In re Charles M

Filed 5/5/06 In re Charles M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

Carlos M. appeals a judgment terminating his parental rights to his minor sons, Charles M. and Jacob M. (together the minors) under Welfare and Institutions Code section 366.26.^[1] Carlos contends the court erred by denying his section 388 petition for modification seeking to have the minors returned to his custody. Carlos also challenges the sufficiency of the evidence to support the court's findings that the beneficial parent-child relationship exception did not apply to preclude terminating parental rights under section 366.26, subdivision (c)(1)(A). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2003 the Riverside County Department of Public Social Services-Protective Services (DPSS-CPS) filed petitions in juvenile court on behalf of 10-year-old Charles and seven-year-old Jacob under section 300, subdivisions (b) and (g) alleging they were at a substantial risk of serious harm because Carlos was unable to provide them with adequate shelter, protection, medical treatment and clothing. The police found the minors living in Carlos's car. The police arrested Carlos for providing false identification and willful child endangerment. Carlos's criminal history included arrests for spousal abuse, battery and numerous drug related offenses. The whereabouts of the minors' mother, Melissa S.,^[2] was unknown. The court held a detention hearing, made a prima facie finding on the petitions, and detained the minors in out-of-home care.

In the jurisdiction and disposition report, the social worker noted the minors continued to live in a licensed foster home. Carlos had been released from custody but his whereabouts were unknown. Carlos had a history of drug abuse and appeared to have anger management problems. He did not have a stable home for the minors and as a result, they lived in his car for extended periods of time. The minors appeared to have frequently lived without meals or proper clothing because Carlos did not have money.

Before the November 2003 jurisdiction and disposition hearing, Carlos was located in a Los Angeles County jail where he was serving a one-year sentence.

Carlos had prior convictions associated with drug possession and had been convicted for corporal injury on a spouse. When asked if he ever used drugs, he responded he had used drugs in the past but had been sober since 2002. Carlos had not completed a parenting class while in jail and when asked if he would complete a drug program, he said, "I don't feel I need a program. I don't feel I need one." He denied he lived in his car with the minors and instead stated he always provided a home for them.

Carlos attended the jurisdiction and disposition hearing. The court declared the minors dependents under section 300, subdivisions (b) and (g), placed them in out-of-home-care, and ordered Carlos to participate in reunification services. Carlos's case plan required him to submit to random drug testing, participate in individual counseling, pursue parenting education, and secure a stable residence for the minors. The court noted Melissa had been located and was living in San Diego County. At the conclusion of the hearing, the court ordered the matter transferred to San Diego County. The San Diego County Juvenile Court accepted the case and set the matter for a six-month review hearing.

During the next six months, the San Diego County Health and Human Services Agency (Agency) submitted several addendum reports addressing Carlos's progress with his case plan. The Agency reported Carlos was released from jail in January 2004. Social workers provided him with referrals for services, including individual counseling and substance abuse programs. Social worker Ruth Supranovich discussed Carlos's case plan with him on the telephone and provided him with a list of referrals for individual therapy, and for parenting, domestic violence and substance abuse programs. About one month later, another social worker called Carlos's cellular telephone number and work telephone number, and learned the numbers were no longer effective. The Agency attempted to reach Carlos by mail. After another month had passed, Carlos requested a list of referrals in Santa Monica. The Agency also reported Carlos had several criminal convictions including child endangerment, inflicting injury on a spouse and willful cruelty to a child.

In June 2004 Carlos submitted to a psychological evaluation conducted by Dr. Anthony Vail. Dr. Vail noted Carlos had a history of alcohol and drug abuse, including using heroin on a daily basis about five years before. Carlos appeared motivated to remain sober but was hesitant to participate in services. Dr. Vail recommended Carlos participate in substance abuse counseling, drug testing and therapy.

Carlos did not appear at the six-month review hearing, but was represented by counsel. The court found Carlos had made minimal progress with his case plan and returning the minors to his custody at that time would be detrimental to them. The court followed the Agency's recommendations and continued dependency and reunification services for an additional six months.

In its 12-month review report, the Agency recommended the court terminate services and set a section 366.26 selection and implementation hearing.

In September 2004 Carlos contacted the Agency and said he was in jail. Carlos did not participate in reunification services before his incarceration. A social worker mailed Carlos a prison packet. Carlos suggested placing Charles with Sheina S., Charles' sister, in South Carolina on a temporary basis. The Agency subsequently placed Charles with Sheina.

After considering the Agency's 12-month review report, the court found Carlos had not made substantive progress with his case plan and returning the minors to his custody would be detrimental to them. In February 2005 the court terminated services, set a section 366.26 hearing and requested an assessment report.

In July 2005 Carlos filed a section 388 petition seeking to have the minors returned to his custody. Carlos alleged that as changed circumstances, he had completed parenting and substance abuse classes while in jail and was no longer in custody. Carlos alleged as to the minors' best interests that he had maintained contact with the minors through letters and telephone calls while in jail and, when he was out of jail, by visits with the minors, which were pleasant. Further, Carlos loved the minors and felt he had an established parental relationship with them.

Carlos testified at the July 2005 section 388 hearing that he was released from jail in May 2005. While in jail, he completed a parenting class, which addressed anger management, and completed a substance abuse class. Carlos testified he called the minors at least once a week and regularly sent them letters. In addition, he secured two jobs after his release from jail and lived in Santa Monica in a two-bedroom apartment with his fiancé. Carlos stated he worked about 18 hours a day in an effort to secure financial stability. Carlos admitted, however, he had a drug problem in the past and had used methamphetamines in July 2002. He testified he was not currently involved in a drug treatment program.

The court heard social worker Sunny Schade's testimony concerning her monthly visits with the minors. Schade opposed placing the minors with Carlos because Carlos had been out of jail for a short period of time and it was not certain he would abstain from using drugs. She believed Carlos needed to participate in a 12-step program to maintain his sobriety. Further, Carlos's psychological evaluation stated he was emotionally unstable and needed counseling. Carlos had not participated in counseling and Schade stated counseling was necessary, considering Carlos's history of parental neglect.

In her section 366.26 assessment report, Schade noted Charles was thriving in his current placement with Sheina. The minors were doing well in school and Charles understood Sheina wanted to adopt him. Jacob was eager to move in with Charles and Sheina and stated he wanted to live with Sheina because if Carlos went to jail, "this will start over again." Schade believed the minors were adoptable and Sheina was extremely motivated to adopt them. Schade noted the relationship between Carlos and the minors was "parental" in nature but Carlos was not in a position to care for them or provide them with stability.

Carlos was in and out of jail for most of the dependency proceedings. He remained out of custody from January 2004 through August 2004. When Carlos was in California, he had visits with the minors. However, when he was incarcerated in Arizona, visits with them were not possible. During that time, Carlos maintained contact with the minors through telephone calls and letters.

After considering the evidence and hearing argument of counsel, the court denied the section 388 petition, finding Carlos had not shown changed circumstances. The court proceeded with the selection and implementation hearing. The court found by clear and convincing evidence that the minors were likely to be adopted if parental rights were terminated. The court further found none of the exceptions to section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoptive placement.

DISCUSSION

I

Carlos argues the court erred by denying his section 388 modification petition to return custody of the minors to him. He asserts he showed circumstances had changed and returning the minors to his custody would serve the minors' best interests.

A

Under section 388, a parent may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Michael B. (1992) 8 Cal.App.4th 1698, 1704.) When two or more inferences reasonably can be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M., supra, at pp. 318-319; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Stephanie M., supra, at p. 318.)

When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity " . . . 'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.) Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interests of the child." (Ibid.)

B

Carlos alleged he completed parenting and substance abuse classes while incarcerated. He further alleged that while he was in jail, he maintained contact with the minors through letters and telephone calls. He stated that when not in jail, he had pleasant visits with the minors. The record shows, however, Carlos offered no evidence of participation in drug counseling or drug testing. He admitted he was not involved in drug treatment, a 12-step program or individual counseling. Further, although Carlos's psychological evaluation reported he suffered from emotional instability and called for individual counseling, he did not participate in any counseling sessions. In addition, although Carlos had secured employment after his release from jail and testified he lived in an apartment, he was living in his fiancé's apartment and he admitted still striving to obtain financial stability. Thus, there was no evidence Carlos was ready and able to care for and protect the minors. He admitted he did not have financial stability and had not completed an anger management course to address his history of domestic violence. Carlos's circumstances may have been "changing" but they had not changed sufficiently to warrant returning the minors to his custody. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Casey D., supra, 70 Cal. App.4th at p. 48.) A petition that alleges merely changing circumstances does not promote stability for the child or the child's best interests because it would mean delaying the selection of a permanent home to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Baby Boy L., supra, at p. 610.)]

Even had Carlos shown changed circumstances, he did not show returning the minors to his custody or providing further reunification services were in the minors' best interests. After termination of reunification services, the focus of dependency proceedings is to provide the child with permanency and stability. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256; In re Marilyn H., supra, 5 Cal.4th at p. 310.) At the time the court held a hearing on the section 388 petition, the minors had been out of Carlos's custody for almost two years. During this time, Carlos was not involved in parenting the minors and when the court held the section 388 hearing, he admittedly had not yet reached financial stability and instead was living with his fiancé in her apartment. Further, Carlos had not addressed the problems that led to these dependency proceedings, including substance abuse, anger management control, domestic violence and repeated incarcerations. During the dependency period, Carlos had not progressed beyond supervised visitation. Although Carlos had appropriate visits with the minors, he did not show he would be able to parent the minors and their relationship with him did not outweigh the minors' need for stability and security. It was not in the minors' best interests to postpone implementing a permanent plan of adoption. The court acted within its discretion by denying Carlos's section 388 modification petition.

II

Carlos challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating his parental rights to the minors. He asserts he maintained regular visitation and contact with the minors, who would benefit from continuing the parent-child relationship.

A

We review the court's finding that the beneficial relationship exception does not apply under the substantial evidence standard. (In re Casey D., supra, 70 Cal.App.4th at p. 53; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D., supra, at pp. 52.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds that a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds that termination would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1)(A)-(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A) is an exception to the preference for adoption if termination of parental rights 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." 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., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)

To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) The parent must show that he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between the child and the parent. (In re Autumn H., supra, at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Carlos regularly contacted the minors when he was out of custody, and while in jail he regularly telephoned and wrote letters. However, he did not show his relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption.

During the few visits the minors had with Carlos when he was not in jail, the minors enjoyed seeing Carlos and the visits were pleasant. However, even though the Agency noted the minors had a relationship with Carlos, he did not occupy a "parental role" in their life, primarily because he was in and out of custody for most of the dependency period. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Further, the minors did not rely on Carlos to meet their needs and they recognized Carlos would not be able to provide them with a stable home. Jacob told his social worker he "want[s] to be safe. If I live with my daddy he might go to jail. . . . I want to live with Sheina." The social worker noted Charles loves his father but he also loves Sheina, is happy living with her, and wants to be adopted by her. Thus, the minors did not rely on Carlos to meet their needs. They instead were happy with the possibility of being adopted by Sheina. In the social worker's opinion, the minors did not have a beneficial parent-child relationship with Carlos and their relationship with him did not outweigh the benefits of a permanent home. The court was entitled to find the social worker's opinion credible and give great weight to her assessment. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at p. 53; cf. In re Amber M. (2002) 103 Cal.App.4th 681, 690 [beneficial parent-child relationship that clearly outweighed benefits of adoption was common theme running through evidence from therapists and court-appointed special advocate].)

The evidence did not show terminating Carlos's parental rights would likely cause the minors great harm and deprive them of a substantial, positive emotional attachment. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Any possible benefit to the minors of continuing a relationship with Carlos was outweighed by the benefits of adoption. Where, as here, the biological parent does not fulfill the parental role, "the child should be given every opportunity to bond with an individual who will assume the role of parent. . . . To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Substantial evidence supports the court's finding that the beneficial parent-child relationship did not apply to preclude terminating parental rights.

DISPOSITION

The judgments are affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] Melissa is not a party to this appeal.