In re D.C.

Filed 10/25/06 In re D.C. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Juvenile Court of Los Angeles County,

Valerie Skeba, Referee. Affirmed.

Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel, for Plaintiff and Respondent.

M. H., mother, appeals the summary denial of her Welfare and Institutions Code section 388 petition[1] and the termination of her parental rights in accordance with section 366.26. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Mother has three children: D. C. (born August 1998), F. C. (born July 1999), and J. C. (born November 2000). The children were detained on August 23, 2002. The sustained amended section 300 petition alleged the children were endangered by mother’s history of substance abuse; that she had mental problems, including suicidal ideation; that she failed to provide routine immunizations; and that she engaged in a physical altercation with father in 1999. Mother’s family reunification plan required her to participate in individual counseling including parenting, drug counseling, and random drug testing. She was given monitored visitation with the children.

Mother’s compliance with her plan was uneven. At the six-month review hearing, the dependency court found her in compliance based on evidence that she had completed a six-week parenting class, had enrolled in Project Impact, had tested negative, and had been visiting the children. The court ordered six months of additional services to mother. But by the 12-month review on November 19, 2003, the court found mother was no longer in compliance with her program. The court set a section 366.26 permanency planning hearing for March 2004.

By August 2004, the children were placed with their current foster family. Mother had completed 16 weeks of anger management classes, a parenting class, and various programs and sessions for her substance abuse problem; had tested negative for six months; and had a job and a home for the children. In October 2004, over the Department of Children and Family Services’ (DCFS) opposition, the juvenile court granted mother’s first section 388 petition. The court vacated the section 366.26 hearing date and ordered the continuation of reunification services.

Mother’s positive performance suffered a reversal in January 2005. She had been dropped from her program for poor attendance and had missed several drug tests. After being the victim of an armed robbery at the restaurant where she worked, mother quit her job. She missed four visits with the children in December and January. A DCFS inspection of mother’s home revealed several conditions which would pose dangers to the children if they were returned to her custody, including broken glass and rusted furniture in the backyard.

By the date of the status review in April 2005, mother had been diagnosed with depression. She was on medication for this condition and was enrolled in the Shields Eden Dual Diagnosis Program for mental health and substance abuse issues. DCFS reports in May 2005 revealed problems with mother’s parenting during visits. At the contested section 366.22 hearing, mother admitted that she had relapsed and used methamphetamine in December 2004 or January 2005, when she was very depressed. The court noted mother had been making progress for three months, but concluded that this was not sufficient since she had been offered services for three years. The court set a section 366.26 hearing and mother challenged the setting of this hearing in our court by petition for writ of mandate. We concluded that substantial evidence supported the findings underlying the setting of the hearing and denied the petition.

Mother filed a new section 388 petition in August 2005. The petition was denied without a hearing. In September 2005, mother filed another section 388 petition, which was also denied. She appealed both denials. We dismissed the first appeal as moot and affirmed the second, holding that the court did not abuse its discretion as mother had failed to show that the change she sought was in the best interests of the children.

A November 2005 DCFS report stated that the children were ready for adoption. DCFS concluded that while mother had committed herself to her reunification programs over the last six months, the children had detached themselves from her during the previous two years. The court scheduled the section 366.26 hearing for February 2006, which was later reset for March 28, 2006.

On March 24, 2006, mother filed a new section 388 petition, asking the court to order a bonding study. Mother’s attached declaration claimed that she had completed parenting and dual diagnosis programs, had been sober for over a year, had a job and could support her children, had a home approved by DCFS, and wanted her children back. A declaration from her sister stated that the children loved mother and were bonded with her. She also included a letter from her therapist, who noted improvement in her decision-making, communication, commitment to her children, and ability to seek help. The petition was denied without a hearing and the bonding study was not ordered. On March 28, 2006, at the section 366.26 hearing, the court found the children adoptable and terminated parental rights. Mother now appeals the denial of this section 388 petition and the termination of her parental rights.

DISCUSSION

I

Mother argues the dependency court abused its discretion in denying her section 388 petition without a hearing and without first ordering a bonding study. “A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A parent must make a prima facie showing of both elements to trigger a hearing. (Ibid.) “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.” (Ibid.) “[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing.” (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The summary denial of a section 388 petition is reviewed for abuse of discretion. (Id. at p. 460.)

Although mother may have demonstrated changed circumstances, she did not make a prima facie showing that the change would promote the best interests of her children. Mother sought the reinstatement of family reunification services and the return of the children to her care. In the alternative, she wanted overnight weekend visitation. “After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child.” (In re Angel B., supra, 97 Cal.App.4th at p. 464.) This presumption is strengthened when permanent placement is leading to adoption. (Ibid.)

By the time mother filed her fourth section 388 petition, reunification services had been terminated twice and her young children had been out of her care for over three and one-half years. The foster parents, who were taking steps to adopt the children, “helped the children thrive and develop in the observable areas of academics, emotionally and improved self esteem.” The children were “‘emotionally attached and dependent’” upon their foster family, and were exhibiting signs of progress in therapy sessions. Further, the children were “willing and wanting” to stay with their prospective adoptive family.

Even if the facts alleged in mother’s section 388 petition were true, she failed to demonstrate how a modified order would be in the best interests of the children. During her visits, mother was unable to balance her attention among all three children and was unable to exercise authority. The children misbehaved and were “out of control” during visits. DCFS also noted that the children had difficulty concentrating in school after visits with mother. Teachers reported that the children were “anxious” and “uneasy” after visiting mother and that mother’s attempts to help them with homework were sometimes incorrect. Mother did not show that she could adequately parent the children during short monitored visits, let alone overnight weekend visits. Accordingly, she did not show that overnight weekend visitation would be in the children’s best interests.

Also, D. C., concerned about the well-being of her two younger brothers, exhibited significant anxiety over visiting mother. D. C.’s stress decreased when she accepted that the visits were only visits. F. C.’s angry outbursts at female caregivers, a projection of anger towards mother, had subsided as of November 2005. Mother did not present a prima facie case that reinstating reunification services and returning the children to her care would be in the best interests of the children. The court had no obligation to reinstate reunification services beyond 18 months unless mother showed “special needs,” which she did not. (See Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1388.) “On this showing, it was not an abuse of discretion to deny Mother a hearing on the section 388 petition because even if the evidence at the hearing supported the facts alleged by Mother’s petition, those facts would not have supported the conclusions that [the children’s] best interests would be served by the order requested by Mother.” (In re Zachary G., supra, 77 Cal.App.4th at p. 808.)

The court also did not err by declining to order a bonding study. “While it is not beyond the juvenile court’s discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process.” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197.) “The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court’s action, the juvenile court could have reasonably refrained from ordering a bonding study.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341.)

In making its decision, the court was presented with current documents, including an interim review report prepared by DCFS, mother’s declaration, her sister’s declaration, a letter from mother’s therapist, an information report from the children’s social worker, and a letter from the children’s therapist. Mother argued that because she had made significant progress in treatment and counseling, and because the children love her and want to be with her, a bonding study was appropriate. We do not believe mother presented compelling circumstances to warrant a bonding study this late in the process, four days before the section 366.26 hearing to terminate parental rights. Mother had almost three years before reunification services were terminated for the second time. Under the dependency scheme, mother “was required to muster her evidence before the termination of reunification services.” (In re Richard C., supra, 68 Cal.App.4th at p. 1196.) “The Legislature did not contemplate such last-minute efforts to put off permanent placement.” (Id. at p. 1197.) Viewing the evidence in a light most favorable to the juvenile court’s decision, it was reasonable for the court to refrain from ordering a bonding study.

II

Mother also argues that the court erred in terminating parental rights because she established an exception to termination under section 366.26, subdivision (c)(1)(A). Once a juvenile court determines that a child is likely to be adopted, the court must terminate parental rights unless an enumerated exception applies. (§ 366.26, subd. (c)(1).) Section 366.26, subdivision (c)(1)(A) provides for an exception where: (1) the parent maintains regular visitation and contact with the child, and (2) the child would benefit from the continuing relationship with the parent. A court’s order terminating parental rights and ordering adoption as the permanent plan is reviewed for substantial evidence. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; cf. In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [holding that the standard of review is abuse of discretion but noting that the “practical differences between the two standards of review are not significant”].)

It is not disputed that mother maintained regular visitation and contact with her children. The question is whether the children would benefit from a continuing relationship with her. “Although the kind of parent/child relationship which must exist in order to trigger the application of section 366.26, subdivision (c)(1)(A) is not defined in the statute, it must be sufficiently strong that the child would suffer detriment from its termination.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) The court must balance “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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “It would make no sense to forego adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1350.)

The juvenile court referee correctly found that mother was not “acting in a parental role” and “never demonstrated that she’s been able to take care of them for longer periods of time and parent them appropriately.” Mother loved her children, played with them, planned activities for them, ate with them, and helped them with their homework. She also brought the children clothing and lotion for F. C.’s eczema. However, during her visits, mother was unable to balance her attention among the children and was unable to exercise authority. The children did not show they respect her, they “roll over” her, and “sit and ignore her or runaround in the room totally distracting her attempt to have order and focus on tasks.” A social worker supervisor observed that mother was trying to lure the children with toys and gifts. Also, the children had difficulties in school in the days after their visits with mother. Section 366.26, subdivision (c)(1)(A) requires that a parent show she has a parent/child relationship with her children, rather than just a friendship. (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Mother has failed to demonstrate this.

A DCFS director reported that mother is “disconnected from the children and does not ask pertinent questions of the children to understand them but directs them.” As previously discussed, D. C. exhibited significant anxiety over visiting mother. The children had been out of mother’s care for over three and one-half years and had detached themselves from her during those years. The children expressed their desire to continue to live with the prospective adoptive family. Mother did not meet her burden of proving termination would be detrimental to the children. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) “[I]t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Ibid.) The finding that the children would not suffer detriment by terminating mother’s parental rights is supported by substantial evidence. Thus, the court did not err in determining that the exception in section 366.26, subdivision (c)(1)(A) did not apply.

DISPOSITION

The orders terminating parental rights and denying the section 388 petition for modification are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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