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In re Nicolas

Court of Appeals of California, Fourth District, Division One.
Nov 12, 2003
No. D042292 (Cal. Ct. App. Nov. 12, 2003)

Opinion

D042292.

11-12-2003

In re NICOLAS W. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. B.P., Defendant and Appellant.


B.P., the mother of Nicolas W. and E.W., appeals the termination of her parental rights pursuant to Welfare and Institutions Code[] section 366.26. B.P. contends the juvenile court should have granted an evidentiary hearing on her petitions to modify (§ 388) the courts earlier order terminating reunification services. B.P. also contends the court erred by failing to apply the beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(A).) We affirm.

All statutory references are to the Welfare and Institutions Code unless otherwise specified.

PROCEDURAL AND FACTUAL BACKGROUND

In June 2001, B.P., who was pregnant with E.W., was arrested for transporting more than 400 pounds of marijuana. On June 28, B.P. tested positive for amphetamines during a prenatal visit. In July, B.P. gave birth to E.W., and the following day the San Diego County Health and Human Services Agency (Agency) took the infant and her two-year-old brother, Nicolas, into protective custody. The Agency filed petitions under section 300, subdivision (b), on behalf of Nicolas and E.W., alleging B.P. was unable to provide care for them because of her substance abuse. On July 9, the juvenile court dismissed the petitions because there was no evidence substantiating B.P.s positive test for amphetamines; the children were returned to B.P.s care.

On November 8, 2001, B.P. began serving a jail sentence after her conviction of transporting marijuana. B.P. had given money to a couple to take care of her children while she was in jail; she expected to be released after about three months. When B.P. learned the couple was moving from motel to motel and had punished Nicolas by putting him inside a closet, B.P. asked her mother (the maternal grandmother) to retrieve the children. However, the maternal grandmother was unable to care for them and she contacted Agency. The children were taken into protective custody.

On November 20, 2001, Agency filed new petitions on behalf of Nicolas and E.W. under section 300, subdivision (g), alleging B.P. was incarcerated and unable to arrange adequate care for the children and the whereabouts of the childrens fathers were unknown.[] On December 21, the court sustained the petitions and ordered services for B.P. The court also ordered B.P. to participate in Substance Abuse Recovery Management System (SARMS).

Agency was never able to establish the identities of the childrens fathers.

While in jail, B.P. enrolled in two parenting classes, attended a domestic violence class, completed an Options for Recovery class and attended one 12-step meeting.

After B.P. was released from jail in February 2002, she did not comply with her case plan and was inconsistent in visiting the children. B.P. tested positive for methamphetamine twice in March and once in April. On numerous occasions, B.P. did not show up for tests. In May, B.P. did not contact her SARMS worker. On May 29, the court found B.P. guilty of contempt and sentenced her to five days in custody. B.P. asked for a referral to Dependency Drug Court, which has more stringent rules and supervision. B.P. tested positive at SARMS twice in June. On June 27, B.P. admitted to the Dependency Drug Court judge that she had relapsed the day before. The court sentenced B.P. to two days in custody. In addition to using drugs that summer, B.P. became homeless and failed to follow through with visitation. B.P. was arrested on July 22 for failing to attend Dependency Court and remained in jail until September 19, when she entered KIVA, a residential drug treatment program.

At the contested six-month review hearing on September 30, 2002, the court found a return of the children to parental custody would be detrimental, there was not a substantial probability of return within the next six months, and the mother failed to regularly participate and make substantive progress in her court-ordered treatment plan. The court found services had been reasonable, terminated reunification efforts and ordered a section 366.26 hearing.

On October 12, 2002, B.P. resumed her supervised visits with the children, who initially did not interact much with B.P. and had no difficulty separating from her. At later visits, the children warmed up and appeared comfortable with B.P.

On March 17, 2003, B.P. filed section 388 petitions requesting services be reinstated and the section 366.26 hearing be vacated. B.P. alleged she was in compliance with Dependency Drug Court and SARMS, participating in various parenting and other programs at KIVA, and expecting to enter the final stage of KIVA, which would be a transition period to obtain employment and a sober living environment.

On April 29, 2003, the court denied the section 388 hearing without an evidentiary hearing, finding the petitions did not make a sufficient prima facie showing.

The contested section 366.26 hearing was held on May 23, 2003. The court received into evidence Agencys reports and two bonding studies. One study, which examined whether the children were bonded to the foster parents, concluded the children and foster parents were bonded with a strong reciprocal attachment and a loving relationship. The other study, which examined whether the children were bonded to B.P., concluded that Nicolas had some bonding with B.P., but E.W. did not.

Social worker Elisa Kendall testified both children were adoptable and there was no parent-child relationship between them and B.P.

B.P. testified that she had worked hard to get her children returned to her and they were bonded to her. B.P. pointed out that they called her "mom" and were affectionate with her at visits.

The court found it was likely the children would be adopted and that none of the exceptions to adoption applied. The court terminated parental rights and found adoption was in the childrens best interests.

DISCUSSION

I. Section 388 Petition

B.P. contends the court erred in denying her request for an evidentiary hearing on her section 388 petitions. The contention is without merit.

Section 388 provides that a parent may petition the court for a hearing to change, modify or set aside any previously made order of the court on the grounds of changed circumstances or new evidence. The statute goes on to state: "If 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 . . . ." (§ 388, subd. (c).)

However, if the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. (Cal. Rules of Court, rule 1432(b).) The parent must make a prima facie showing to trigger the right to a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) "A `prima facie showing refers to those 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; see also In re Daijah T. (2000) 83 Cal.App.4th 666, 673.) The petitioners burden includes making a prima facie showing that the requested change would promote the best interests of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

A juvenile court has extremely broad discretion in deciding whether to grant an evidentiary hearing on section 388 petitions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 805-808.)

A juvenile courts ruling on a section 388 petition should not be reversed absent an "`. . . "arbitrary, capricious, or patently absurd determination [citations.]" [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

On this record, we find no abuse of discretion. The juvenile court properly could conclude there was no prima facie showing of changed circumstances such that a renewed reunification effort and the resultant postponement or cancellation of the section 366.26 hearing were in the childrens best interests.

As changed circumstances, B.P. alleged she was maintaining her sobriety, enjoying success in the residential drug treatment program and compliant with her case plan. Assuming these allegations were true and that they would have been proven at an evidentiary hearing, "a change of circumstance warranting renewed reunification efforts . . . would not have been established." (In re Edward H., supra, 43 Cal.App.4th at p. 591.) To establish a prima facie case of changed circumstances, B.P. needed to allege the circumstances that caused the removal of her children were no longer present. She failed to do this.

On this record, the best showing B.P. could make was one of changing circumstances, far short of what is required by section 388 to warrant an evidentiary hearing on the matter.

InIn re Casey D. (1999) 70 Cal.App.4th 38, 47-49, this court noted the difference between changed and changing circumstances where a mother had been in a drug rehabilitation program for a few months before filing a section 388 petition just before a section 366.26 hearing. The trial court denied the petition, finding the mother was trying to rehabilitate, but had not shown changed circumstances. We affirmed, stating the parent must show the circumstances had changed, not that they are merely changing. "A petition which alleges merely changing circumstances and would mean delaying the selection and implementation of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. [Citation.] `"[C]hildhood does not wait for the parent to become adequate." [Citation.]" (Id. at p. 47.)

The dependencies of Nicolas and E.W. started in November 2001 with the filing of the sustained section 300 petitions. But B.P.s drug problems in relation to these children came to light four months earlier with the positive amphetamine test during her pregnancy with E.W. and the marijuana transporting incident. Yet, B.P. did not begin to seriously address her substance abuse problem until September 2002, about the time reunification services were terminated. For more than a year, B.P. took no action until it was almost too late. Given B.P.s long-standing drug history,[] B.P.s recent successes in maintaining her sobriety — laudable as they were — merely showed she may actually be changing her behavior. They did not demonstrate she had changed. This is a case of changing circumstances, not changed circumstances.

B.P. told a social worker that she first used methamphetamine when she was 15 years old.

Moreover, the petitions did not make a prima facie showing that returning the children to B.P.s custody was in their best interests. At this point — on the eve of the section 366.26 hearing — the interest in stability and permanence for the children was paramount. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256.) Nicolas was two years old and E.W. was a newborn when they were taken into protective custody in July 2001. That case was dismissed, but four months later, the children were again taken into protective custody after B.P.s childcare arrangements for her jail time proved disastrous. Since then, the children had two placements, the latter beginning in August 2002. The children have received excellent care and have flourished in this home. Their need for permanence and stability were being met by the foster parents, who wished to adopt them. The children referred to the foster parents as "Mommy" and "Daddy" and were bonded to them. The childrens need for stability and permanence would not have been promoted by reinstituting reunification services or returning them to B.P. in the hope that she might be able to provide a permanent home for them in the future. It would not have been in the childrens best interests to have their status delayed by modifying the previous order; accordingly, the court was justified in denying a full hearing. (See In re Elizabeth M. (1997) 52 Cal.App.4th 318, 323.)

II. Beneficial Relationship Exception to Adoption

B.P. contends the court erred in not finding the "beneficial relationship" exception to adoption did not apply in this case. The contention is without merit.

Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is any substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolve all conflicts in favor of the prevailing party, and draw all legitimate inferences to uphold the lower courts ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is adoptable. (§ 366.26, subd. (c)(1).)

The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1); Evid. Code, § 115.)

The beneficial relationship exception is codified at section 366.26, subdivision (c)(1)(A), which provides that once the court finds the child adoptable the court shall not terminate parental rights if it finds termination would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The exception applies only if both prongs are met.

The record contains substantial evidence that neither prong of section 366.26, subdivision (c)(1)(A) was met.

Throughout the childrens dependencies, B.P.s visitation with them had been inconsistent. B.P. was in jail on the marijuana transportation charge from November 8, 2001 until February 22, 2002. During that time, the children visited B.P. twice a month. B.P. visited the children once between February 22 and July 22, when she was arrested again. During this jail stay, B.P. did not have any visits with the children. B.P. entered KIVA on September 19, and began visiting the children in mid-October.

Even if we were to put aside the long periods of no visitation and just consider B.P.s regular visitation beginning in October 2002, there is substantial evidence that the benefit to the children from continuing the child-parent relationship with B.P. would not outweigh the benefit they would gain from the permanence of an adoptive home.

In In re Autumn H. (1994) 27 Cal.App.4th 567, 575, this court explained that to come within beneficial relationship exception adoption, a parent must show the "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." (Italics added.) The court must balance "the strength and quality of the . . . parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors, include "[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 parent and child, and the childs particular needs." (Id. at p. 576.) Further, the parent must show the benefit arises from a parental rather than caretaker or friendly visitor relationship. We reaffirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist." (In re Casey D., supra, 70 Cal.App.4th at p. 51, italics added.)

B.P. did not have a parent-child relationship with either child. For 18 months, the children had been in out-of-home care. E.W. had lived with her mother for a total of four months. Nicolas had lived with B.P. for a total of 30 months. After she resumed visiting the children, B.P. did not assume a parental role. B.P. was more like a friendly visitor, who brought treats and played with them. Nicolas even referred to B.P. as his friend. The children did not look to B.P. to meet their needs. The relationship between B.P. and the children fell far short of the beneficial (to the child) relationship that section 366.26, subdivision (c)(1)(A) envisions. Notwithstanding B.P.s love for the children, the benefit from continuing the childrens relationship with her would not outweigh the benefit the children would gain from the permanence of an adoptive home.

DISPOSITION

The judgments are affirmed.

WE CONCUR: McCONNELL, P. J. and HALLER, J.


Summaries of

In re Nicolas

Court of Appeals of California, Fourth District, Division One.
Nov 12, 2003
No. D042292 (Cal. Ct. App. Nov. 12, 2003)
Case details for

In re Nicolas

Case Details

Full title:In re NICOLAS W. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:Court of Appeals of California, Fourth District, Division One.

Date published: Nov 12, 2003

Citations

No. D042292 (Cal. Ct. App. Nov. 12, 2003)