In re Erick M.






Filed 9/30/11 In re Erick M. CA4/1





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re ERICK M., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JENNIFER S., Defendant and Appellant.	D059619 (Super. Ct. No. SJ12111)

APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.

Jennifer S. appeals the judgment terminating her parental rights to her son, Erick M. Jennifer contends the juvenile court abused its discretion by summarily denying her modification petition (Welf. & Inst. Code,[1] § 388) and erred by declining to apply the beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) to termination of parental rights. We affirm.
BACKGROUND
In November 2008 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for one-month-old Erick. The petition was based on domestic violence among Jennifer, Erick's father and the maternal grandmother and on Jennifer's severe bipolar disorder,[2] which involved significant mood swings and for which Jennifer refused to take medication. Erick was detained in foster care. In December the court entered a true finding on the petition and ordered Erick placed in foster care.
In December 2009 or January 2010 Erick began a 60-day trial visit with Jennifer. In March 2010 the trial visit became a placement. In June the Agency filed a supplemental petition (§ 387) after Jennifer hit Erick on the buttocks, hand and head; Jennifer and her boyfriend engaged in domestic violence in Erick's presence; and Jennifer said she did not need parenting or anger management classes. Erick was detained in foster care. In August the court entered a true finding on the supplemental petition, ordered Erick placed in foster care, terminated Jennifer's reunification services and set a section 366.26 hearing.
In December 2010 Erick was moved to a prospective adoptive home. In March 2011 Jennifer filed her section 388 petition. The court summarily denied the petition and terminated parental rights.
THE SECTION 388 PETITION
Section 388 allows the juvenile court to modify an order if a parent establishes, by a preponderance of the evidence, that changed circumstances or new evidence exist and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing as to both of these elements. (In re Zachary G., supra, at p. 806; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The petition should be liberally construed in favor of granting a hearing, but "[t]he 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." (In re Zachary G., supra, at p. 806.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P., supra, at p. 189.) We review the summary denial of a section 388 petition for an abuse of discretion. (In re Zachary G., supra, at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)
Jennifer's section 388 petition asked the court to vacate the August 2010 orders removing Erick from her custody and setting the section 366.26 hearing. The petition asked the court to return Erick to Jennifer's care with family maintenance services.
As changed circumstances, the petition alleged the following. Jennifer continued to participate in individual therapy. The therapist reported they were working on issues of parenting, anger control and a plan for work and self-support; Jennifer was working to strengthen her family relationships and social support system; and she had matured and gained new knowledge of her parental responsibilities.[3] Jennifer's psychiatrist reported that she "remains compliant with medication." Jennifer had completed an additional parenting course and two 10-week anger management courses, and continued to attend an anger management course. She had recently enrolled in domestic violence classes and had completed three out of 10 sessions. She had obtained suitable housing for herself and Erick, a two-bedroom home with a family member. Jennifer's visitation remained consistent, and the social worker had recently added another weekly visit. Jennifer had not been involved in any domestic violence since Erick was removed.
The petition alleged the proposed modification was in Erick's best interests because Jennifer had participated in services and reunified with him in December 2009, he had lived with her until June 2010, he had a large extended family with whom he was bonded and living with Jennifer would restore him to that family.
The court found that Jennifer had not made a prima facie showing that circumstances had changed, or that it would be in Erick's best interests to be removed from his prospective adoptive home, where he was thriving, and be returned to Jennifer, who had not shown that she could care for him properly. The court did not abuse its discretion in making these findings.
Jennifer began receiving services before the dependency petition was filed. She received more than 18 months of services. The services included domestic violence, anger management and parenting courses; individual therapy; psychotropic medication evaluation and monitoring; and a job readiness program. In April 2009 Jennifer's psychiatrist reported that Jennifer did not need medication. That month Jennifer began attending a domestic violence support group and individual therapy. In June she completed an anger management course, a work readiness course and a parenting course. She continued to attend parenting classes. In June Jennifer's therapist wrote a letter to the social worker stating Jennifer was doing well and "displayed a lot of maturity, growth, and responsibility;" "did not display a severe pathology that would prevent her from being a good parent;" and "appear[ed] . . . ready for reunification."
After Erick was returned to Jennifer's care, she participated inconsistently in therapy and in-home support services and failed to communicate with the Agency. In May 2010 Jennifer was arrested after threatening her boyfriend with a knife, scratching his face and pulling a clump of hair from his scalp. The violence occurred when Jennifer hit Erick, and her boyfriend tried to stop her. Jennifer screamed and appeared to be out of control.
After Erick was removed from Jennifer the second time, Jennifer failed to communicate with the Agency and follow through with offered services, including therapy and a 52-week domestic violence program. In November 2010 Jennifer said that she did not "understand why Erick even came into the system in the first place as she never did anything wrong and never abused him." Jennifer also claimed that she was the victim, not the aggressor, in the May 2010 domestic violence episode, and her ex-boyfriend had injured himself. The 10-week domestic violence program Jennifer began in February 2011 was for victims, not perpetrators. Jennifer did not have a job and was not enrolled in school, and relied on the maternal grandmother for support.
Beginning on January 6, 2011, Jennifer was late to most of her supervised visits. During visits, she rarely assumed a parental role, usually observed Erick rather than interacting with him and was sometimes inattentive. At a visit in January 2011 Jennifer yelled at the social worker and swore in Erick's presence. When the foster mother was present, Erick turned to her, not Jennifer, for comfort and help and to share excitement. Erick was happy to see Jennifer and appeared comfortable with her, but did not appear sad when visits ended. Although the social worker told Jennifer to have maternal relatives call the foster parent to arrange visits, the relatives never called.
Two and one-half-year-old Erick had been in Jennifer's custody for a total of fewer than seven months. He had last lived with her more than 10 months before the court summarily denied the section 388 petition. Erick had been in the prospective adoptive home for three months. Since being placed in the prospective adoptive home, he was more stable, less aggressive and more affectionate. His developmental skills and speech had improved. He spontaneously hugged and kissed his foster mother, called her "mommy"[4] and appeared comfortable in her presence. He was quickly becoming attached to her and had adjusted well to the home.
As an "escape mechanism" available after the termination of reunification services and before termination of parental rights, section 388 protects the due process rights of a parent who can show a legitimate change of circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295, 307-310.) "Childhood does not wait for the parent to become adequate." (Id. at p. 310.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The focus was on Erick's need for permanency and stability and there was a rebuttable presumption that continued out-of-home placement was in his best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The court did not abuse its discretion by summarily denying Jennifer's section 388 petition.
THE BENEFICIAL RELATIONSHIP EXCEPTION
If a dependent child is adoptable,[5] the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists 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).) A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) If terminating parental rights "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome . . . ." (Ibid.) The existence of a beneficial relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude that although Jennifer maintained regular visitation, except for a month or so,[6] there is substantial evidence to support the findings that the benefits of adoption outweighed the benefits of maintaining Erick's relationship with Jennifer and termination of parental rights would not be detrimental to him. (Id. at pp. 576–577.)
At the time of the section 366.26 hearing, Erick was two and one-half years old. He had been in Jennifer's custody for a total of fewer than seven months and had last lived with her more than 10 months before the hearing. Erick had blossomed in the prospective adoptive home where he had lived for three months and was attached to his prospective adoptive parent. Although there was affection between Erick and Jennifer, they did not share a parent-child relationship and their relationship did not promote Erick's "well-being . . . to such a degree as to outweigh the well-being [he] would gain" by being adopted. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Jennifer cites In re S.B. (2008) 164 Cal.App.4th 289, in which this court concluded the juvenile court erred by declining to apply the beneficial relationship exception. (Id. at p. 301.) In that case, the child continued to display a strong attachment to the appellant father after her removal; they "had an emotionally significant relationship;" and the father visited consistently. (Id. at pp. 293–294, 298–301.) Unlike Jennifer, the father in that case "complied with 'every aspect' of his case plan" (id. at p. 298), empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (id. at p. 298). In re S.B. is distinguishable from the instant case.
DISPOSITION
The judgment is affirmed.


NARES, J.

WE CONCUR:



McCONNELL, P. J.



McDONALD, J.




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