Opinion
No. B220196 No. JV38547
06-21-2010
SAN LUIS OBISPO COUNTY DEPARTMENT OF SOCIAL SERVICES,Plaintiff and Respondent,v.SONIA C.,Defendant and Appellant.
Maureen L. Keaney, under appointment by the Court of Appeal, for Appellant.Warren R. Jensen, County Counsel, Leslie H. Kraut, Deputy CountyCounsel, for Respondent.
Maureen L. Keaney, under appointment by the Court of Appeal, for Appellant.
Warren R. Jensen, County Counsel, Leslie H. Kraut, Deputy County Counsel, for Respondent.
PERREN, J.
Sonia C. (Mother) appeals from orders of the juvenile court denying her modification petition, terminating her parental rights and establishing adoption as a permanent plan with respect to her son Daniel C. (Welf. & Inst. Code, §§ 366.26, 388.)She contends that the evidence does not support any of these orders. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
On January 9, 2009, the San Luis Obispo County Department of Social Services (DSS) filed a dependency petition on behalf of Daniel C. who was three yearsPage 2
old at the time. The petition alleged a substantial risk of physical harm to the child based on Mothers inability to supervise or protect Daniel or provide care or support due to Mothers long-standing and severe substance abuse problem. (§ 300, subds. (b) & (g).) A few days before the petition was filed, Mother tested positive for methamphetamine and gave birth to a one and a half pound premature baby. The petition also alleges that Mother has had an extensive history with DSS including 36 referrals and the detention of her other four children for extended periods of time. Daniels father is absent and uninvolved in the case.
The petition also covered Daniels older sibling, S. C., but this appeal concerns only Daniel.
The detention report outlined the allegations of the petition in more detail and stated that Mother was in a violent and abusive domestic relationship. The juvenile court issued a detention order on January 12, 2009, and Daniel was placed in foster care. The record shows that Daniel had trouble adjusting to foster care and changed foster homes twice.
The jurisdiction and disposition report outlined Mothers prior history with DSS involving her five children. It stated that Mother and her live-in boyfriend were both actively using methamphetamine. The report recommended denial of reunification services and supervised visitation with Daniel.
After a hearing in April 2009, the juvenile court issued its jurisdictional and dispositional order declaring Daniel to be a dependent of the court. A section 366.26 hearing was set. Daniel was placed in foster care, and reunification services were denied. Mother was given supervised visitation.
On August 26, 2009, Mother filed a section 388 petition requesting reunification services for Daniel. The petition alleged that Mother had commenced rehabilitation efforts in April 2009, and had been clean and sober for four months. DSS opposed the petition, citing Mothers long history of substance abuse and neglect of her children.Page 3
On September 25, 2009, the juvenile court conducted both the section 388 and section 366.26 hearings. The section 366.26 report and opposition to the section 388 petition both cited Mothers long history of substance abuse and Daniels improvement in his current placement which was with his prospective adoptive father. DSS noted that Mothers visitation with Daniel has been infrequent and supervised. Mother testified that she was currently living in a residential rehabilitation center and had employment. She testified that she had been sober for six months and was ready to resume custody of Daniel.
The juvenile court denied Mothers section 388 petition and terminated her parental rights. The court acknowledged that Mother had taken positive steps but any recovery was in its early stages. The court noted Mothers long history with DSS and her long history of addiction, violence and neglect of Daniel and her other children. The court concluded that it would be detrimental to Daniel to attempt reunification with Mother, found clear and convincing evidence that Daniel was adoptable, and selected adoption as the permanent plan in Daniels best interests.
DISCUSSION
No Abuse of Discretion in Denial of Section 388 Petition
Mother contends that the trial court erred in failing to grant her section 388 petition requesting reunification services. We disagree.
Mothers notice of appeal did not mention the section 388 order but we will treat the appeal as including an appeal of that order. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450.)
Section 388 provides that a parent may petition the court "to change, modify, or set aside" any order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a).) The parent has the burden of showing a genuine change of circumstances, and that granting the petition would promote the best interests of the child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)Page 4
In making its determination, the juvenile court should consider the seriousness of the reason for the dependency, the relative strength of the parent-child and child-caretaker bonds, the nature of the change in circumstances and whether it will remove the problem, and the reason the change was not made sooner. (In re Aaliyah R, supra, 136 Cal.App.4th at pp. 446-447; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) Moreover, where reunification services have been bypassed or terminated, the focus shifts from the parents interest to the childs need for permanency and stability, and there is a rebuttable presumption that continued foster care is in the childs best interests. (In re Aaliyah R., at p. 448.) We review the denial of the petition for abuse of discretion. (Id. at p. 447.) There was no abuse of discretion in this case.
The juvenile court reasonably concluded that Mothers changed circumstances were inadequate, and that Daniels need for permanency would not be advanced by granting the petition. The court determined that Mothers behavioral turnaround showed "changing" circumstances, not the required "changed" circumstances. (See In re Casey D. (1999) 70 Cal.App.4th 38, 47, 49.) Mother had remained clean and sober for five months and made other improvements, but had been in the dependency system with her older children multiple times, and had remained sober for periods of time in the past. Given the length and severity of Mothers drug problem the court reasonably found that there was little assurance that she would succeed in her most recent attempt at recovery. (See In re Mary G. (2007) 151 Cal.App.4th 184, 205-206; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.) Moreover, because Mothers circumstances were in flux and uncertain, the court was entitled to conclude that granting Mothers request for reunification services was not in the childs best interests. The record also shows that, after some early problems in the foster care system, Daniel has made significant progress in his current foster home, and has a strong bond with his foster father who is also his prospective adoptive father. (See In re Aaliyah R., supra, 136 Cal.App.4th at p. 448.)
Substantial Evidence Supports Finding of Adoptability
Mother contends the juvenile court erred in finding Daniel to be adoptable. She argues that, because of his behavioral problems early in the dependency proceeding, there was no clear and convincing evidence Daniel was adoptable. We disagree.
"The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a
reasonable time____" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561, 1562.) In
making the adoptability determination, the court focuses on whether the childs age, physical condition, and emotional state make it difficult to find an adoptive home for the child. (Ibid.) The existence of prospective adoptive parents is an important factor because their willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parents or some other family. (In re Josue G. (2003) 106 Cal.App.4th 725, 733; see also In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) Although the finding must be based on clear and convincing evidence, we give the order the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re Josue G., at p. 732; In re Gregory A., at p. 1562.) We review the factual basis for the trial courts finding of adoptability for substantial evidence. (In re Josue G., at p. 732.) Substantial evidence supports the trial courts finding of adoptability.
Mother focuses on behavioral traits exhibited by Daniel during his unsuccessful placement in two foster homes before his current placement. The record shows that Daniel became upset and acted out by scratching his arms, banging his head, and pulling out his hair. There is also evidence of speech delays during the early portion of the dependency proceeding. Based on this behavior, Mother argues Daniel does not qualify as adoptable "in general." She argues that Daniels individual traits are contrary to the finding of adoptability even though a prospective adoptive parent had been identified.
After Daniel was placed with his current foster parent/prospective adoptive parent, however, his behavior greatly improved. Daniel met his prospective foster father
Mr. P. in April 2009, began regular visits and was living in Mr. P.s home in June 2009. Mr. P. is a clinical psychologist with a large extended family. Once placed in that home, Daniel became calmer and happier, his angry and self-harming behavior disappeared, and other improvements occurred. Daniel has verbalized that he wants to live with Mr. P. and calls him "Dad."
Mother discounts this improvement by speculating that, if the current prospective adoptive parent were to change his mind, adoption by another family would be unlikely. The record does not support this speculation that Daniels negative behavior is likely to reappear, or was the result of anything other than Mothers neglect and the instability of her household. The evidence does not support the conclusion that Daniels current physical and mental health is likely to dissuade individuals from adopting him.
Substantial Evidence Supports Termination of Parental Rights
When the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless the parent proves such action would be detrimental to the child under one or more of enumerated exceptions. (§ 366.26, subd. (c)(1)(B).) Mother claims the so-called "beneficial relationship" and "sibling relationship" exceptions apply and prevent termination of her parental rights. (§ 366.26, subds. (c)(1)(B)(i) and (c)(1)(B)(v).)
The beneficial relationship exception applies 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)(B)(i).) We review the courts termination of parental rights under the substantial evidence standard. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Here, substantial evidence supports the trial courts conclusion that Mothers relationship with Daniel did not outweigh his need for stability in an adoptive home.
To establish the beneficial relationship exception, Mother was required to show both that she maintained regular visitation and contact with Daniel and that Daniel "would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Here, it is questionable whether Mother maintained regular visitation with Daniel because she did not consistently visit him until four months after the dependency petition was filed and her visitation has always been supervised. It is difficult for a parent to demonstrate a beneficial relationship based on contact that never progresses beyond supervised visits. (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
There is no doubt, however, that substantial evidence supports the juvenile courts finding that Mother failed to establish that Daniel "would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The parent must show more than a relationship that is beneficial to some degree. The parent must prove he or she occupies a parental role in the childs life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Aaliyah R., supra, 136 Cal.App.4th at p. 450; In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
The record contains ample evidence that the bond between Mother and Daniel does not show a significant positive attachment or, if broken, would have harmful consequences to Daniel. The evidence shows that Daniel is thriving in his prospective adoptive fathers home, and has no problem transitioning back to that environment after visits with Mother. Daniel calls his prospective adoptive father "Dad," and has stated that he wants to live with him. As in most dependency cases involving substance abuse, Mother waited far too long to take the necessary steps towards recovery. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)
Mother also argues that her parental rights should not be terminated based on the sibling relationship between Daniel and sister S.C.. Again, we conclude that substantial evidence supports the trial courts determination.
Under the sibling relationship exception, termination of parental rights would be considered detrimental to the child if "[t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
For this exception to apply, the court must first determine whether adoption would "substantially interfere" with a strong sibling relationship. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) If the court determines there would be substantial interference with the sibling relationship, it then must balance the benefit of the childs relationship with his or her sibling against the benefit to the child of gaining a permanent home by adoption. (Id. at p. 952.) The balancing involves the same factors as the balancing of interests in determining the "beneficial relationship" exception. (Ibid.)
Here, it is undisputed that Daniel and S.C. have a strong brother-sister bond, but there is no need to balance that bond against the benefits of adoption because there is no evidence that termination of Mothers parental rights would interfere, substantially or otherwise, with that sibling relationship. (See In re Daisy D. (2006) 144 Cal.App.4th 287, 293.) S.C. is living with her father, and Mother has no physical or legal custody of her. Mother also is limited to supervised visits with S.C. There is no evidence that the two children will live together at any time in the future whether or not Mothers parental rights are terminated as to Daniel.
Moreover, the record shows that Daniels prospective adoptive father and S.C.s caretaker and maternal grandparents are committed to continuing regular sibling contact in the future. In view of the prospective adoptive fathers commitment to sibling visits, the juvenile court could reasonably conclude that Daniels interests would be better served by adoption than a return to Mother or a guardianship or foster home placement. (In reL.Y.L., supra, 101 Cal.App.4th at p. 951.)
The orders denying Mothers section 388 petition, finding the child to be adoptable, and terminating parental rights are affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
COFFEE, J.
Ginger E. Garrett, Judge