In re Precious B

Filed 3/14/06 In re Precious B. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Amy C. (Mother) appeals the juvenile court orders denying her petition for modification (Welf. & Inst. Code, § 388),[1] terminating her parental rights to her daughter Precious C., and selecting adoption as her permanent plan. (§ 366.26.) Mother contends that the court abused its discretion in denying her modification petition, and that the beneficial relationship exception to adoption precluded termination of her parental rights. (§ 366.26, subd. (c)(1)(A).) We affirm.

FACTS AND PROCEDURAL HISTORY

Mother has five children who were born between March 1999 and April 2004, Miguel C., Destiny Z., Carlos B., Precious B., and Patrick B. This appeal concerns Precious B.

In July and August 2002, respondent Ventura County Human Services Agency (HSA) filed dependency petitions covering Carlos, Miguel, and Destiny alleging substantial risk to the children based on serious physical abuse of Carlos. The juvenile court declared the three children to be dependents of the court.

A few days after her birth in December 2002, HSA filed a dependency petition covering Precious alleging substantial risk to her based on the abuse of Carlos. In March 2003, the court declared Precious to be a dependent of the court, and ordered supervised visitation and reunification services. Precious was placed in foster care.[2]

In November 2003, the court ordered unsupervised visitation between Mother and Precious which later included weekend visits.

In March 2004, the court conducted a 12-month review hearing. The court ordered reunification services extended until the 18-month review hearing. An HSA report stated that the child's father had been incarcerated from December 2002 through June 2003, and was again incarcerated in October 2003.

In April 2004, Mother's fifth child, Patrick B., was born. He resides with a paternal grandmother outside Ventura County.

In September 2004, the court conducted an 18-month review hearing regarding Precious. The court terminated reunification services, approved a permanent plan of adoption, and set the case for a section 366.26 hearing.

An HSA report filed for the hearing stated that, despite receiving reunification services for Precious and three other children, Mother was unable to parent Precious adequately. Mother continued to be homeless and had not completed the individual counseling element of her case plan. The HSA report emphasized the detrimental effect of the resumption of her relationship with the child's father after his release from incarceration. The report stated that Mother failed to recognize the risk that the father's violent criminal behavior posed to herself and her children.

In December 2004 and January 2005, Mother filed section 388 petitions (collectively the "petition"). The petition alleged that she completed her parenting classes in early 2003, separated from the child's father in July 2004, moved into a "sober living home," obtained full-time employment in November 2004, and had developed a significant bond with Precious. The petition requested the court to set aside the September 2004 order terminating reunification services, and order additional reunification services and visitation so that Precious could be returned to Mother's custody.

On May 25, 2005, the court conducted a hearing on the permanent plan (§ 366.26) and Mother's section 388 petition. The HSA report recommended a permanent plan of adoption stating, among other things, that Precious had spent virtually her entire life with her foster, and prospective adoptive, parents. In addition, an addendum to the report showed that Mother remained in a relationship with the father contrary to representations made in her section 388 petition that they had separated. The addendum indicated that Mother had been physically abused by the father.

A February 2005 bonding report prepared by psychologist Clevert King was filed for the hearing, and was supplemented by Dr. King's oral testimony. In his written report, Dr. King stated that Mother and Precious "enjoy a substantial and secure attachment," but that the benefit of contact with Mother "would not outweigh the potential benefit of a permanent home with adoptive parents. There is no evidence that mother is prepared to resume full-time parenting of Precious in the foreseeable future." Dr. King concluded that Mother was not "the child's primary attachment figure" and that "Precious can overcome a disruption in the attachment to her biological mother with relatively mild effect on her self-image and future social development." Dr. King also stated that continued instability in Mother's life "pose[s] a potential risk to Precious of future abandonment, which could have a deleterious effect on the child."

At trial, Dr. King testified that Mother's continuation of her relationship with the child's father strengthened his conclusion that termination of parental rights would not be detrimental to Precious, and that the relationship created a risk for any child in Mother's care. Dr. King testified that other factors also indicated that Precious would be at risk if placed in Mother's custody.

Mother did not testify at the hearing and offered no other evidence.

On May 26, 2005, the juvenile court denied the section 388 petition, established adoption as the permanent plan, and terminated Mother's parental rights. The court found no substantial or significant change of circumstances, and that Mother did not have a parental relationship with Precious which justified continuation of parental rights or separation of Precious from her prospective adoptive parents.

Mother appeals the May 26, 2005, order.

DISCUSSION

No Abuse of Discretion in Denial of Section 388 Petition

Mother contends that the juvenile court abused its discretion in denying her section 388 petition. We disagree.

Section 388 authorizes a juvenile court to modify a prior order if a parent establishes by a preponderance of the evidence that there has been a change of circumstances, and that the requested modification is in the best interests of the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) We will not reverse the trial court's denial of the petition absent a clear showing of abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

Mother offered no evidence of a significant change in her circumstances. Her allegation that she had separated from the child's father was untrue, and there was no evidence that she still had the job she obtained in November 2004. Her residence in a sober living home was just one in a series of temporary residences during the pendency of the case and did not indicate that she was any closer to finding suitable housing for herself and Precious than she had found in the past. In addition, Mother's completion of some case plan requirements was before the court in earlier hearings and does not constitute a change in circumstances.

In deciding a section 388 petition, the court should consider the problems leading to the dependency proceeding and the degree to which the problems have been removed or ameliorated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532.) Mother continues to deny responsibility for injury to Carlos, continues to maintain a relationship with an abusive father, and has lived only in a structured and monitored environment or with relatives.

Moreover, the child's best interest must be considered in deciding a section 388 petition. Mother does not claim she can be reunified with Precious in the near future. After the completion of substantial reunification services, she only asks for more services and more time to resolve her parenting deficiencies. "When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role," and "often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child." (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) Mother may have established a bond with Precious, but she failed to show that the child's need for stability would be served by renewing an attempt to reunify at this late stage. (See In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)

Substantial Evidence Supports Termination of Parental Rights

At a section 366.26 hearing, the juvenile court is required to select a permanent plan of adoption, guardianship, or long-term foster care. When, as here, the parent has failed to reunify and it is likely the children will be adopted, the court must select adoption as the permanent plan unless it finds "a compelling reason for determining that termination [of parental rights] would be detrimental to the child" under one of five statutory exceptions. (§ 366. 26, subd. (c)(1).) One of the exceptions exists when the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Id., at subd. (c)(1)(A).)

Mother contends that this so-called "beneficial relationship" exception applies in this case, and that the trial court erred in terminating her parental rights. We disagree, and conclude that substantial evidence supports the trial court's finding that the exception does not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 425 [finding as to exception is reviewed under the substantial evidence test]; In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576 [same].)

Because interaction between a natural parent and child will always confer an incidental benefit to the child, the section 366.26, subdivision (c)(1)(A) exception places the burden on the parent to show that the parent-child relationship promotes the well-being of the child to a degree that outweighs the well-being the child would gain in a permanent home with adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at pp. 574-575.) The juvenile 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. 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." (Id., at p. 575.)

Here, the evidence supports the conclusion that Mother failed to meet her burden of proving that Precious would be significantly harmed by severance of the mother-child relationship or that the benefit of the relationship outweighed the well-being Precious would gain through adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The juvenile court reasonably concluded the benefits of stability in the child's adoptive relationship far outweighed her current attachments to Mother given the age of the child, the portion of the child's life spent in the parents' custody versus the adoptive parents' custody, and the deficiencies in Mother's ability to care for Precious. The court's findings were amply supported by HSA reports and Dr. King's bonding study.

The judgment (order of May 26, 2005) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Charles W. Campbell, Jr., Judge

Superior Court County of Ventura

______________________________

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Noel A. Klebaum, County Counsel, Joseph J. Randazzo, Assistant County Counsel, for Plaintiff and Respondent.

Publication courtesy of Santee minimum wages lawyer( http://www.mcmillanlaw.us/ )and Santee lawyers directory( http://www.fearnotlaw.com/)

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

[2] Mother appealed the March 2003 order contending that visitation was insufficient. In an unpublished opinion, we affirmed the order. (Ventura County Human Services Agency v. Amy C. (Apr. 20, 2004, B167021).)