Opinion
F062818
01-04-2012
In re MARTHA H. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. E.H., Defendant and Appellant.
Elysa J. Perry, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Kelley D. Scott, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. JD121228-00, JD121229-00 & JD121230-00)
OPINION
THE COURT
Before Cornell, Acting P.J., Kane, J., and Franson, J.
APPEAL from an order of the Superior Court of Kern County. Jon E. Stuebbe, Judge.
Elysa J. Perry, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Kelley D. Scott, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
E.H. (father) appeals from the juvenile court's orders denying his petition pursuant to Welfare and Institutions Code section 388 and terminating his parental rights pursuant to section 366.26 as to his children, Martha H., Wendy H., and Gabriel H. Father contends the juvenile court abused its discretion in denying his section 388 petition. He argues the beneficial parent-child relationship exception is applicable to his case. We reject these contentions and affirm the juvenile court's orders.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEEDINGS
Earlier Proceedings
On May 18, 2009, petitions were filed pursuant to section 300, subdivision (b), alleging a failure of the parents to protect Martha, Wendy, and Gabriel because their mother was arrested for felony theft, possession of drug paraphernalia, and two outstanding felony warrants. At the time the children were detained, there were no local family members. There was no electricity or gas in the mother's home. The petitions alleged the mother had a drug abuse problem for the previous three to four years, she failed to provide the children with an adequate home, their residence had no electricity or gas, and the mother was incarcerated and could not care for her children.
At the detention hearing on May 19, 2009, the court granted father's request for a restraining order against the mother from coming to the father's home. On June 23, 2009, the petitions were amended to add that the mother had smoked methamphetamine up to four times a week for the previous three years.
The social worker's report for the jurisdiction hearing indicated that father's home had working electricity, was clean, and that he had ample food in the refrigerator. Father admitted he was aware that the mother had a drug problem and he still allowed her to take care of the children. Although father had given the mother money to pay her bills, he knew the mother had not paid them and that was why the electricity and gas had been shut off.
The mother reported that she was introduced to methamphetamine by father about three years previously and that this was father's drug of choice until a year ago. The mother denied using methamphetamine when her children were present. She admitted she had smoked methamphetamine up to four times a week for three years. The mother had a criminal history dating back to 2006 and had convictions for embezzlement, petty theft, and burglary. She also had several convictions for forgery.
At the jurisdiction hearing on July 1, 2009, the parents submitted the matter based on the social worker's report. The court found the allegations of the petition true. At the conclusion of the disposition hearing on July 21, 2009, the court ordered the children's removal from the parents. The court ordered reunification services for both parents. The mother was ordered to participate in counseling for substance abuse, parenting, and child neglect. Father was ordered to participate in counseling for parenting and child neglect. Both parents were ordered to submit to random, unannounced drug tests on a monthly basis. Father could have no missed tests. If father tested positive for a controlled substance, he would have to enroll in a substance abuse counseling program.
Following a mediation statement, the court found that the mother used methamphetamine four times a month rather than four times a week.
The social worker's report prepared for a review hearing stated that although the mother enrolled into a counseling class for parenting and child neglect in September 2009, she was dropped from the class in December 2009. Although the mother reenrolled in the class, she only attended three sessions and was again dropped from the class. The mother attended 14 out of 22 sessions of a course for substance abuse. The mother had two positive drug tests and eight failures to test for drugs between early September 2009 and late December 2009.
In December 2009, father completed counseling for the child neglect counseling component of his case plan. Father enrolled in counseling for parenting but was dropped for missing too many sessions. One of father's absences was due to being hospitalized. Between the middle of September 2009 and late November 2009, father had six failures to test for drugs and was presumed to have tested positive. Between November 30 and December 21, 2009, father had three negative drug tests.
At the review hearing on February 23, 2010, the court found that father had made moderate progress toward mitigating the causes for the children's out-of-home placement. Because father availed himself of services, the court ordered that reunification services continue as to father. The court found the mother made only minimally acceptable efforts under her case plan and terminated further reunification services for her.
The court ordered father to submit to unannounced drug tests until May 1, 2010. In the event of a failure to test or a positive test, father was ordered to participate in substance abuse counseling.
A social worker's report was prepared for a hearing scheduled pursuant to section 366.21, subdivision (f). In May 2010, father successfully completed a parent counseling course. On March 17, 2010, father failed to show for a drug test and was presumed to be positive for the presence of a controlled substance. Father was informed the next day that he had to enroll into a substance abuse counseling program. As of June 21, 2010, father had failed to enroll into a substance abuse counseling program.
Father's current visitation schedule with the children was weekly for one hour. The visits were supervised and reported to be of good quality, concluding without incident. The children were placed in the home of relative caregivers. The children had adjusted well under the care of the relative caregivers, liked living with them, and were doing well. The caregivers reported they were able to commit to a legal guardianship for the children should the parents fail to reunify with them. Martha H., the oldest child, told the social worker that she did not want to reunify with her father.
A social worker's report was prepared for a section 366.22 hearing. Between July 2010 and the end of September 2010, father had four negative drug tests and three failures to test which were presumed to be positive. On August 26, 2010, father enrolled in substance abuse counseling but attended only three sessions. Visitation with the children was reported to be of adequate quality. An initial adoption review was performed and it was determined that each child was appropriate for guardianship by the relative caregivers.
The social worker noted father had 18 months of reunification services. Father previously completed counseling for child neglect and parenting. Father had three presumptively positive drug tests and had failed to demonstrate that he could protect the children from the conduct of their mother. At the time of the report, father was continuing to reside with the mother. The social worker did not believe there was a substantial probability the children could be returned to father within six months.
At the December 13, 2010 hearing, the court found father had made minimal progress toward alleviating the causes for the children's placement in out-of-home care. The court found father made minimal progress in availing himself of services and that a return of the children to his custody would create a substantial risk of detriment to the children's safety and well-being. The court terminated further reunification services to father and scheduled a section 366.26 hearing for the termination of parental rights.
Section 388 and 366.26 Hearings
Father filed a section 388 petition on April 22, 2011, alleging changed circumstances because father never tested positive for use of drugs, only missed tests, and had completed drug classes. Father stated that he maintained regular visits with his children. A supplemental social study was filed on July 6, 2011. The social worker noted father's prior completion of child neglect and parenting counseling. On March 15, 2011, father completed substance abuse counseling. Father had 26 negative drug tests and failed to take drug tests 18 times.
Father was living with a parent and a roommate. Father was unemployed. If the children were returned to father's care, he would care for them through public assistance. There was enough food in the home. The hallway was missing a smoke detector. There was hot and cold water and the toilet functioned properly.
Wendy told the social worker she wanted to be with father for a day, but explained that father was unstable and she did not want to move around. Wendy liked living with her relative caregivers and wanted to be adopted. Martha liked living in a stable environment, did not want to move around from place to place, and wanted to be adopted by the relative caregivers.
Martha explained she felt closer to her mother, but would be affected if she could not see either parent again. The caregivers were highly committed to adoption but would initially pursue legal guardianship. The caregiver's wanted to see the children safe. The mother was arrested earlier in 2011 and had been deported.
The social worker noted that father was well aware that not taking drug tests would be treated as though he tested positive. The social worker noted appellant still struggled with maintaining stable housing, residing in four different residences in the past two years. The older children expressed a desire to remain in their current placement. The social worker recommended the section 388 petition be denied.
The court conducted the sections 388 and 366.26 hearings on July 6, 2011. Father testified he lived with a parent and two roommates. Father's residence had four bedrooms. Father rented two bedrooms to help pay the bills. The social worker told father he had to make some repairs to the home, including adding a fire alarm and repairing some windows. Father finished all of the repairs. Father lived at his current residence for six months. The house was rented in a sister's name. The sister was renting the residence and then transferred it to father.
The children had lived with father's parent in the past. Father explained that rooms were ready for the children to stay in. There was clothing available for the children. Father believed he had enough money to care for the children. Gabriel looks to father to play when father visits him.
Father was aware that his two daughters did not desire to live with him. Father said they could come to live with him whenever they felt ready to come back. Father explained he had a construction job where his boss paid him in cash. Father had two renters who have their own private room.
The court denied father's section 388 petition. The court found by clear and convincing evidence that it appeared the children would be adopted and terminated the parental rights of both parents.
DISCUSSION
Father argues the court abused its discretion in denying his section 388 petition. Father also argues there was not substantial evidence to support the juvenile court's finding that the parental benefit did not apply. We find both contentions to be without merit and affirm the orders of the juvenile court. Section 388 Petition
It was father's burden of proof to show there was new evidence or there were changed circumstances that made a change of the children's placement in their best interest. It was father's burden of proof by a preponderance of the evidence to show there was new evidence or changed circumstances that called for a change of the previous order denying reunification and that reunification services would be in the children's best interest. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
The mandate for liberal construction of a section 388 petition does not entitle a petitioner to avoid describing the changed circumstances or new evidence. Section 388 and the pertinent rule of court (Cal. Rules of Court, rule 5.570) require the petition to allege changed circumstances or new evidence that requires changing a prior order. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
The parent bears the burden of showing in a section 388 petition both a change of circumstance exists and that the proposed change is in the best interests of the child. A petition only alleging changed circumstances, which would lead to a delay in the selection of a permanent home to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The only changed circumstances in father's section 388 petition were that he belatedly finished substance abuse counseling and had a place to live. Father made no other showing of how his circumstances were different than they were when the juvenile court terminated reunification services. Father's employment situation was precarious. He claimed to be working with a contractor who paid him in cash, but needed renters to help pay the bills. Father planned to rely on public assistance to meet the financial needs of the children. Father presented no evidence that he had, for a sustained span of time, remained free of drug use.
Father did not meet his burden of proof to show there were changed circumstances. The juvenile court did not abuse its discretion in denying appellant's section 388 petition.
Parental Benefit Exception
Father argues that because of the close relationship he had to his children, the parental benefit exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) should have been applied in this case because terminating his parental rights would be detrimental to the children.
Appellate courts 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 an extent as to outweigh the benefits the child would gain in a permanent home with adoptive parents. Courts balance the strength and quality of the natural parent-child relationship against the security and sense of belonging the new family would provide. If severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment so that the child would be greatly harmed, only then is the preference for adoption overcome and the parents' rights are not terminated. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954 (L.Y.L.); In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
To meet the burden of proof for this exception, the parent must show more than frequent and loving contact or pleasant visits. (L.Y.L., supra, 101 Cal.App.4th at pp. 953-954.) The relationship arises from day-to-day interaction, companionship, and shared experiences. The parent must show he or she occupies a parental role in the child's life that results in a significant, positive, emotional attachment from child to parent. (Id. at p. 954.) We review the juvenile court's findings concerning the parental benefit exception under the deferential abuse of discretion standard. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Father argues he had a strong emotional bond with his children and they had lived most of their lives with him as a family. Father points out that except for Gabriel, the two girls spent more of their lives with him than with their caregivers and he remained a parent figure to them. Father notes that his visits with his children were positive and his children desired to have a relationship with him.
When the children were taken from the mother, however, father was not living with the family. He permitted the mother to have charge over the children even though he knew she was using methamphetamine and failed to provide electricity and gas in the children's home. Father took a long time to complete services. Father failed 18 times to take drug tests, knowing his failure would be treated as a test positive for the presence of narcotics. Father did not take a substance abuse course until after reunification services were terminated by the court.
Father's relationship with the children was not as strong as he portrays it. Father described his relationship with Gabriel in terms of someone who looked forward to playing with father. Martha was clearly fond of father, but missed the mother more than father and wanted to stay with her caregivers. Wendy had the closest relationship with father and indicated she would miss him if she could not see him anymore. Wendy too, however, wanted the stability that the caregivers provided her.
Father further failed to demonstrate that the parent-child relationship exception should be applied to his case. Based on the record before us, father, at most, showed a loving relationship with his children, not a relationship demonstrating that he occupied a parental role in their lives.
Father failed to demonstrate at the section 366.26 hearing that he occupied a true parental role with his children that resulted in a significant, positive emotional attachment of the children to him. Father failed to show that the juvenile court abused its discretion in rejecting the application of the parental benefit exception to his case. The juvenile court did not err in failing to apply the parental benefit exception to this case or in terminating father's parental rights.
Although we do not apply the substantial evidence test argued by father, we note that there was substantial evidence to support the juvenile court's rejection of the parental benefit exception.
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DISPOSITION
The juvenile court's orders denying father's petition pursuant to Welfare and Institutions Code section 388 and terminating his parental rights pursuant to Welfare and Institutions Code section 366.26 are affirmed.