In re Aiden L.











Filed 4/4/17 In re Aiden L. CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re AIDEN L., a Person Coming Under the Juvenile Court Law.


ORANGE COUNTY SOCIAL SERVICES AGENCY,

Plaintiff and Respondent,

v.

A.L.,

Defendant and Appellant.




G054048

(Super. Ct. No. 15DP0070)

O P I N I O N

Appeal from orders of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Offices of Vincent W. Davis & Associates and Stephanie M. Davis for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputies County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
INTRODUCTION
A.L., the mother of the minor, Aiden L., appeals from two orders of the juvenile court: an order denying a hearing on her petition under Welfare and Institutions Code[1] section 388 and an order terminating her parental rights under section 366.26. We affirm both orders.
Huntington Beach police officers picked up Aiden shortly before his third birthday, because A.L. had become too intoxicated to care for him. Orange County Social Services Agency (SSA) took charge of Aiden.
If this has been A.L.’s first encounter with SSA, things might have turned out differently. A.L. made progress in her programs and with her therapy between detention and the section 366.26 hearing. Unfortunately, however, A.L. had a track record. This was the third time in less than three years Aiden had been detained because of A.L.’s drinking and the third time she had made progress only to relapse in a way that endangered Aiden. The previous two times, Aiden had been returned to her. This time he was not.
We cannot say the juvenile court abused its discretion when it decided that A.L. had not presented the prima facie case of changed circumstances required to qualify for a hearing under section 388. And substantial evidence supported the juvenile court’s decision that the beneficial relationship exception of section 366.26(c)(1)(B)(i) did not apply to the case. Accordingly we must affirm the court’s decisions.
FACTS
When Huntington Beach police officers picked up Aiden in A.L.’s apartment on the night of December 19, 2015, he was nearly three years old. He was wearing only a diaper, and he was screaming and very cold. A.L. was drunk, having consumed two 24-ounce beers and a six-pack of hard cider within a few hours before the police arrived. The police took Aiden to SSA, and A.L. returned to the bottle, consuming a gallon of vodka the following day.
This was not Aiden’s, nor A.L.’s, first encounter with SSA. Aiden was detained at birth in January 2013 because of A.L.’s alcohol abuse during her pregnancy.[2]A.L. completed some programs, and Aiden was returned to her under a family maintenance program after nine months.In June 2014, less than three months afterthe first dependency terminated, Aiden was detained again, once again because of A.L.’s drinking.Once again, A.L. completed some programs, and once again she regained custody of Aiden. The second dependency was terminated in November 2015. A month later, police picked up Aiden for the second time, again because A.L. was too drunk to take care of him.
After this third detention, Aiden was placed in foster care with a family that had fostered him during a previous detention.A.L. started in again on classes, therapy, and sobriety programs, making good progress.She consistently visited Aiden, and the visits reportedly went well.Aiden for his part was doing well in his foster family. Quite small for his age, probably because of A.L.’s alcohol consumption during her pregnancy, he was revealed to be a smart and verbal little boy,and he began to catch up to his age group in size.He came to regardthe children of his foster parents as his own siblings.His foster parents expressed a desire to adopt Aiden if reunification failed.
Jurisdiction of the juvenile court over Aiden was established on February 3, 2016, per stipulation.[3] SSA recommended bypassing family reunion services, owing to A.L.’s two prior failures to profit from extensive services.At the disposition hearing in April 2016, the court ordered trauma therapy for A.L. but bypassed other services.
The court also ordered a bonding study of Aiden, A.L., and the foster family. The court-appointed psychologist who conducted the study concluded that Aiden and A.L. had a strong bond, but this bond produced stress and anxiety in Aiden because he was, in effect, trying to act as a parent to his mother. The psychologist also observed a strong bond between Aiden and his foster family, one that provided him the “expectation of stability, structure, [and] clear differentiation between the roles of adult and child. . . . [Aiden] seems less anxious with the foster parents and his anxiety is contained better because of their building of age-appropriate routines, facilitating predictability and stability which young toddlers need in order to feel safe and to deepen their attachment and bonds.”
The hearing for a permanent plan took place on August 30, 2016. At that same time, A.L. made a motion under section 388 to return Aiden to her or to obtain reunification services and expanded visitation. She requested a hearing. The juvenile court denied her request for a hearing on the section 388 motionand proceeded to the section 366.26 hearing. After listening to testimony from the social worker and from the psychologist who had performed the bonding study,the court found Aiden likely to be adopted.[4] The court terminated A.L.’s parental rights, having decided that A.L. did not qualify for the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i).
DISCUSSION
A.L. has identified two issues for review. First, she asserts the court abused its discretion by denying her request for a hearing on her motion under section 388.Second, she contests the termination of her parental rights on the grounds that she qualified for the exception under section366.26, subdivision (c)(1)(B)(i), in that Aiden would benefit from continuing his relationship with her.[5]
I. Hearing on A.L.’s section 388 Motion
The basis of A.L.’s section 388 motion was the progress she was making in her programs and therapy.She asked for placement of Aiden with her or liberalized visitation andadditional family reunion services. The court denied the request for hearing on the grounds that nothing had really changed and A.L. had not made a prima facie showing of the child’s best interests.[6]
We review the juvenile court’s summary denial of a hearing on a section 388 motion for abuse of discretion. (In re Angel B.(2002) 97 Cal.App.4th 454, 460.) In order to qualify for a hearing, a person petitioning for a change, modification, or vacation of a previous order must show a change of circumstance or new evidence. (§ 388, subd. (a)(1).)California Rules of Court, rule 5.570(d)(1) provides that a court may deny a petition under section 388, subdivision (a), without a hearing if the petition fails to state a change of circumstance or new evidence or fails to show that the requested modification would promote the child’s best interest.A parent need make only a prima facie showing to qualify for a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) In deciding whether to hold a hearing, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
While we are concerned by a growing number of these cases in which courts find no prima facie showing in favor of a hearing – a very low threshold – A.L.’s petition did not present a prima facie case of a change of circumstance or new evidence. It showed, in fact, the same pattern that had resulted in Aiden’s being detained twice before with only short intervals between detentions. After the previous two detentions, A.L. dutifully attended classes and meetings, completing all the requirements in exemplary fashion, only to relapse with breathtaking speed into severe alcohol abuse when the cases were closed. The evidence submitted with the petition merely showed she was doing this once more.There is no reason to put this child in such jeopardy again.
The changed-circumstances factor is especially important as it bore on A.L.’s request to have Aiden live with her again. She was still enrolled in programsand, her therapist explained,still struggled to overcome the problems that led to detention.She had only begun the therapy itself. She was not remotely ready to have Aiden returned to her care.
Other considerations are at work here as well. Section 388, subdivision (d), and the court rule both condition a hearing on a showing that granting the petition will promote the child’s best interests. “[I]f 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. [Citation.] [¶] . . . [¶] The conditional language of section 388 makes clear that the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807.)
The facts in this case parallel those of In re Angel B., as set forth by the reviewing court: “In this case, the facts presented by the section 388 petition show that Mother is doing well, in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with Angel. In addition, we shall assume, for the sake of this appeal, that this time her resolve is different, and that she will, in fact, be able to remain sober, remain employed, become self-supporting and obtain housing. Even so, such facts are not legally sufficient to require a hearing on her section 388 petition. [¶] As noted above, there is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child, particularly 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., supra, 97 Cal.App.4th at pp. 464-465.)
Moreover, when the section 388 petition is filed close to the hearing under section 366.26, as was the case here,[7]the focus centers on the child’s need for permanency and stability. “A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
In In re J.C. (2014) 226 Cal.App.4th 503, we cautioned against the impulse to delay permanency and stability for very young children in favor of rewarding parents for working hard at efforts to reunify. (Id. at pp. 527-528.)In this case, permanency and stability for Aiden were of paramount importance, and the evidence submitted with A.L.’s petition did not even touch on this issue. Most of a four-page letter(not a declaration) written by her andattached to the petition was about her wishes, her problems, and her history with previous efforts to get sober. She mentions being a “good mom who has shown this little boy what it means to be good to others” and asserts she has encouraged his education, kept him on a solid schedule, and “engulfed him in arts and culture.” Even granting all this to be true, A.L. did not explain how more reunification services for heror increased visitation wouldcreate permanency and stability in Aiden’s life or serve his best interests.
A.L.’s section 388 petition did not make a prima facie case that the modifications she requested were based on changed circumstances and Aiden’s best interests. The court did not abuse its discretion by denying a hearing on the petition.
II. Termination of Parental Rights (Section 366.26)
A.L.’s sole disagreement with the juvenile court with respect to termination of her parental rights centers on the beneficial relationship prong of section 366.26, subdivision (c)(1)(B)(i). She does not dispute that Aiden is likely to be adopted. She claims, however, that her parental rights should not be terminated because Aiden would benefit from continuing their relationship.
We have adopted the standard of review articulated in In re Bailey J. (2010) 189 Cal.App.4th 1308: we review the court’s determination of the existence of a beneficial relationship for substantial evidence, and we review the determination of whether ending that relationship would be so detrimental to the child as to outweigh the benefits of adoption for abuse of discretion. (Id. at pp. 1314-1315; seeIn re J.C., supra, 226 Cal.App.4th at pp. 530-531; see alsoIn re Noah G. (2016) 247 Cal.App.4th 1292, 1300-1301.)
A.L.’s argument relies heavily on the psychologist’s testimony at the termination hearing regarding the bond between her and Aiden.While it is true that the psychologist stated she observed a strong bond between A.L. and Aiden and foresaw some detriment to him if it was severed, shealso characterized this bond asunhealthy, in that he, at three years old, was trying to meet her needs for comfort and reassurance, instead of the other way around. His “desperate attempt to maintain his own stability and his own predictability” caused him to be anxious about her and far too solicitous of her for a three-year-old.“So his attachment becomes a source of stress for him. Such children may be very attuned to small nuances of emotions of the parent which may signal to the child that something is changing. What will come next? The child is hyperalert to change. Such patterns have implication for establishing intimate relationships as the child matures.”“[Aiden] is very anxious to – he’s like a little man who is concerned about taking care of [A.L.]. He’s very solicitous for her physical well being. He is very – he’s, in some ways, very polite and inquiring into her . . . needs in a level that you don’t expect in a three-year-old. You really don’t.”The psychologist opined that the relationship might improve if therapy could induce A.L. to make some fundamental alterations in her personality, but, of course, there was no guarantee that A.L. could work such sweeping changes.
Substantial evidence supported the juvenile court’s assessment that the relationship between A.L. and Aiden was not beneficial to Aiden. The relationship subjected Aiden to the very opposite of stability. The court had an exemplar of a healthy adult-child relationship before it – Aiden’s relationship with his foster family. A.L., by contrast, burdened Aiden with her dependency and required him to calm and soothe her. The court concluded it would not be beneficial to risk Aiden’s future on the chance that A.L. might someday become the parent her child needed. The bonding study at the very least provided substantial supporting evidence for this conclusion. The psychologist’s testimony also supported it.
We also cannot find the court abused its discretion in deciding the benefits of adoption outweighed maintaining Aiden’sproblematic and unstable relationship with A.L. In addition to the bonding study, the court considered A.L.’s abysmal record of failing to maintainsobriety when not under SSA’s watchful eye. No one doubted the sincerity of A.L.’s feeling for Aiden. What could not be relied upon was her ability to stay sober when she was on her own. On the benefit-of-adoption side of the scale was the strong bond between Aiden and his foster family and the safe and secure home the family had provided him for many months – one in which he had made substantial progress, both emotionally and physically. The family now wanted to make him a permanent member.The court was within its discretion in deciding that the detriment of terminating A.L.’s parental relationship did not outweigh the benefits of adoption for Aiden.
DISPOSITION
The orders denying A.L.’s section 388 petition and terminating her parental rights are affirmed.




BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.


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[1] All further statutory references are to the Welfare and Institutions Code.
[2] A.L. was hospitalized at least five times during her pregnancy for acute alcohol intoxication.
[3] A.L. asserted that Aiden was conceived as a result of a rape, and she did not know who the father was.
[4] As of the section 366.26 hearing, the foster family was in the process of completing an adoption home study.
[5] Section 366.26, subdivision (c), provides in pertinent part: “ (1) If the court determines . . ., by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . . Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶] [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
[6] A.L. attributes the denial of her request for a hearing to the court’s bias in favor of SSA and prejudice against her.
[7] The petition was filed on August 2, 2016;at that time, the section 366.26 hearing was set for August 9 and had been set for that date since April 18. The hearing was continued to August 25 because a witness was unavailable and then to August 30, when it finally took place.