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In re Talon V.

California Court of Appeals, Fourth District, First Division
Mar 25, 2008
No. D051831 (Cal. Ct. App. Mar. 25, 2008)

Opinion


In re TALON V., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.V., Defendant and Appellant. D051831 California Court of Appeal, Fourth District, First Division March 25, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. J515155B George W. Clarke, Judge.

BENKE, Acting P. J.

S.V., the mother of Talon V., appeals the judgment terminating her parental rights pursuant to Welfare and Institutions Code section 366.26. S.V. contends the juvenile court abused its discretion when it summarily denied her section 388 petition and erred when it did not apply the parent-child beneficial relationship exception to adoption. (Former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i).)

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. 2006, ch. 838, § 52.) Because these proceedings occurred before the statutory change, we shall refer to the earlier version of the statute.

FACTS

Talon and his sister were the subjects of an earlier dependency proceeding. In September 2003, the San Diego County Health and Human Services Agency (Agency) filed dependency petitions under section 300, subdivision (b) after learning that S.V. had used methamphetamine during her pregnancy with Talon, who was born the previous month. S.V. and the children's father, who also had used methamphetamine, complied with their reunification plans, and the children were returned to them in early 2004. Agency continued to provide services through April 2005, when the juvenile court terminated jurisdiction.

The children's father is not a party to this appeal.

Two months later, S.V. relapsed. At that point, Talon's father had separated from S.V. and had moved back, along with Talon's sister, to the family's original hometown in Northern California. In August, Agency learned of S.V.'s relapse when she called for an ambulance while she was under the influence of methamphetamine. On August 4 Agency filed a second dependency petition on behalf of Talon, alleging he was at substantial risk of substantial harm because of S.V.'s methamphetamine abuse, among other things.

Talon was detained with the same foster mother he had during the earlier dependency case. On September 1 the juvenile court sustained the petition, as amended, declared Talon a dependent of the court and placed him in the home of his foster mother.

At first, S.V. did not comply with her reunification plan. S.V. entered three different drug treatment programs and had not completed any of them. However, by April 2006, S.V. started therapy and was making progress, was attending parenting classes and had successfully transitioned from the CRASH drug program into its aftercare component. On April 28 S.V. had 100 days of sobriety. At the six-month review hearing on May 12, the court ordered additional services for S.V.

S.V. continued to participate in the CRASH program, completed her parenting class, attended therapy and progressed to unsupervised visits. At the 12-month review hearing on August 28, the court found there was substantial probability Talon would be returned to S.V.'s care by the 18-month date and continued reunification services.

But in November, S.V. relapsed; she reported hallucinating and thinking people were out to kill her when she was under the influence of methamphetamine. S.V. did not participate in drug treatment after her relapse. The court ordered supervised visits. In December S.V. moved to Northern California.

At the 18-month review hearing on April 16, 2007, the court terminated services and set a section 366.26 hearing.

Agency assessed Talon as likely to be adopted because of his young age, good health and the desire of his caregiver to adopt him. Additionally, there were 18 approved adoptive families interested in adopting a child with Talon's characteristics.

Between November 2006 and June 2007, S.V. had visited Talon only four times: once in November; once in April; and twice in June. S.V. telephoned Talon about twice a month.

On June 1 the social worker observed a two-hour visit between S.V. and Talon. Talon did not reciprocate when S.V. told him that she loved her. During the visit, Talon told S.V. to be quiet. When the foster mother arrived, Talon told S.V. he had to leave and go "with mom." Talon did not cry when the visit ended. The social worker opined there was no significant parent-child bond between S.V. and Talon.

On September 24 Robert Kelin, a psychologist, performed a bonding study between S.V. and Talon. Kelin opined that Talon had a mild bond with S.V. and said that it was not a primary bond. Kelin opined that Talon would feel some hurt if he were to lose contact with S.V.

On October 1, 2007, S.V. filed a petition for modification under section 388, seeking return of Talon and continued services. As changed circumstances, S.V. alleged that she had made "tremendous progress in her recovery program" and had maintained her sobriety. Her counselor at the program said S.V. had accomplished "a whole turnaround." S.V. had been attending Narcotics Anonymous meetings regularly since March. S.V.'s therapist said S.V. was showing "steady progress" and "her prognosis looks good if she continues her daily commitment to her recovery supports." S.V. also alleged that returning Talon to her custody would be in his best interests because they shared a strong bond, he recognized her as his mother and it would be detrimental to sever that bond.

On October 8 the social worker observed a visit between S.V. and Talon. Talon greeted S.V. with a smile and enjoyed playing with her on the playground. Sometimes, Talon called out to S.V., " 'Look mom.' "

On Oct 9 the court denied S.V.'s section 388 petition without an evidentiary hearing. The court noted that S.V. had made "very substantial progress" in her treatment and recovery, but had not established a prima facie case that it would be in Talon's best interests to return to S.V.'s custody.

At the section 366.26 hearing, which followed immediately, the social worker opined that Talon had a stronger attachment to his foster more than to S.V. and that it would not be detrimental to Talon to terminate parental rights. Although Talon had a relationship with S.V., it was a not a significant parent-child relationship, the social worker testified. The social worker likened S.V.'s relationship with Talon as that of a relative whom the child saw occasionally. Talon had a primary relationship with his foster mother, according to the social worker.

S.V. testified she had a strong bond with Talon.

The court found by clear and convincing evidence that Talon was likely to be adopted and none of the statutory exceptions to adoption applied. The court terminated parental rights and selected adoption as Talon's permanent plan. The court designated the foster mother as the prospective adoptive parent.

DISCUSSION

I. Section 388 Hearing

S.V. contends the court erred by finding she had not made a prima facie showing that it was in Talon's best interests to return to her custody, and denying an evidentiary hearing on her 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. 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.) When 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.)

Granting a petition that alleges circumstances only in the process of changing in the hope that the child and the parent might be able to reunify some time in the future, causing a delay in providing a permanent home to the child, may not support the child's best interests. " ' "[C]hildhood does not wait for the parent to become adequate." ' " (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)

We review a summary denial of a hearing on a modification petition for abuse of discretion. (In 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 has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination . . . ." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

The court did not abuse its discretion by finding the section 388 petition did not make a prima facie showing as to Talon's best interests. The dependency proceedings had been going on for more than two years. Immediate placement of Talon with S.V. was not possible, and S.V. had already had 18 months of reunification services during this second dependency. After reunification services are terminated, a parent's interest in the care, custody and companionship of the child is no longer paramount. "Rather, at this point 'the focus shifts to the needs of the child for permanency and stability.' " (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Talon, who was four years old at the time of the hearing, had spent most of his life as a dependent child as S.V. attempted to overcome her drug problem with recurrent patterns of sobriety and relapse. The court reasonably determined that S.V. had not made a prima facie showing that it would be in Talon's best interests to further delay permanency and stability and take the risk that S.V., who had already relapsed twice, would not do so again. The court did not err by denying S.V.'s section 388 petition without a hearing.

II. Parent-Child Beneficial Relationship Exception

S.V. asserts the court erred by terminating her parental rights and choosing adoption as Talon's permanent plan because there was substantial evidence that she and Talon had a beneficial parent-child relationship. S.V. contends she has a strong bond with Talon, and severance of the bond would greatly harm him.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) 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." (§ 366.26, subd. (c)(1)(A).) The exception exists only if both prongs are met. (Ibid.)

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.)

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.) On appeal, we review the juvenile court's findings for substantial evidence; we do not reweigh the evidence and substitute our judgment for that of the juvenile court. The judgment will be upheld if supported by substantial evidence, "even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

"To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (Ibid.)

The juvenile 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Substantial evidence supported the court's finding that the benefits of preserving S.V.'s parental ties to Talon were outweighed by the permanence and stability he would gain from a permanent adoptive home.

Examining the evidence most favorably to the judgment, we conclude that although S.V. maintained regular visitation and contact with Talon, substantial evidence supports the finding she failed to meet her burden of showing a beneficial relationship. At the time of the section 366.26 hearing, Talon was four years old; he had spent more than half his life living with his foster mother, who wanted to adopt him. S.V. and Talon shared a positive relationship but it was not a parent-child relationship. S.V.'s relationship to Talon was more like that of a relative who sometimes visited him. Psychologist Kelin opined that S.V. and Talon shared a mild bond; it was not a primary bond, however.

The juvenile court did not err by failing to apply the section 366.26, subdivision (c)(1)(A), exception to termination of parental rights and adoption.

DISPOSITION

The judgment is affirmed.

WE CONCUR: NARES, J., McINTYRE, J.


Summaries of

In re Talon V.

California Court of Appeals, Fourth District, First Division
Mar 25, 2008
No. D051831 (Cal. Ct. App. Mar. 25, 2008)
Case details for

In re Talon V.

Case Details

Full title:SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 25, 2008

Citations

No. D051831 (Cal. Ct. App. Mar. 25, 2008)