In re Corey S.

Filed 8/13/07 In re Corey S. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Patricia S. appeals from juvenile court orders terminating her parental rights, and finding her children Corey S. and Angel S. likely to be adopted. (Welf. & Inst. Code,^[1] 366.26.) She contends that the court erred in terminating her parental rights and freeing the children for adoption because she asserts that adoption of the children was prevented by the beneficial relationship exception. ( 366.26, subd. (c)(1)(A) (hereafter beneficial relationship exception).) She also contends she received prejudicial ineffective assistance of counsel with respect to a section 388 petition for modification that was filed by her trial counsel. We reject these contentions and affirm.

Background

On April 11, 2005, the Marin County Health and Human Services Department (Department) filed a juvenile dependency petition under the terms of section 300 with respect to the two young children in issue in this appeal, Corey who was born in 2000, and Angel who was born in 2001. The petition also concerned another child, Anna, who was born in 2004, and is not in issue in this appeal.

The petition alleged that the children were at substantial risk of detriment as a result of the failure of appellant to properly care for them and protect them from harm. In particular, the petition alleged that appellant failed to maintain a clean and safe home and neglected the children and their health needs, resulting in untreated head lice, diaper rash, and other health problems and injuries. In addition, two specific incidents were reported. Anna, while unsupervised, had crawled into a bathtub full of water, which could have led to her drowning. Angel had suffered injuries to her neck, perhaps from becoming stuck in the cords of a mini-blind, or from abuse from her brother Corey.

It was also alleged that the parental rights of appellant, and the father of Corey and Angel, Michael M., who is not a party to this appeal, had previously been terminated as to another older child, Christopher.

The children were detained, and a jurisdictional hearing was held. The court sustained the allegations of the petition, and set the matter for a dispositional hearing.

On May 17, 2005, the dispositional hearing was held. The court determined it had jurisdiction over the children, and placed them in foster care. The court also ordered that appellant should receive extensive reunification services, and she received housing assistance, mental health counseling, and assistance with parenting skills. The matter was set for a review hearing within six months, but due to various delays that review hearing did not occur until March 14, 2006, so the trial court treated it as a twelve-month review hearing.

The social service reports prepared for the court, and the record of the review hearing on March 14, 2006, showed that appellant had made no real progress towards being able to properly care for the children, despite receiving extensive services. The social worker responsible for the case, Diane Polish, testified that appellant could not be relied upon to pay adequate attention to the children because she was inattentive to their needs and easily distracted by other matters such as her phone use or computer use. As a result, the children could not safely have unsupervised visits with her.

As the trial court observed, the record showed appellant lacked the ability to safely care for the children, and there had been no real progress or change in this respect. The trial court therefore ordered that reunification services should be terminated, and the matter should be set for a hearing to consider termination of appellants parental rights under the terms of section 366.26.

Section 388 Petition

On June 30, 2006, appellant filed a petition to modify under section 388, seeking to change the trial courts order of March 14, 2006, that terminated reunification services and set the matter for a section 366.26 hearing. The petition contended appellant had made substantial progress on her case plan, the children were extremely bonded to appellant, and Corey had made suicidal gestures after learning about the termination of reunification services to appellant. No declarations were attached to the petition.

The court noted an apparent problem with the proof of service of the petition, and ordered that the matter should be heard on July 11, 2006, with the matter to be ruled upon based on the papers submitted.

After the trial court noted the apparent problem with the proof of service of the petition, appellant filed an updated version of the section 388 petition on July 3, 2006, asserting that proper service had in fact been made on all parties, even though the proof of service for the original petition had been defective, and appellant repeated her request for a hearing.

The section 388 petition proceeded to a hearing ten days later on July 11, 2006. The trial court denied appellants oral request to present live testimony from witnesses, and denied the petition to modify, based upon the papers submitted. The matter was then continued until the hearing on the termination of parental rights under section 366.26.

Section 366.26 Hearing

The matter proceeded to a hearing under the terms of section 366.26 on August 30, 2006. At the hearing, Bree Marchman, the adoptions worker responsible for the case, testified that appellant had missed more scheduled visits with the children in the past few months. Further, although Marchman believed the relationship between appellant and the children was generally positive, especially for Corey, appellants role was more that of an older friend or a sibling rather than a parent who would supervise the children, and be attentive and responsible for their needs. Corey had made some suicidal gestures, such as putting a rope around his neck, but those gestures were made without Coreys awareness of the termination of appellants reunification services. Instead, these gestures were related to Coreys need for stability of placement, and his stress due to the transition to a new home with new foster parents. The childrens foster parents, who wished to adopt the children, were also willing to allow appellant to continue to have a relationship with the children.

The trial court found that the children were likely to be adopted; and the adoption should not be prevented by the beneficial relationship exception, which was not applicable to the relationship between appellant and children. The court therefore ordered the termination of appellants parental rights.

Discussion

The Beneficial Relationship Exception

Appellant first contends the trial court erred in terminating her parental rights, because she claims the beneficial relationship exception applied to prevent adoption of the children. As to this issue, we do not decide the question de novo, and instead we review the record for substantial evidence in support of the trial courts ruling that this exception did not apply to prevent termination of parental rights and adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576-577 (Autumn H.); In re Clifton B. (2000) 81 Cal.App.4th 415, 424-425.)

Appellant does not directly dispute the trial courts finding that the children were adoptable. Adoption is the permanent plan preferred by the Legislature, if adoption is possible. (Autumn H., supra, 27 Cal.App.4th at p. 573; In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Where the court finds a child cannot be returned to his or her parent, and is likely to be adopted if parental rights are terminated, the court must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the minor under one of five enumerated exceptions. ( 366.26, subd. (c)(1); In re L. Y. L., supra, 101 Cal.App.4that p. 947.)

In pertinent part, subdivision (c)(1) of section 366.26 provides that if the juvenile court finds the child adoptable, the court shall terminate parental rights and order the child placed for adoption . . . unless 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: [] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

In the case of Autumn H., supra, 27 Cal.App.4th 567, the court interpreted this beneficial relationship exception to mean 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. 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 parents rights are not terminated. (Id. at p. 575.)

In the present case, the courts finding that the beneficial relationship exception was not applicable is supported by substantial evidence. Appellant had for the most part maintained regular visitation with the children. Appellant argues that the Departments efforts to find an adoptive family that was willing to allow appellant to continue her relationship with the children shows that the children had a relationship with her that could be harmed by termination of her parental rights. However, Ms. Marchman testified the relationship between appellant and the children was more similar to that of a sibling or an older friend, rather than that of a parent and child. Elizabeth Moffet, the therapist for the two children related that Corey wanted to take care of his mother and did not feel safe with her. In addition, there was evidence that during meetings with the children, appellant often failed to focus on them. Thus, there was substantial evidence indicating that the children would not suffer great detriment from the termination of this bond so as to outweigh the benefits the children would receive from adoption. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 [a friendly or familiar relationship was insufficient, if it was not a parental relationship]; In re Derek W. (1999) 73 Cal.App.4th 823, 827 [a pleasant and emotionally significant relationship was not determinative, where the appellant did not occupy a parental role]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1420 [frequent and loving contact did not outweigh benefits of adoption where the appellants did not occupy parental roles].)

The stated preference of the Legislature is for adoption rather than guardianship or other less stable relationships. (In re L. Y. L., supra, 101 Cal.App.4th at p. 947.) Because the evidence indicates that the bond between the children and appellant, though positive, was not the sort of close parental bond that would outweigh the interest of the children in adoption by a loving family, we reject appellants reliance on the beneficial relationship exception.

Ineffective Assistance Claim

Appellant also contends she received ineffective assistance of counsel in connection with her section 388 petition to modify, because her trial counsel did not file declarations in support of the section 388 petition.

Section 388 provides, in pertinent part: (a) Any parent . . . 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 . . . set forth in concise language any change of circumstance or new evidence which [is] alleged to require the change of order or termination of jurisdiction. [] . . . [] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held.

Here, appellants trial counsel filed the section 388 petition in an attempt to overturn the trial courts order for the termination of reunification services to appellant. Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. . . . Section 388 provides the escape mechanism . . . to allow the court to consider new information. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

In the present case, the section 388 petition set forth three alleged new facts: The petition alleged that appellant had made substantial progress on her case plan; the children were extremely bonded to appellant; and Corey had made suicidal gestures after learning about the termination of reunification services to appellant. As previously observed, no declarations were filed with the petition. There was apparently some confusion in the mind of appellants trial counsel as to whether the trial court would permit live testimony of witnesses at the hearing on the section 388 petition. The trial court indicated that the matter should be heard on July 11, 2006, based on the papers submitted. When the section 388 petition proceeded to a hearing on July 11, 2006, the trial court denied an oral request by appellants counsel to present live testimony from witnesses, and denied the petition to modify, based upon the papers submitted. In this context, appellant now contends her trial counsel should have submitted declarations in support of the petition, and the failure to do so constituted ineffective assistance of counsel.

A parent is entitled to effective assistance of counsel in dependency proceedings. (In re Emilye A.. (1992) 9 Cal.App.4th 1695, 1707; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668.) However, in order to justify reversal of the trial courts ruling, an appellant must show both that counsels performance was so defective as to constitute ineffective assistance under an objective standard of reasonableness, and also that she suffered prejudice from the claimed ineffectiveness of counsel, so that there is a reasonable possibility that the ultimate outcome would have been different. (In re Kristin H., supra, 46 Cal.App.4th at p. 1668.) Under this standard, it is not enough for appellant to now assert that her trial counsel could have filed unspecified declarations by unspecified declarants, stating unspecified facts. In order to prevail on her claims of ineffectiveness and prejudice, appellant must show that there were specific facts that reasonably competent counsel could have properly included in declarations, and that could have led to a different result.

Significantly, appellant does not specifically point to any evidentiary facts that should have been included in declarations, in order to establish a change in circumstances and show that the children would benefit from a modification to the prior order terminating reunification services. The critical problem in this case, as the trial court repeatedly observed, was that appellant lacked the ability to safely care for the children, and there had been no change in that respect. There has been no showing that appellants trial counsel could have truthfully stated any facts in declarations that would have shown a change of circumstances in this respect so as to persuade the court to grant the section 388 motion.

The record of the proceedings, including the hearing on the termination of parental rights which was held about six weeks after the hearing on the motion to modify, also discloses that there had been no relevant change of circumstances that would establish that the granting of the petition was in the best interests of the children. The petition had alleged three things: that appellant had made substantial progress on her case plan; the children were extremely bonded to appellant; and Corey had made suicidal gestures after learning about the termination of reunification services to appellant. However, the record shows that there were no relevant changes in circumstances in these three respects.

First, although appellant had made some progress on other aspects of her case plan, such as in attending classes and maintaining housing, these were not critical changes of circumstances; the critical consideration, as the trial court observed, was that appellant was still unable to safely care for the children, and she had made no substantial progress in that regard. Appellant points to no evidence to the contrary that could have been included in declarations filed in support of the section 388 petition.

Second, although the children were bonded with appellant, this was also not a change in circumstances, and as previously discussed, this bond was not a parental bond of the sort that could preclude adoption. Therefore, declarations stating the facts in this regard would not have led to a different result.

Finally, although Corey had been acting out with suicidal gestures, the record shows these acts did not result from the termination of appellants reunification services, of which the children were unaware, and instead resulted from Coreys need for stability in placement, which adoption would help to alleviate.

Thus, the filing of declarations stating these facts would not have led to a different result. Appellant has not demonstrated prejudicial ineffectiveness of counsel from the fact that no declarations were filed in support of the section 388 petition. (See In re Kristin H,, supra, 46 Cal.App.4th at p.1668.) Thus, reversal is not required.

Disposition

The orders of the juvenile court are affirmed.

SIMONS, Acting P.J.

We concur.

GEMELLO, J.

NEEDHAM, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

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