Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J515776B, D Carol Isackson, Judge.
O'ROURKE, J.
Angelica R. appeals a judgment terminating her parental rights to her minor daughters, Vanessa H. and Y.C. (the minors), under Welfare and Institutions Code section 366.26. Angelica argues the court: (1) erred by summarily denying her section 388 modification petitions; and (2) lacked sufficient evidence to support its findings that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating her parental rights. We affirm the judgment.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2006 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of then six-year-old Vanessa under section 300, subdivision (b). The petition alleged Angelica's problems associated with her methamphetamine abuse placed Vanessa at risk of suffering harm. The petition further alleged Angelica had given birth to two other children who tested positive for drugs at birth and Angelica failed to reunify with them and did not participate in any drug treatment programs. At the time the Agency filed the petition, Vanessa was living with her maternal grandmother and appeared to be bonded to Angelica. The court ordered Vanessa to remain with her grandmother and permitted Angelica to live with Vanessa on the condition that Angelica enroll in the Substance Abuse Recovery Management System (SARMS) program.
In the months following Vanessa's detention, the social worker reported Angelica remained out of compliance with SARMS and continued to test positive for methamphetamines and amphetamines. The social worker believed a residential drug treatment program would be appropriate for Angelica. Concerning Vanessa's placement, the social worker recommended moving Vanessa out of her grandmother's home because Vanessa did not have a bed and was sleeping on the floor. In addition, 10 people lived in the grandmother's home. The court held an initial jurisdiction and disposition hearing and found Vanessa's placement with her grandmother was no longer appropriate and ordered she be placed in an approved foster home.
During the next month, Angelica continued to test positive for drug use. The social worker noted Angelica had been given many opportunities to participate in treatment programs but did not do so. The social worker believed Angelica did not have the motivation or ability to achieve sobriety at this time. In April 2006 Angelica submitted to the petition and the court ordered her to comply with her case plan, placed Vanessa with a relative, and ordered supervised visitation.
The Agency submitted a six-month review report stating Angelica had been discharged from SARMS and had not participated in individual therapy or parenting classes. At a contested six-month review hearing, the court ordered an additional six months of services.
During the next six months, the social worker had little contact with Angelica and Angelica had yet to participate in services. Angelica had sporadic visits with Vanessa. The first three supervised visits were cancelled because Angelica did not attend the visits. A few months later, Angelica did visit Vanessa for about 15 minutes. After one visit, Vanessa cried and told the social worker she missed Angelica and wanted to see her more. Vanessa, however, was doing well in her current placement and was receiving therapy to address the grief associated with Angelica's absence from her life. The Agency suggested moving Vanessa to live with the paternal aunt and uncle that cared for Vanessa's two younger siblings.
In April 2007 the social worker reported Angelica was pregnant and had tested positive for methamphetamines. The court held a 12-month review hearing and terminated reunification services based on Angelica's positive drug tests and lack of compliance with her case plan.
In August 2007 Angelica gave birth to Y.C. The Agency filed a petition on behalf of newborn Y.C. alleging Angelica abused drugs while pregnant and her history of drug abuse rendered her unable to care for Y.C. In the detention report, Angelica denied using drugs after April 2007. The social worker reviewed the case plan with Angelica and reiterated her need to complete an in-patient drug abuse program.
The social worker recommended the court deny Angelica reunification services with Y.C. and schedule a selection and implementation hearing. The Agency emphasized Angelica's failure to reunify with three other children and the fact that she had tested positive for drug use in October 2007. The court held a jurisdiction and disposition hearing and ordered no services be provided to Angelica and placed Y.C. in the same home as Vanessa. The court scheduled a section 366.26 selection and implementation hearing.
In the section 366.26 assessment report, the social worker reported Angelica's contact with Vanessa had been very sporadic. Initially Angelica visited Vanessa twice a week but between April and September 2007, Angelica did not schedule visits because she was in Mexico. A few months later in November 2007, Angelica requested that the social worker arrange for supervised visits with Vanessa.
Angelica started visiting Y.C. on a weekly basis starting in February 2008. Vanessa was also present at these visits. Angelica played with both of the girls and was affectionate with them. During visits, Vanessa frequently played independently from Angelica and Y.C. Vanessa did not show signs of distress when the visits ended.
The social worker assessed the minors as adoptable because of their good health and age. Vanessa was happy in her current placement. Her caregivers addressed her needs and remain committed to adopting Vanessa and had adopted Vanessa's two younger siblings. Y.C. was an adorable six-month-old baby in good health. She has lived with her relative caregivers since she was one month old and they continue to meet her physical and emotional needs. In the event these caregivers are unable to adopt the minors, there were 12 families in San Diego interested in a child with Vanessa's characteristics and 49 families interested in a child like Y.C.
Angelica filed section 388 petitions for modification, seeking to have Vanessa returned to her along with additional reunification services. Concerning Y.C., she requested six months of reunification services or alternatively, to have Y.C. placed in her care with family maintenance services. In support of her petitions, Angelica alleged she was participating in parenting classes, had enrolled in a drug treatment program, and was attending Narcotics/Alcoholics Anonymous meetings. Angelica asserted the modifications would be in the minors' best interests because the changes would allow the minors to continue bonding with her.
The court addressed the section 388 petitions. After considering Angelica's contentions, the court summarily denied the petitions. It found the petitions did not meet the prima facie requirements and there was no evidence in the petitions showing it would be in the minors' best interests to make the modifications requested by Angelica.
As to the issues for the selection and implementation hearing, the court heard testimony from Angelica. Angelica stated she visited Vanessa regularly except during the four months when Angelica lived in Mexico. She acknowledged she had visits with Vanessa twice a week for about two hours. During visits, Angelica stated she played with Vanessa or watched movies with her. The court also considered the social worker's report noting Vanessa had participated in a psychological evaluation that indicated she had formed an emotional attachment to her caregivers and wanted to be adopted by them.
The court found the minors were likely to be adopted and none of the exceptions of section 366.26, subdivision (c)(1)(B)(i) applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoptive placement.
DISCUSSION
I
Angelica contends the court erred by summarily denying her section 388 petitions seeking additional services for Y.C. or alternatively, to have Y.C. placed in her care with family maintenance services. She also seeks placement of Vanessa in her care with additional services. Angelica asserts she made a prima facie showing that circumstances had changed and the proposed modifications were in the minors' best interests.
A
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, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Id. at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] 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.)
B
As changed circumstances, Angelica alleged she had been voluntarily participating in parenting classes, had enrolled in a drug treatment program, and was attending Narcotics/Alcoholic Anonymous meetings. Admittedly, Angelica is participating in drug abuse programs and the record shows Angelica has been sober for about five months. However, the petition does not allege that significant changes had taken place that would warrant having the minors placed in Angelica's care. Angelica had a history of methamphetamine abuse resulting in four dependency cases and the loss of parental rights to two other children. During Vanessa's dependency, Angelica became pregnant with Y.C. and tested positive for drugs during this pregnancy. Angelica's recent sobriety in light of Angelica's history of drug abuse and prior failed attempts at reunification services does not show her circumstances had changed. She had yet to complete a drug treatment program and was still attending Narcotics Anonymous classes. At best, her circumstances may have been "changing." (In re Casey D., supra, 70 Cal.App.4th at p. 47.) A petition that alleges changing circumstances does not promote a child's best interests or stability for the child because it would mean delaying a permanent plan to determine whether a parent who has not reunified with the child might be able to reunify at some future time. (Ibid.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) Any changes in Angelica's circumstances were "not legally sufficient to require a hearing on her section 388 petition." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
Even had Angelica shown changed circumstances, she did not show it was in the minors' best interests to resume contact with her based on their biological connection. At the time the court considered the hearing on Angelica's modification petitions, the focus of the proceedings had shifted from family preservation to providing the minors with a safe, stable and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Vanessa had been out of Angelica's custody for more than two years at the time of the section 366.26 hearing. Y.C. was never in Angelica's custody. During the dependency, Angelica did visit Vanessa and Y.C. but the visits with Vanessa were irregular at times and Angelica never had unsupervised visits with either child. The visits were generally appropriate but the social worker did not believe Angelica occupied a parental role in the minors' lives. Instead, Vanessa's psychological evaluation showed she had developed an emotional attachment to her relative caregivers. The minors needed to feel safe at this point in the dependency and they were secure in their relative caregiver's care. Any delay in ensuring the minors the stability they deserved was not in their best interests. Because the facts alleged in Angelica's section 388 petitions would not have sustained a favorable decision on the modification petitions, Angelica was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
II
Angelica challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating her parental rights. She asserts she regularly visited the minors and the minors would benefit from ongoing contact with her.
A
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1) (A)-(E); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption preference if termination of parental rights 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." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship 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 other words, 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G., supra, 77 Cal.App.4th at p. 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
The Agency submits Angelica had regular visits with Y.C. During the two-year dependency proceedings, Angelica initially had some regular visitation with Vanessa. Through most of 2006 and 2007, however, visitation became irregular and visits ceased to take place from April through August 2007. In February 2008 Angelica resumed weekly visits with Vanessa.
Even if Angelica's visitation with Vanessa is considered to be regular, Angelica did not meet her burden of showing her relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption. Y.C. had been removed from Angelica's custody at birth after testing positive for drugs. She did not visit Y.C. for about four months and during one visit, Y.C. cried when Angelica held her. The social worker opined Angelica did not have a parental relationship with Y.C. The social worker acknowledged Vanessa appeared to have a bond with Angelica but that the relationship was not parental in nature. Further, there was no evidence of a "significant, positive, emotional attachment" between Angelica and Vanessa such that terminating the parent-child relationship would result in great detriment to Vanessa. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Rather, the evidence showed the minors' need for permanence and stability through adoption outweighed any interest in preserving parental ties. Vanessa had an emotional attachment to her relative caregivers and wanted to be adopted by them. Further, the relative caregivers are dedicated to the minors and want to provide them with a permanent home.
Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) The minors, whose needs Angelica could not meet, deserve to have their custody status promptly resolved and their placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating parental rights.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.