In re Jamie K.

Filed 3/28/07 In re Jamie K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Referee. Affirmed.

Robin K. appeals a judgment of the juvenile court terminating his parental rights to his minor daughter Jamie K. under Welfare and Institutions Code^[1]section 366.26. Robin contends: (1) the court erred by summarily denying his section 388 petition for modification; (2) the order selecting adoption as Jamie's permanent plan was based on insufficient evidence of the caregiver's eligibility to adopt; and (3) the evidence supported a finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) applied to preclude terminating his parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2004, eight-year-old Jamie became a dependent of the juvenile court under section 300, subdivision (a) based on findings Robin subjected Jamie to a substantial risk of serious harm when he pointed a gun at her and the paternal grandmother (Rose) and threatened to kill them, he physically abused Jamie, and he exposed Jamie to domestic violence with Rose. The court removed Jamie from Robin's custody, placed her with Rose and ordered Robin to participate in reunification services, including anger management, individual counseling, a psychological evaluation, parenting education and the Substance Abuse Recovery Management System (SARMS) program.

When Jamie was an infant, her mother committed suicide. Jamie had always lived with Rose and Robin in Rose's home. Jamie loved Robin and wanted him to get help, but she did not want to "be scared all the time." She reported Robin drank a lot, including when he drove her in the car, and acted "mean [and] scary" when he drank. Rose said Robin threatened to kill her and Jamie on several occasions, and was physically abusive to both of them. Robin had a criminal history involving driving while intoxicated and violating a domestic violence restraining order.

Robin denied ever being intoxicated in front of Jamie, claiming he rarely drank alcohol. He denied threatening to kill Rose or Jamie, but admitted he had a bad temper. Robin said Jamie lied.

During the next six months, Robin participated in services and visited Jamie fairly regularly. One visit was canceled when Robin appeared intoxicated. Visitation was suspended because Robin missed three visits. When visits resumed, he missed another visit because he was incarcerated on charges of driving under the influence and resisting arrest.

Jamie and Rose were living in an undisclosed location. Jamie had symptoms of anxiety and depression, and was afraid Robin would discover where she lived. She enjoyed visits with Robin, but her nervous mannerisms increased when she spoke of him.

A psychological evaluation showed Robin had diagnoses of delusional disorder, grandiose type, alcohol abuse and borderline intellectual functioning. He did not take responsibility for his actions and minimized his alcohol problem. A psychiatric evaluation was recommended.

The social worker for the San Diego County Health and Human Services Agency (Agency) reported Robin had made some progress toward his treatment goals. At a six-month review hearing, the court ordered additional reunification services for Robin.

Robin enrolled in a residential drug and alcohol treatment program and was unable to visit Jamie for four months. Jamie was doing well in Rose's home, and her anxiety had decreased after participating in individual therapy. Although Jamie expressed sadness about Robin, she was happy to know he had sought treatment for his problems. She expressed an interest in living with him. The court ordered six more months of services and unsupervised visits for Robin.

Robin continued to participate in services and was having unsupervised visits with Jamie. He told Jamie the police beat him up after he was in a car accident. This information caused Jamie to become upset and concerned for her father. Robin also told Jamie he was robbed at a liquor store and witnessed two people get shot. He took Jamie with him to look for the robber because he wanted his money back. When the social worker suggested conversations with Jamie about the arrest and robbery were inappropriate and could cause Jamie further anxiety, Robin became defensive and said he could discuss whatever he wanted with his daughter.

During an unsupervised visit at Robin's apartment, Jamie was ill and vomited on the carpet, bathroom floor and on herself. Robin made her clean it up. When Jamie vomited again, Robin became extremely angry at her and blamed her for clogging the toilet. He also blamed Jamie for the juvenile court's involvement. Visits then became supervised.

Jamie no longer felt safe being returned to Robin's care, stating Robin needed "more time to change." Although Jamie did not want to live with Robin, she did not want to hurt his feelings.

Robin's therapist reported Robin was distraught and emotionally unstable. Robin complained about limited visitation with Jamie, but declined an offer of additional supervised visits with her. Robin asked that Rose not feed Jamie dinner on Friday evenings because he wanted to have dinner with Jamie. However, at the next visit, Robin fed Jamie a candy bar and soft drink, and later explained he could not afford to feed her dinner every Friday.

At an 18-month review hearing, the court heard the testimony of Robin's therapist, Robin and the social worker. The court also accepted Jamie's stipulated testimony that she did not want to live with Robin, she wanted to live with Rose, and she would like to continue visiting Robin once a week in a supervised setting. The court terminated reunification services and set a section 366.26 selection and implementation hearing.

Social worker Cathy Reed assessed Jamie as adoptable because of her ethnicity, good health, appropriate development and Rose's willingness to adopt her. There were six other families in San Diego interested in adopting a child with Jamie's characteristics. Jamie was usually happy to see Robin at visits. Robin often brought food, snacks or drinks and was affectionate with Jamie. He dominated the conversation, talking mostly about himself. In Reed's opinion, Robin did not occupy a parental role in Jamie's life. Rather, Jamie was parentified because she was perceptive and responsive to her father's needs. When visits ended, Jamie was not sad or anxious, and she did not ask for visits to be extended. She was ambivalent when visits were canceled. In Reed's opinion, Jamie did not have a beneficial parent-child relationship with Robin.

Robin claimed he was the "victim" in this case and had done nothing wrong. He accused the social workers, health care professionals, attorneys and judge of being liars, stating everyone was trying to destroy his life and take Jamie away from him. Robin said the services he completed were a "joke" and mostly useless.

Jamie was still afraid of Robin. She loved him very much, but no longer wanted to live with him. Jamie wanted to live with Rose and visit Robin as long as visits were supervised.

Robin filed a section 388 petition for modification, seeking to have the court vacate the selection and implementation hearing and place Jamie with him. As changed circumstances, Robin alleged he was involved in individual therapy and was participating in a drunk driving program. As to best interests, Robin claimed he had "addressed his issues."

In an addendum report, the social worker noted Jamie saw Robin at the courthouse and was afraid he followed her and Rose to their car. Later that day, Jamie felt ill and asked to cancel a visit with Robin. She thought she saw Robin outside her window holding a knife. In general, Jamie had become more fearful and weepy, and was having difficulty falling asleep.

The court summarily denied Robin's section 388 petition, finding there was no prima facie showing of changed circumstances or that the proposed modification was in Jamie's best interests.

At a contested selection and implementation hearing, Robin testified he was visiting Jamie once a week for two hours in a supervised setting. He did not believe Jamie was afraid of him. She was always happy to see him, told him she loved him and was sad when visits ended. Robin wanted Jamie to live with him and it made him sad that she wanted to live with Rose.

According to Jamie's stipulated testimony, she wanted to live with Rose, not Robin. She wanted to continue having weekly visits with Robin only if they were supervised. She would be sad if she could not see Robin. Jamie understood the concept of adoption and wanted to be adopted by Rose.

Reed testified she discussed adoption with Jamie, who said she wanted Rose to adopt her. Jamie still loved Robin but realized she could not live with him. She was afraid of Robin and therefore wanted visits to be supervised. Reed recommended adoption for Jamie because she needed a permanent and stable environment without fear or the threat of physical violence. In Reed's opinion, Jamie viewed Rose as her daily caregiver and parent. It would not be detrimental to Jamie if Robin's parental rights were terminated.

After considering the evidence and hearing argument of counsel, the court found Jamie was adoptable and none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.

DISCUSSION

I

Robin contends the court erred by summarily denying his section 388 modification petition. He asserts he made a prima facie showing his circumstances had changed and the proposed modification returning Jamie to his custody was in Jamie's best interests.

A

Under section 388, a party 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 (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]" (In re Marilyn H., supra, 5 Cal.4th at p. 310.) If the petition presents any evidence a hearing would promote the child's best interests, the court will order the hearing. (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "However, if 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.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

B

As changed circumstances, Robin alleged he was now participating in individual and group counseling through Episcopal Community Services. However, at the time services were terminated, Robin had already participated in counseling for almost two years without successfully addressing issues of his mental health, hostility toward service providers, failure to acknowledge Jamie's fear of him and inability to take responsibility for Jamie's dependency. Any further participation in counseling was not new evidence or changed circumstances as contemplated by section 388. At most, Robin's additional attempt at counseling was a "changing" circumstance. A petition that alleges 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 failed to reunify with the child, might be able to reunify at some future point. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) The court could reasonably find any changes in Robin's circumstances were "not legally sufficient to require a hearing on [his] section 388 petition." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)

Further, Robin made no prima facie showing that returning Jamie to his custody was in Jamie's best interests. Jamie remained afraid of Robin, did not want to live with him and was willing to have only structured, limited and supervised visits. Nevertheless, Robin continued to deny Jamie was afraid of him and he wanted her to live with him despite her wishes, showing he lacked insight and empathy for Jamie and remained insensitive to her needs.

At the time of the hearing on Robin's modification petition, the focus of the proceedings had shifted from family preservation to providing Jamie with a safe, stable and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Jamie has lived with Rose for most of her life and views her as a parent. Where, as here, " 'custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Because the facts alleged would not have sustained a favorable decision on the modification petition, Robin was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

II

Robin contends the court erred by selecting adoption as Jamie's permanent plan without sufficient evidence that Rose would ultimately qualify as an adoptive parent. He asserts Agency had not yet conducted a criminal and social assessment of Rose, or determined whether Rose had the capability to meet Jamie's needs as required by section 366.21, subdivision (i)(4).

A

To the extent Robin is challenging the sufficiency of the assessment report, he has forfeited the issue by not raising it in the trial court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) In any event, an assessment report need not be entirely complete, as long as it is in substantial compliance with the statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1482.) When an assessment is challenged as incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant. (In re John F., supra, 27 Cal.App.4th at p. 1378; In re Crystal J., supra, 12 Cal.App.4th at p. 413.)

B

In the social worker's opinion, Jamie was adoptable because she was physically and emotionally healthy, Rose was committed to adopting her, and there were six other families in San Diego willing to adopt a child with Jamie's characteristics. Where, as here, "evidence of a minor's adoptability is not based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the potential adoptive parent's suitability to adopt is irrelevant to the issue of whether the minor is likely to be adopted." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1651.) Further, although Rose's adoptive home study had not yet been completed, Rose had no criminal or Child Protective Services history. Her home had been approved several times for Jamie's placement and the social worker had no concerns about Rose's ability to adopt. Jamie had lived with Rose since she was two months old and Rose was meeting all of Jamie's needs.

In spite of any deficiencies, the assessment report contained substantial evidence of Jamie's adoptability, including her general characteristics and the interest of several prospective adoptive families. The totality of circumstances shows the court had sufficient information to determine there were no impediments to Jamie being adopted, and that adoption was the appropriate permanent plan for her.

III

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

A

We review the judgment for substantial evidence. (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 consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent 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.)

"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 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 termination of parental rights would be detrimental to the child under one of five specified exceptions. ( 366.26, subd. (c)(1) (A)-(E); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

Section 366.26, subdivision (c)(1)(A) provides an exception to the adoption preference 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 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., supra, 77 Cal.App.4th at p. 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. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Here, the evidence showed Robin missed three visits in the first six months of reunification. He did not visit Jamie for a five-month period because he was incarcerated and then living in a drug treatment facility without visitation privileges. By the 18-month review hearing, Robin was having weekly supervised visits with Jamie, and those visits continued to the selection and implementation hearing.

Even were we to view Robin's visits as regular, Robin did not meet his burden of showing his relationship with Jamie was sufficiently beneficial to outweigh the benefits of adoption for her. Although Jamie professed her love for Robin, enjoyed supervised visits with him and said she would be sad if she no longer saw him, Robin did not have a parental role in Jamie's life. When Robin had the opportunity to provide dinner for Jamie, he fed her a candy bar and soft drink. When Robin had the opportunity to care for his sick daughter, he became angry and made Jamie clean up her vomit. He blamed Jamie for the juvenile court's intervention and accused her of being a liar. Robin instilled fear in Jamie, resulting in her request that visits be limited and supervised. Jamie viewed Rose, not Robin, as her parent.

Further, there was no evidence of a "significant, positive, emotional attachment" from Jamie to Robin such that terminating the parent-child relationship would result in great detriment to Jamie. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Jamie was parentified because she was sensitive to Robin's moods and adjusted her behavior to meet his needs. She remained afraid of Robin and did not want to live with him. The evidence showed Jamie's need to feel safe and secure in a permanent and stable adoptive home outweighed any interest in preserving parental ties. Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Robin's parental rights.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

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