Opinion
E054462 Super.Ct.No. J225184
02-08-2012
In re E.H., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.H., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Messer, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.
This is an appeal by S.H. (hereafter mother) from the trial court's order denying her Welfare and Institutions Code section 388 petition and then terminating her parental rights to her now three-year-old son E.H., after first finding him adoptable. Mother raises two claims in this appeal. First, she contends the trial court abused its discretion in denying her section 388 petition. Next, she contends the beneficial relationship exception to parental rights termination applies in this case. We conclude mother's claims both lack merit. Therefore, we will affirm.
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
The parties do not dispute the pertinent factual or procedural details. Therefore we take most of those details from mother's opening brief.
Mother was 17 years old and a dependent child of San Bernardino County when in January 2009 she met with a county social worker and asked to have her infant son, E.H., placed in the system. Mother became agitated during the course of her conversation with the social worker, and despite her initial request, she ultimately threatened to kill herself and E.H. if he was put "in the system." Although mother apologized for her outburst, the social worker nevertheless decided to place E.H. in protective custody.
Mother became a dependent child in 2006 after her own adoptive mother abandoned her at Loma Linda Behavioral Medical Center.
Children and Family Services (CFS) filed a section 300 petition with respect to E.H. on January 9, 2009. In that petition, CFS alleged in pertinent part that E.H. came within subdivisions (b) and (g) because mother had unresolved mental health issues including bipolar disease, dysthymia, impulse control, depression, aggression, angry mood swings, and impulsive and compulsive acting out. CFS alleged that mother refused to take medication that had been prescribed to help address her mental health problems. The juvenile court detained E.H. following a hearing on January 14, 2009, at which it also placed the child in foster care, and ordered supervised visitation at least once a week with mother.
Before the jurisdiction and disposition hearing, mother told the social worker that she might be suffering from postpartum depression which could in part account for her making poor choices. The social worker reported that mother was taking her prescribed medication and would be starting therapy to address her mental health issues. Mother appeared to struggle with caring for E.H., and his foster mother reported that mother often wanted her to take over E.H.'s care.
At the jurisdiction and disposition hearing on March 5, 2009, the court made true findings on the section 300 allegations. The court ordered CFS to provide family reunifications services to mother and E.H. Shortly after the hearing, CFS placed E.H. in the same foster home where mother was placed.
After his placement with her foster family, mother took over providing care of E.H. In June, the court granted mother up to six hours per day of unsupervised time with E.H. The foster mother reported mother was doing a good job handling all her responsibilities. Mother was working hard to graduate from high school before her 19th birthday. Mother told the social worker that she wanted to retain her dependency status until she finished high school because mother recognized that she was not ready to "go it on her own."
By the time of the six-month review hearing on September 8, 2009, mother had completed her case plan and was E.H.'s primary caregiver. Due to a break down in the relationship between mother and the foster mother, CFS moved E.H. and mother to a new foster home. Mother was taking her prescribed medication and appeared to be stable and making progress in many areas of her life. As for E.H., the social worker described him as a happy baby, very inquisitive, and meeting his developmental goals. He appeared to be bonded with mother, he cried for her and liked to be either by her side or in her arms at all times. E.H. looked to mother to provide his care and fulfill his needs.
At the six-month review hearing the court found mother had made substantial progress toward alleviating the problems that led to E.H.'s placement in foster care. The trial court ordered E.H. returned to mother's custody under a plan of family maintenance.
After E.H. was returned to mother's care, the social worker became concerned that mother was not up to the task of independently caring for the child. The social worker described mother's care as "inconsistent." Mother was very attentive at times and at others appeared not to have either the ability or desire to care for E.H. The social worker reported that mother "had developed a pattern of being manipulative," she made excuses for her behavior and blamed others when her apparent schemes did not work.
At a semi-annual review hearing on March 3, 2010, the court ordered continued family maintenance services for mother. On March 12, 2010, CFS placed mother and E.H. in a new foster home. The new foster parents reported that mother was doing well, she was helpful and learning to parent E.H., and her progress in school had improved. They offered to provide transitional support for mother if her progress continued.
At a transitional planning meeting on July 27, 2010, mother told the social worker and her foster parents that taking care of E.H. was much harder than she thought it would be. Mother thought it would be better for E.H. if the foster parents became his legal guardians. The next day, mother moved to a new foster placement and E.H. remained with her former foster parents. CFS filed a section 387 supplemental petition with respect to E.H. At the detention hearing on August 2, 2010, the court ordered E.H. removed from mother's care and placed with his current foster parents.
In an addendum report submitted for the jurisdiction and disposition hearing on the supplemental petition, CFS recommended that the court terminate reunification services for mother and set a section 366.26 hearing for E.H. CFS recommended that the permanent plan for E.H. be adoption.
On November 2, 2010, the trial court conducted a contested jurisdiction and disposition hearing at which it found the allegations of the supplemental petition true, terminated mother's reunification services, and set a section 366.26 hearing for E.H.
Mother continued to have weekly visits with E.H. During some of those visits mother spent most of the time looking for bruises on E.H. and then questioning him about anything she found. The foster parents reported that mother occasionally also had E.H. talk to her friends on her cell phone, and played rap music that contained vulgar lyrics.
In the report prepared for the selection and implementation hearing, the social worker reported in part that two-year-old E.H. was not developmentally on track because he had "scored low on his social emotional development, below 50, indicating he required services." E.H. also had "major delays in speech" for which he would need speech therapy. The social worker also reported that E.H. had attachment and transition issues but that the foster family was willing to work on those issues with him. In an addendum report prepared two months later, the social worker reported that "[E.H.] has made major progress in the last few months in his adoptive home. His is attending a reading class . . . where he is learning to read and identify body parts, animals[,] etc. He learns seven new words each week." Despite initial concern about his speech development, testing by a speech therapist indicated E.H. was within the average range and that services were not recommended. E.H.'s behavior had improved and his emotional issues had resolved to the point where he appeared very comfortable in his environment.
In April 2011, before the selection and implementation hearing, mother filed a section 388 petition in which she alleged her circumstances had changed in that she had stable housing and a strong support group; she was taking her medication as prescribed; she was participating in classes including women's group, anger management and medication management; she had emancipated on March 3, 2011; she had graduated from high school; and she was currently enrolled in classes at San Bernardino Valley Community College. Based on the alleged changed circumstances, mother requested E.H. be returned to her custody or in the alternative that the trial court order additional reunification services and liberal visitation with E.H. The trial court set a hearing for argument only on mother's section 388 petition to coincide with the hearing on the section 366.26 petition.
CFS filed an addendum review report in response to mother's section 388 petition in which the social worker reported, in pertinent part, that mother's host mother said mother tells lies and says things she cannot confirm; mother had not stayed the night in the host mother's home for nearly a month; mother had been enrolled in support services for two months but had missed two appointments; and mother had not verified her enrollment in community college classes.
The social worker also submitted addendum reports for the selection and implementation hearing in which she reported that E.H. had been in the home of his prospective adoptive parents for just over one year, including the initial placement with his mother who moved out after four months. E.H. appeared to be attached to his adoptive mother, turning to her for comfort and reassurance, and was developing a bond with both prospective adoptive parents. The social worker reported that during a visit with E.H., mother twice called the child "psycho" and inspected him for bruises. At the end of the visit, E.H. did not cry when mother left.
In June 2011, mother filed a second section 388 petition in which she alleged that E.H. should be removed from the home of his foster parents because he always has marks and injuries on his body, including a linear belt mark on his face, which prompted two child neglect emergency referrals to CFS by an unidentified reporter. Mother appended to her petition copies of the CFS investigations both of which were determined to be unfounded. The court set this second petition for an argument only hearing on the same date then set for the selection and implementation hearing.
The foster mother explained her belief that the belt mark on E.H.'s face was caused by a six year old female foster child who stayed only briefly with the family.
In its final addendum report for the section 366.26 hearing, CFS reported that E.H. and his foster mother continued to participate in "parenting child attunement therapy (PCAT)" which "has shown to have positively enhanced their relationship and strengthen [sic] their parental bond." E.H. was making progress with "decreas[ing] his dysregulated behaviors," such as "crying, throwing himself on the floor, screaming and refusing to comply," and "is more easily able to transition between activities with less negative behaviors." E.H. appeared to be happy and thriving in the adoptive parents' home.
On August 11, 2011, the court conducted a combined hearing on mother's section 388 petitions and on the selection and implementation of a permanent plan for E.H. The court first addressed mother's section 388 petitions and denied them both after finding mother had failed to show changed circumstances. Mother, the CFS adoption worker, and the adoption agency social worker all testified at the selection and implementation hearing. At the conclusion of that hearing, the court found E.H. was adoptable and terminated mother's parental rights.
DISCUSSION
We first address mother's challenge to the trial court's order denying her April 2011 section 388 petition.
Mother does not challenge the trial court's denial of the section 388 petition filed in June.
1.
SECTION 388 PETITION
Section 388 provides that any interested person may petition for modification of an order in a dependency proceeding upon showing changed circumstances or new evidence. Subdivision (d) of that section requires the court to order a hearing "[i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . ." A parent seeking modification of an order has the burden of making a prima facie showing that the proposed modification will, in fact, be in the child's best interest. "'There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the [child]. [Citation.]'" (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079, 1081 [Fourth Dist., Div. Two] [summary denial of section 388 petition was proper where there was no showing of how the children's best interests would be served by depriving them of a permanent stable home in exchange for an uncertain future].) "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. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) If it fails to show sufficient change of circumstances or new evidence or facts showing it would be in the best interests of the children to modify the order setting the section 366.26 hearing, the petition may be denied without hearing. (Id. at p. 808.) "We review the juvenile court's summary denial of a section 388 petition for abuse of discretion." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
As previously noted, the court in this case set mother's section 388 petition for "argument only," which we interpret to mean argument on whether mother made a prima facie showing sufficient to warrant an evidentiary hearing. We are persuaded from our review of the record that mother did not make the required showing of changed circumstances. Mother alleged in her petition, in pertinent part, that she (1) is compliant with her medication and (2) has stable housing and a strong support system. Conclusory allegations are not enough. In order to make a prima facie showing of changed circumstances, mother must allege specific facts or describe the evidence mother would present at a hearing. (In re Anthony W., supra, 87 Cal.4th at pp. 250-251.)
Our interpretation is further confirmed by the fact that the court denied mother's request to testify briefly at the hearing.
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To support her allegation that she was taking her medication as prescribed, mother attached a copy of her most recent prescription and what apparently is an appointment reminder from her doctor. That evidence does not establish that mother was actually taking the prescribed antidepressant according to her doctor's direction. One of mother's apparent ongoing problems has been her unwillingness to take prescribed medication. From that we can infer that mother's doctor has written prescriptions in the past that mother failed either to fill or take as prescribed. A prescription for medication does not demonstrate changed circumstances that would require a hearing.
Mother also failed to allege any facts or submit any evidence to support her allegation that she has stable housing and a strong support system. Her entire showing on this point consists of the bare allegation set out in her section 388 petition. The allegation alone is inadequate to show changed circumstances that warrant a hearing.
Mother's allegation that she had graduated from high school and was attending community college classes, while very commendable, does not constitute a changed circumstance sufficient to warrant returning E.H. to mother's custody. According to the previously recounted facts, mother's education, or lack thereof, was not a circumstance that led to E.H.'s dependency in the first place. Mother's immaturity as a result of her young age combined with her mental health issues were what compelled her to twice request that E.H. be removed from her care and placed in a foster home.
Similarly, Mother's alleged participation in classes for anger management and medication management, even if established by more detailed facts, show at best that mother was working toward changing her circumstances but not that her circumstances had actually changed. Section 388 requires a showing of changed circumstances. We commend mother's effort, but must conclude the allegations even if shown to be true do not establish changed circumstances within the meaning of section 388.
Mother's failure make a prima facie showing of changed circumstances compels us to conclude the trial court did not abuse its discretion in summarily denying mother's section 388 petition. Because mother must demonstrate changed circumstances before the court is obligated to consider whether the proposed modification is in the best interests of the child, we will not address the "best interests" aspect of mother's section 388 petition.
2.
BENEFICIAL RELATIONSHIP EXCEPTION TO TERMINATION OF
PARENTAL RIGHTS
Mother's second contention in this appeal is that the exception to parental rights termination set out in section 366.26, subdivision (c)(1)(B)(i) based on a so-called beneficial parental relationship applies in this case.
We review a trial court's order terminating parental rights to determine whether it is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Under section 366.26, subdivision (c)(1), the trial court must terminate parental rights if it finds by clear and convincing evidence that a child is adoptable unless it finds a compelling reason for determining that termination would be detrimental under one or more of the exceptions set out in subdivision (c)(1)(B). Under section 366.26, subdivision (c)(1)(B)(i), "the court may forego adoption and refrain from terminating parental rights only if a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination. [Citation.] The benefit to the child from continuing such a relationship must also be such that 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."' [Citations.] A child who is determined to be a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may benefit the child to some degree but does not meet the child's need for a parent. [Citation.] Adoption, when possible, is the permanent plan preferred by the Legislature if it is likely the child will be adopted. [Citation.]" (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450.) "To overcome the strong policy in favor of terminating parental rights and to fall within section 366.26, subdivision (c)(1)[(B)(i)]'s purview, the parent must show more than 'frequent and loving contact' [citation], and be more to the child than a mere 'friendly visitor or friendly nonparent relative.' [Citation.] The parent must show the parent-child bond is a 'substantial, positive emotional attachment such that the child would be greatly harmed' if parental rights were terminated. [Citation.]" (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)
Substantial evidence supports the trial court's decision to terminate mother's parental rights in this case. The evidence shows that after the trial court set the selection and implementation hearing and reduced mother's visits from once a week to once every other week, mother missed two visits and was late for a third scheduled visit with E.H. Nevertheless, the evidence shows mother maintained regular contact and visitation with E.H.
The dispositive question is whether there is evidence that the child would derive some benefit from continuing a relationship with mother. Mother asserts the evidence shows she was E.H.'s primary caretaker until he was nearly two years old and that the two share a bond, which was most evident when the infant was less than a year old. But the existence of a bond is not enough; the evidence must show that E.H. would be greatly harmed by disruption of that relationship. On this point mother can say only that there is "a strong possibility of detriment to the minor's long-term emotional development." That possibility, in our view, could exist in nearly every situation in which a young child is separated from someone or something to which the child has an attachment. The existence of such a possibility is speculation and as such cannot constitute proof of the significant harm required to establish the beneficial parental relationship exception to parental rights termination.
As mother argued at the conclusion of the selection and implementation hearing, the evidence shows E.H. is "attached" to her, "he knows who she is, and he knows she has provided some care for him and that there is that biological bond that children have." When mother is present, E.H. looks to her for direction. E.H. cries and is sad when mother leaves. That evidence simply is not enough to compel a trial court to find that E.H.'s relationship with mother promotes his well-being to such a degree as to outweigh the well-being he would gain from a permanent home with his adoptive parents. (In re Aaliyah R., supra, 136 Cal.App.4th at pp. 449-450.)
In short, the evidence is sufficient to support the trial court's order terminating mother's parental rights to E.H.
DISPOSITION
The order denying mother's section 388 petition and the order terminating mother's parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur:
Hollenhorst
Acting P.J.
Miller
J.