintained he had not completed the program. The petition requested reinstatement of services.
At the time of the April 2, 2007, hearing, Michael was in custody. His counsel made an offer of proof that Michael had begun treatment for attention deficit hyperactivity disorder (ADHD) and was taking prescribed medication. The court noted this would not necessarily constitute a change of circumstances, unless, for example, there was evidence the diagnosis and medication solved all of Michael's problems and rendered him capable of caring for the children immediately.
Michael was present in custody at the April 5, 2007, continued hearing. His counsel stated the ADHD diagnosis was new and a physician prescribed Wellbutrin for Michael's ADHD on March 19. Counsel argued Michael's difficulty cooperating with SARMS and CRASH could be attributed to his addiction and ADHD.
The court summarily denied the second section 388 petition for the following reasons: the dependency petitions were filed one year 10 months earlier; the focus was on the children and their need for stability, and they should not have to wait another six to 18 months in the hope Michael would address his problems; Michael had "a 16-year habit with three failed attempts at rehabilitation and recovery programs"; his claim of sobriety since the inception of the case was not credible; the only evidence of drug testing was three tests mentioned in the first section 388 petition; Michael's SARMS progress was "atrocious"; he did not assert SARMS wrongfully denied him a certificate before he filed his second section 388 petition; supervision of visits resumed because he stopped complying with SARMS, not because he was arrested; and there was no allegation he had complied with the therapy component of his reunification plan. His circumstances were, at best, changing, and he was in custody with no certain release date.. The court had no authority to reinstate services and returning the children to Michael immediately "would be nothing more than a grand experiment."
On April 13, 2007, Michael's counsel filed a declaration stating CRASH now acknowledged Michael was entitled to a certificate of completion. Michael enrolled in CRASH on July 25, 2005, as a SARMS referral and attended the program through April 20, 2006. During that time, his probation officer also referred him to CRASH as part of a drug diversion program. At CRASH, Michael signed drug diversion attendance sheets, which CRASH apparently did not find earlier.
Michael does not explain why his second section 388 petition refers to a SARMS certificate and counsel's declaration refers to a CRASH certificate.
The court considered the information from the April 5, 2007, hearing and the declaration of counsel. It noted the second section 388 petition was based on the untimely contention Michael did not receive reasonable services and reconfirmed its April 5 findings and orders. This was not an abuse of discretion.
The second section 388 petition's allegations of a change of circumstances regarding substance abuse were inadequate. Michael's claim of sobriety since the inception of the case was false, his three drug tests occurred over a period of fewer than three months in 2006, and his claim that SARMS─or CRASH─wrongfully denied him a certificate came at least seven months after the asserted denial. The petition said little about his psychological state and nothing about his failure to progress in psychological counseling.
For example, in April 2006 Michael submitted a nonhuman sample of urine for testing. In May he submitted a cold sample. The sample was rejected, and he was offered the opportunity to drink liquid and retest. He agreed, then left the testing facility without providing a new sample.
The second section 388 petition made no prima facie showing as to the children's best interests. Michael claimed to have an appropriate home, but was in custody with no guaranteed release date. The dependency case had been pending for one year 10 months. The focus was on the children's need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317, 324.) Their immediate placement with Michael was not possible, and ordering a new reunification plan would have delayed the fulfillment of their need for permanency and stability for at least six more months. The court did not abuse its discretion by summarily denying the second section 388 petition.
THE BENEFICIAL RELATIONSHIP EXCEPTION
Former section 366.26, subdivision (c)(1), allows termination of parental rights upon clear and convincing evidence of adoptability. An exception exists if "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Former § 366.26, subd. (c)(1)(A).) A beneficial relationship is one that "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.) The existence of this relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.)
Examining the evidence most favorably to the judgment, we conclude that although Michael maintained regular visitation and contact, substantial evidence supports the finding he failed to meet his burden of showing a beneficial relationship. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) At the time of the section 366.26 hearing, Melanie was eight and one-half years old and Matthew was seven and one-half years old. They were in Michael's custody until one year 10 months before the hearing. Michael and the children clearly loved each other. The children's first choice was to live with their parents, although that preference did not seem as strong as their wish to live with Melissa.
In the week before the hearing, Shelly took the children to visit Michael in jail. He was released two days before the hearing, but had not visited or called the children.
The social worker observed seven one-hour visits between Michael and the children. During these visits, Michael had limited interaction with the children and did not exhibit much interest in their lives or their emotional well-being. He did not usually set limits or take an active parental role. When visits ended, the children ran to their caretaker and left willingly.
Shelly also observed Michael with the children. She testified he played with them, participated in school functions, rode bikes with them and made them sandwiches. Although he helped with their homework, he apparently did not initial Melanie's homework as her teacher required. Shelly believed Michael acted as a father and had a good relationship with the children.
The social worker believed Michael's relationship with the children was positive, there would be some benefit in maintaining it and the children would probably be sad if they did not see Michael. She believed the sadness would not be longstanding, however, and the stability and permanency the children would achieve by being adopted far outweighed the benefits they derived from their relationship with Michael. The caretakers were committed to maintaining Melissa's involvement in Melanie's and Matthew's lives, and the social worker did not believe adoption would interfere with the sibling relationship. She also believed Shelly would supervise visits with Michael, and the children would continue to have a relationship with him. The juvenile court did not err by failing to apply the former section 366.26, subdivision (c)(1)(A), exception to termination of parental rights.
GUARDIANSHIP
Michael contends even if former section 366.26, subdivision (c)(1)(A), does not apply, the court should have ordered a permanent plan of guardianship, which Shelly was willing to undertake. He contends this would allow the continuance of his close and positive relationship with Melanie and Matthew, which the Agency believed would benefit them, and guardianship would allow permanency and stability. Because there was no challenge to the adoptability finding, and former section 366.26, subdivision (c)(1)(A), does not apply, we must affirm the termination of parental rights. (Former § 366.26, subd. (c)(1).)
DISPOSITION
Judgment affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.