Opinion
D059289 Super. Ct. No. NJ14019C-D
10-18-2011
In re ADRIAN G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.G. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from a judgment of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Affirmed.
R.G. (Mother) and J.G. (Father) (together the parents) appeal a judgment terminating their parental rights to Adrian G., under Welfare and Institutions Code section 366.26. The parents contend the court abused its discretion by denying Mother's section 388 modification petition seeking Adrian's return to her custody or, alternatively, additional reunification services. The parents also challenge the sufficiency of the evidence to support the juvenile court's finding that the section 366.26, subdivision (c)(1)(B)(i), beneficial parent-child relationship exception to adoption does not apply to preclude termination of parental rights. We affirm.
Father joins in Mother's arguments.
According to the record the child's correct name is Adrian G.S.
All further statutory references are to the Welfare and Institutions Code.
Adrian's counsel agrees with the juvenile court's decision.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2008 the San Diego County Health and Human Services Agency (Agency) detained Adrian's three older siblings, sister A.G., and brothers L.G. and E.G. (together the siblings), after it was discovered seven-year-old A.G. had been sexually abused by Father, and Mother had allowed Father into the home in violation of an agreed upon Agency safety plan. The parents consistently denied Father had sexually abused A.G. The siblings were placed in foster care and the parents were provided with reunification services beginning in October 2008.
The parties raise no issues as to L.G.
Father appealed these orders and the juvenile court's decision was affirmed in this court's unpublished opinion, In re Efrain G. (Mar. 29, 2010; D055399).
Adrian was detained at birth in May 2009 and Agency filed a petition alleging he was at substantial risk of sexual abuse as a result of Father's sexual abuse of A.G., and because the parents had not progressed in their reunification plans for the siblings. It also had been discovered that five-year-old L.G. suffered from severe emotional damage evidenced by his aggressive and aberrant sexual behavior.
In December 2009 the court entered a true finding on Adrian's petition, but found the risk of sexual abuse to Adrian was the result of L.G.'s obsessive fixation on masturbation and harming animals and not Father's sexual abuse of A.G. The court declared Adrian a dependent, placed him in foster care and ordered supervised visitation.
The parents appealed this order and the juvenile court's decision was affirmed in this court's unpublished opinion, In re Adrian G. (Sept. 16, 2010; D056535).
At the siblings' contested 12-month review hearing in March 2010, the court found the parents had not made substantive progress in their case plans, terminated reunification services and scheduled section 366.26 selection and implementation hearings. Psychological evaluations revealed Mother suffered from anxiety and depression, and was emotionally and psychologically immature; the evaluations also questioned her ability to keep A.G. safe because she continued to deny A.G. had been sexually abused. Father also continued to deny any wrongdoing, and his therapist reported he had "difficulty seeing things from the point of view of others."
In August 2010 Mother filed a section 388 modification petition requesting the siblings be returned to her custody with additional reunification services. The court denied Mother's section 388 petition, finding she had not shown a change of circumstances and granting her petition was not in the siblings' best interests. The parents continued to deny A.G. was sexually abused by Father, although recently Mother had admitted the possibility A.G. had been abused. Eight-year-old E.G. and five-year-old L.G. repeatedly engaged in sexualized behavior in their foster home, and L.G. revealed that he and E.G. had engaged in inappropriate sexual activities with Father. Therapists questioned whether Mother would ever be able to protect her children. At the siblings' section 366.26 hearing the court ordered adoption for A.G., Another Planned Permanent Living Arrangement for E.G., and continued the matter for L.G., finding he was adoptable but difficult to place because of his sexualized and aggressive behaviors.
The parents appealed the court's denial of Mother's section 388 modification petition and the termination of parental rights for the siblings. The court's orders were affirmed in this court's unpublished opinion, In re E.S. (May 2, 2011; D058250).
At a review hearing, 16 months after Adrian's detention, the court found the parents had not made substantive progress on their case plans, Adrian's return to his parents' custody would create a substantial risk of detriment to him, and there was not a substantial probability he would be returned within six months. The court terminated the parents' reunification services and set a section 366.26 hearing for January 2011.
In November 2010 Mother filed a section 388 modification petition requesting unsupervised visitation with Adrian. Mother claimed her circumstances had changed because she had recently filed for dissolution of her marriage to Father, was employed and financially independent, and her therapist reported she was making progress. The court summarily denied Mother's section 388 petition, finding Mother's circumstances had not changed since termination of reunification services and, even if her circumstances had changed, it was not in Adrian's best interests to grant her petition.
Mother appealed the denial of her section 388 modification petition and the juvenile court's decision was affirmed in this court's unpublished opinion, In re Adrian G.(Apr. 27, 2011; D058694).
In January 2011, Mother filed a section 388 petition asking the court to terminate jurisdiction over Adrian and return him to her custody, or order six additional months of reunification services. Mother alleged her circumstances had changed because the dissolution of her marriage was imminent, she was employed and financially independent, she had obtained her own apartment, and her therapist reported she was making significant progress. Mother contended it was in Adrian's best interests to return him to her custody because she shared a bond with him, and she was able to protect him as a result of her divorce and financial independence from Father. The court conducted an evidentiary hearing over two days on Mother's section 388 petition. After considering evidence and hearing arguments, the court found that although Mother had shown a change of circumstances, she had not met her burden to prove Adrian's best interests would be served by returning him to her custody, or by delaying permanency and reinstating reunification services. The court denied Mother's section 388 petition and set a contested section 366.26 hearing for the following week.
Mother also filed a similar section 388 modification petition concerning L.G. In L.G.'s case the court granted Mother's request for additional services, finding reinstatement of reunification services was in L.G.'s best interests because he and Mother had an existing relationship, but found it was not in L.G.'s best interests to grant Mother custody.
At Adrian's contested section 366.26 hearing Agency recommended parental rights be terminated and a permanent plan of adoption ordered. Adrian was adoptable because he was healthy, adorable, and his development was age-appropriate. He was attached to his caregiver, with whom he had lived since shortly after his birth, and the caregiver was committed to adopting him. Forty-seven approved families in San Diego County also were interested in adopting a child with Adrian's characteristics. The social worker did not believe the parent-child relationship exception to adoption applied; although Mother acted appropriately and affectionately during her regular supervised visits with Adrian, he did not cry or show anxiety when separated from her. However, Adrian reacted negatively when separated from his caregiver, and he exhibited behavioral problems both in school and at home following visits with Mother. The court found by clear and convincing evidence that Adrian was likely to be adopted, and that no exception to adoption applied to prevent termination of parental rights, terminated parental rights and ordered a permanent plan of adoption.
DISCUSSION
I. Section 388 Petition
The parents contend the court abused its discretion by denying Mother's section 388 modification petition to terminate the court's jurisdiction over Adrian and return him to her custody or, alternatively, order six additional months of reunification services. The parents claim Mother proved her circumstances had changed and that it was in Adrian's best interests to change the court's order terminating reunification services.
Section 388, subdivision (a), permits a parent to petition the court to change, modify or set aside a prior court order if the parent shows by a preponderance of the evidence his or her circumstances have changed and the proposed modification would be in the child's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re B.D. (2008) 159 Cal.App.4th 1218, 1228.) In determining whether the requisite showing has been made, the court may rely on facts alleged in the petition as well as the factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) This court will not disturb the juvenile court's exercise of discretion unless it has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. (In re Stephanie M., at p. 318.) " 'When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " (Walker v. Superior Court (1991) 53 Cal.3d 257, 272, quoting Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
Section 388, subdivision (a), provides in pertinent part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and . . . shall set forth in concise language any change of circumstance or new evidence that are alleged to require the change of order or termination of jurisdiction."
By the time reunification services are terminated, " 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest[s] of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317.) This is particularly true "when such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make some factual showing that the best interests of the child would be served by modification." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
After conducting an evidentiary hearing over two days on Mother's section 388 petition, the trial court found that Mother proved her circumstances had changed, but that she did not show it was in Adrian's best interests to return him to her custody, or reinstate reunification services and thereby delay permanency for Adrian. (In re A.S. (2009) 180 Cal.App.4th 351, 357-358; In re Angel B., supra, 97 Cal.App.4th at p. 463.) Although Mother had made progress on her case plan and recently had admitted A.G. had been sexually abused by Father, Mother had much more work to be done before her children could be placed with her. Adrian has never lived with Mother and, although at times Adrian was happy to see Mother during visits, there was no evidence Adrian was distressed when visits ended. On the other hand, since Adrian was a few days old he had lived with and formed a primary attachment to the caretaker, who was committed to adopting him. "When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child." (Burchard v. Garay (1986) 42 Cal.3d 531, 538-539, fn. 6.)
Taken as a whole, the facts support the juvenile court's finding that Mother's section 388 petition did not establish it would be in Adrian's best interests to be returned to Mother's custody or have his permanency delayed by reinstatement of reunification services. Mother argues the juvenile court impermissibly "focused exclusively" on the relationship between Adrian and his caretaker in terminating her parental rights, citing In re Kimberly F. (1997) 56 Cal.App.4th 519, in which the appellate court reversed the trial court's denial of the mother's section 388 motion. However, that court also recognized "the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion. [Citation.]" (In re Kimberly F., at p. 531.) Furthermore, although the trial court may have considered Adrian's "primary attachment" to the caretaker, the court also considered the fact that Adrian had never lived with Mother, was never distressed when visitation with her ended, and appeared to have no significant bond with her. In contrast, the children in In re Kimberly F. had lived with their mother the majority of their lives, and the appellate court repeatedly emphasized undisputed testimony that the mother "had maintained a very close bond with her children" and noted "[t]he evidence also showed the children's ties to the mother be strong relative to those of their current caretaker . . . ." (Id. at pp. 522-526, 532.) Furthermore, unlike the instant case, the mother in In re Kimberly F. "had a substantial amount of unmonitored visitation . . . ," the reason for the children's initial removal (a dirty house) was not "as intractable a problem as . . . sexual abuse . . . ," and although sexual abuse was not a reason for the dependency, the court noted "[t]here is no issue in the present case concerning [mother's] ability to protect [her daughter] from molestation." (Id. at pp. 523, fn. 3, 531, fn. 9, 532.) Finally, the court in In re Kimberly F. did not take into account the California Supreme Court's analysis of best interests: "In the context of a motion pursuant to section 388 for change of placement after the termination of reunification services, the predominant task of the court was to determine the child's best interests . . . ." (In re Stephanie M., supra, 7 Cal.4th at p. 320.) At this stage of the proceedings "the interest of the child in stability had become paramount." (Id. at p. 324.) Mother did not meet her burden to establish Adrian's interest in permanency and stability would be promoted by his return to her custody or the resumption of reunification services. The court acted within its discretion by denying Mother's section 388 petition. (In re Stephanie M., at p. 318.)
II. Beneficial Parent-Child Relationship Exception
The parents argue the evidence is insufficient to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i), does not apply to preclude terminating their parental rights. They assert Adrian would benefit from continuing the parent-child relationship with Mother because she had maintained regular visitation and contact with Adrian.
The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals; we uphold the juvenile court's findings if there is substantial evidence to support them. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Instead, we draw all reasonable inferences in support of the findings, consider the record favorably to the juvenile court's order and, even if there is conflicting evidence, we affirm the order if it is supported by substantial evidence. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of showing there is not substantial evidence to support the finding or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing, unless the parent establishes the existence of a statutory exception. (§ 366.26, subd. (c)(1).) One exception is if "[t]he court finds a compelling reason for determining that 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." (§ 366.26, subds. (c)(1)(B), (c)(1)(B)(i).) 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. (1994) 27 Cal.App.4th 567, 575.) In determining whether a beneficial parent-child relationship exists, the court takes into consideration "[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 parents do not contest the court's finding that Adrian is adoptable.
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The court found Mother proved the first prong of the beneficial parent-child exception because she frequently visited Adrian. However, the court found Mother did not meet her burden to prove the second prong of the exception because she did not show the benefits of continuing Adrian's relationship with Mother outweighed his need for the stability afforded by adoptive placement. (In re Nolan W. (2009) 45 Cal.4th 1217, 1235; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.)
The evidence did not show Adrian had a "significant, positive, emotional attachment" to Mother so that terminating the parent-child relationship would result in "great harm" to him. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Adrian had never lived with Mother, and by the time of the section 366.26 hearing his future had been in limbo for over 20 months. Adrian often had behavioral difficulties on the day following Mother's visits. There was no evidence Adrian was negatively impacted by Mother's absence from his daily life, and he showed no prolonged distress from being separated from the parents.
There also was no guarantee Mother would ever be ready to parent Adrian appropriately; the parents had received almost two years of reunification services and Mother had only recently accepted that Father had sexually abused A.G. 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.) Adrian was happy and experiencing stability in the home of his caretaker, the only home he had ever known. Adrian's caretaker has provided for his "physical care, nourishment, comfort, affection and stimulation," and was committed to adopting him. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Because Mother could not yet meet Adrian's needs, he deserved to have his custody status promptly resolved and his placement made permanent and secure.
Mother argues her relationship with Adrian must be viewed in the context of the time she shared with him, citing In re S.B. (2008) 164 Cal.App.4th 289, in which this court concluded that the juvenile court erred by declining to apply the beneficial relationship exception. (Id. at p. 301.) However, in In re S.B., the child had lived with the appellant father for three years and continued to display a strong attachment to him after her removal, and the court found they had "an emotionally significant relationship." (Id. at pp. 298-301.) Unlike Mother, the father in In re S.B. empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (id. at p. 298). Here, no expert disagreed with Agency's opinion that there was no emotionally significant relationship.
Mother also argues her situation is similar to that in In re Amber M. (2002) 103 Cal.App.4th 681, in which we held the evidence was insufficient to support the court's finding that there was no beneficial parent-child relationship. (Id. at p. 691.) Although factual comparisons between cases provide insight, comparisons can be misleading. In In re Amber M., three experts believed the minors had beneficial relationships with their parent that clearly outweighed the benefit of adoption. (Id. at p. 690.) Furthermore, the appellate court remanded the matter for a new section 366.26 hearing because the trial court did not address the long-term effect on the children of terminating parental rights. (Id. at p. 691.)
"The Legislature's goals are clear: 'We have long recognized that providing children expeditious resolutions is a core concern of the entire dependency scheme.' [Citation.] 'The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it.' " (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1061.)
Examining the evidence most favorably to the judgment, we conclude that substantial evidence supports the juvenile court's findings that although Mother maintained regular visitation and contact with Adrian, the benefits to Adrian of maintaining that relationship were outweighed by the benefits of his adoption by his long-term caretaker.
DISPOSITION
The judgment is affirmed.
MCDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.