In re T.F.
Filed 7/10/13
In re T.F. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 T.F. et al., Persons Coming
Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
MARSHA S.,
Defendant and Appellant.
D063197
(Super. Ct. No. J518173A-D)
APPEAL from
orders of the Superior Court of
County, Carol Isackson, Judge.
Affirmed.
Neale B.
Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and
Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Marsha S.,
mother of dependent children T.F., Corey F., Kelly F. and Z.F. (collectively,
the minors), appeals a juvenile court
order summarily denying her petition for modification under Welfare and
Institutions Code section 388,
name="_ftnref1" title="">[1] by
which she sought to have the minors returned to her custody, or alternatively,
to have further reunification services. Marsha also appeals orders terminating her
parental rights to the minors, contending no substantial evidence supports the
court's findings that the beneficial parent-child relationship exception to
adoption did not apply. We affirm the
orders.
FACTUAL AND
PROCEDURAL BACKGROUND
In July
2011, the San Diego County Health and
Human Services Agency (Agency) filed petitions in the juvenile court under
section 300, subdivision (b), alleging eight-year-old T.F., six-year-old Corey,
three-year-old Kelly and two-year-old Z.F. were at substantial risk of harm
because Marsha had a mental
illness that caused her to threaten suicide, and she was unable to provide
regular care for the minors. Marsha said
she had been coping with depression, was overwhelmed with life and caring for
her children and wanted to kill herself to end the pain. She had previously lived in a confidential
domestic violence shelter for more than a year after being in an abusive
relationship with the minors' father.
The court detained the minors in out-of-home care.
Marsha was
admitted to a mental health
treatment facility. She began taking
medication prescribed by her psychiatrist and was stable following her
release. A short time later, however,
Marsha tried to overdose on sleeping pills, and was readmitted to the mental
health treatment facility, where she remained for almost a week.
Marsha was
having unsupervised visits with the minors.
The social worker recommended Marsha's case plan include
classes and psychotropic medication evaluation and monitoring. At jurisdiction and disposition hearings, the
court sustained the allegations of the petitions, declared the minors
dependents, removed them from Marsha's custody and placed them in licensed
foster care. The court approved Marsha's
case plan and ordered her to comply with it.
During the
next six months, Marsha did not engage in services. She eventually began seeing a therapist, but
was inconsistent in attending sessions with him. She had not seen a psychiatrist for seven
months, but was still taking her medications.
Marsha did not complete a parenting class. She continued having unsupervised visits with
the minors for two hours a week, although she periodically canceled. The minors said they enjoyed visits, at which
they ate and played at a park.
Marsha
still struggled with her mental health, including having suicidal
thoughts. In the social worker's
opinion, Marsha had difficulty caring for herself and she was not emotionally
healthy enough to participate in services that would prepare her to raise four
young children. Consequently, the social
worker recommended the court terminate reunification services and set a hearing
under section 366.26 to select and implement permanent plans for the minors.
According
to addendum reports, Marsha continued to have suicidal thoughts. She tried to check herself into the hospital,
but there were no beds available. She
quit her job and became homeless. Marsha
missed three visits with the minors. She
asked the social worker for referrals to mental health services that offered
housing, stating she needed structure to address her problems.
In May
2012, Marsha informed the social worker that she missed the last court hearing
because she had been hospitalized. She
also disclosed she had a drug addiction.
Marsha failed to meet with a substance abuse specialist when requested
to do so by the social worker.
At the
six-month review hearing, the court found Agency had provided Marsha with
reasonable services, but Marsha had not made substantive progress with her case
plan. The court terminated reunification
services and set a section 366.26 selection and implementation hearing.
The social
worker assessed the minors as adoptable and recommended adoption as their
permanent plans. The minors were bonded
to their caregiver, who was committed to adopting all of them. T.F., Corey and Kelly said they wanted their
caregiver to adopt them. Three-year-old
Z.F. was too young to express an opinion about adoption.
The social
worker noted that during the early stages of the dependency proceedings, Marsha
consistently visited the minors, but by December 2011, visits became
sporadic. Marsha did not contact the
caregiver to arrange for visits. In the
social worker's opinion, there was no stable parent-child relationship. She believed the minors needed stability,
safety and permanency, which their caregiver wanted to provide.
In
September 2012, Marsha requested visits with the minors for the first time in
seven months. She had entered an
inpatient recovery program in July after testing positive for methamphetamine
and marijuana. Drug tests in August and
September were negative. Marsha resumed
visits with the minors on September 22.
The first visit occurred at Marsha's drug treatment facility, and Marsha
provided backpacks, snacks and drinks for the minors. Later visits took place at a park, and the
minors seemed to enjoy their time with Marsha, although they sometimes sought the
attention of their caregiver. The social
worker and the caregiver reported the minors had no negative reactions when
visits ended.
Once visits
with Marsha resumed, Corey began having behavior problems. He was angry when he saw Marsha smoking a
cigarette because there was a no smoking sign at her drug treatment
facility. Corey said Marsha told him and
his younger sisters to do bad things so that they could move to another
home. He told the caregiver he did not want
to return to Marsha's home because "she will hit me with a belt with studs." Z.F. also began to show anxiety about visits
with Marsha by wetting the bed.
Marsha
completed 12 parenting classes through her residential drug treatment
program. Once she completed the
rehabilitation phase of the program, she would transition to a six-month
aftercare program.
In November
2012, Marsha filed a section 388 petition for modification, seeking to have the
minors returned to her care with family maintenance services. Alternatively, Marsha sought further
reunification services to the 24-month date.
The petition alleged Marsha's circumstances had changed and the proposed
modification was in the minors' best interests.
The social
worker observed two visits between Marsha and the minors in November. Marsha cancelled a third visit because of
rainy weather and admitted she had not followed through on finding an
alternative visitation site. Visits
generally went well, although Marsha sometimes focused on the older children
while Z.F. wandered around confused and looking for her. Marsha brought snacks, engaged the minors in
play, took them to the restroom when necessary and walked them to the car when
visits ended. The minors experienced no
distress at the end of visits. The
social worker continued to recommend adoption as the minors' permanent plans.
The minors'
court-appointed special advocate (CASA) reported the minors were thriving in
the home of their caregiver. They called
the caregiver "mom," and felt safe and secure with her. T.F. and Corey wanted the caregiver to adopt
them. The CASA noted that during visits,
Marsha did not pay attention to Kelly and Z.F., and instead relied on T.F. and
Corey to ensure their safety. The CASA
recommended a permanent plan of adoption for all four minors.
The court
considered Marsha's section 388 petition, reviewed the information provided and
heard arguments of counsel. Finding
Marsha had not made a prima facie showing of changed circumstances or best
interests, the court denied the petition without an evidentiary hearing.
According
to a December 2012 addendum report, Marsha recently disclosed she had been
seeing a psychiatrist and was taking three psychotropic medications. She telephoned Agency to report the minors
were in the hospital, unconscious, following a car accident. When the social worker spoke to Marsha, she
said the caregiver told her about the accident and said only T.F. and Z.F., not
Corey or Kelly, were unconscious. Marsha
said the caregiver would not tell her which hospital the minors were in.
The CASA
went to the caregiver's home and learned there had been no car accident, the
minors were fine and the caregiver had not spoken to Marsha. When the social worker followed up with
Marsha, she insisted she had spoken to the caregiver on a pay telephone in the
rehabilitation facility, but there were no witnesses. The next visit was cancelled because the
social worker was concerned about Marsha's mental health.
At the
contested selection and implementation
hearing in December 2012, the court received in evidence Agency's reports
and the stipulated testimony of Corey and T.F.
If called to testify, Corey would say he enjoyed weekly visits with
Marsha and they had fun. He missed her
between visits. Corey felt sad when
Marsha told him to misbehave so the minors could move to another home. Corey liked living with the caregiver and
would be sad if he had to leave.
Although Corey was not afraid to live with Marsha, he preferred to be
adopted by the caregiver. He was
"really, really sure" that he wanted the caregiver to adopt him.
According
to T.F.'s stipulated testimony, visits with Marsha were good because she played
with the minors, was nice to them, brought them snacks and they had fun. If given a choice, she would stay with the caregiver,
who fed her and made her feel safe. T.F.
would choose to live in a big house with her siblings and the caregiver. She wanted to be adopted by the caregiver.
Marsha
testified she had been visiting the minors every Saturday for two hours, usually
in Balboa Park, for the past three months.
She brought snacks and water to visits, and once brought the minors
backpacks with school supplies. Marsha
played with the minors and generally interacted with them. The minors referred to her as "mom"
or "mommy Marsha." They ran to
her at the beginning of visits, and occasionally had difficulty separating from
her when visits ended.
After
considering the evidence and arguments of counsel, the court found the minors
were likely to be adopted and none of the exceptions to adoption applied. The court terminated parental rights and
referred the minors for adoptive placement.
DISCUSSION
I
Marsha
contends the court erred by summarily denying her section 388 modification
petition. She asserts she made a prima
facie showing her circumstances had changed and providing her with further
reunification services was in the minors' best interests.
A
A party may
petition the court under section 388
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." (In re Marilyn H., at p. 310.) " '[I]f the petition presents any
evidence that a hearing would promote the best interests of the child, the
court will order the hearing.'
[Citation.]" (In re
Jasmon O., at p. 415.) If, however,
"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." (In re Zachary G. (1999) 77
Cal.App.4th 799, 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. (2004) 123
Cal.App.4th 181, 188-189.)
B
Here,
Marsha's modification petition alleged her circumstances had changed because
she enrolled in residential drug treatment; she had been clean and sober for
115 days and progressed to phase II of the program; she participated in various
treatment groups; she completed a parenting program; and she consistently visited
the minors. The petition further alleged
that providing Marsha with additional reunification services was in the minors'
best interests because the minors were bonded to her and recognized her as
their mother; visits were positive; Marsha was able to practice the skills she
learned from parenting classes; the minors would benefit from more time with a
mother who was sober and able to provide them with a safe and loving home; and
the goal of family preservation would ultimately be achieved.
Although
Marsha was in the process of addressing her substance abuse and had
reestablished contact with the minors, "[n]ot every change in circumstance
can justify modification of a prior order." (In re A.A. (2012) 203 Cal.App.4th
597, 612.) Instead, "the problem
that initially brought the child within the dependency system must be removed
or ameliorated." (Ibid.; see
also In re B.D. (2008) 159 Cal.App.4th 1218, 1230.) Here, the basis for the juvenile court's
intervention and the primary reason for the minors' removal was Marsha's mental
illness, which resulted in her inability to provide proper care for the
minors. Marsha had been depressed and
overwhelmed, causing her to threaten suicide.
While under psychiatric care, Marsha again tried to commit suicide. Throughout the reunification period, she
continued to struggle with mental health issues, including having suicidal
thoughts, which prevented her from effectively participating in services that
would allow her to reunify with the minors.
Contrary to Marsha's assertion, she was not yet "mentally
sound" at the time she filed her section 388 petition. In December 2012, Marsha's mental stability
was again called into question when she falsely claimed the caregiver told her
the minors had been seriously injured in a car accident.
showing she had changed the circumstance—her serious mental illness—that
prevented her from reunifying with the minors and resulted in the termination
of her reunification services. (See In
re A.A., at p. 612 [incarcerated mother did not show changed
circumstances where, despite completing various services and programs, she was
still serving a prison sentence]; In re Kimberly F. (1997) 56
Cal.App.4th 519, 532 [in evaluating changed circumstances, one criterion court
should consider is seriousness of problem that led to dependency and reason for
continuation of that problem].)
With
respect to allegations concerning Marsha's sobriety, parenting and visitation,
the petition and supporting documentation show, at most, her circumstances were
"changing," but had not changed.
(In re Casey D., supra, 70 Cal.App.4th at p. 47.) Marsha was three months into a six- to
nine-month substance abuse program, which then required three months of
aftercare. Although Marsha had been drug
free for 115 days, the petition did not allege, and the record did not show,
she had taken steps to sustain her treatment gains such as having a sufficient
support system or obtaining a sponsor. Viewed
in context, Marsha had just begun the difficult task of maintaining her
sobriety. (See In re Kimberly F., supra,
56 Cal.App.4th at p. 531, fn. 9 ["It is the nature of addiction that one
must be 'clean' for a much longer period than 120 days to show real
reform."].) A petition like Marsha's
that alleges changing circumstances does not promote stability for a 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.
"Childhood does not wait for the parent to become
adequate." (In re Marilyn H.,
supra, 5 Cal.4th at p. 310.)
Thus, the changes alleged in Marsha's petition were "not legally
sufficient to require a hearing on her section 388 petition." (In re Angel B. (2002) 97 Cal.App.4th
454, 465.)
In any
event, Marsha's petition did not make a prima facie showing that offering her
additional services, and thereby delaying permanency for the minors, would
serve the minors' best interests. Although the minors love Marsha, know she is
their mother and enjoy visits with her, "[t]he presumption favoring
natural parents by itself does not satisfy the best interests prong of section 388." (In re Justice P., supra, 123
Cal.App.4th at p. 192.) Marsha's absence
from the minors' lives for seven months caused their relationship with her to
deteriorate. The minors are thriving in
the home of a caregiver who is committed to adopting them.
Where, as
here, reunification services have been terminated, a parent's "interest in
the care, custody and companionship of the child [is] no longer paramount. Rather, at this point, 'the focus shifts to
the needs of the child for permanency and stability' [citation], and in fact,
there is a rebuttable presumption that continued foster care is in the best
interest of the child." (In re
Stephanie M. (1994) 7 Cal.4th 295, 317; see also In re C.J.W. (2007)
157 Cal.App.4th 1075, 1081 [summary
denial of section 388
petition was proper where there was no showing of how the children's best
interests would be served by depriving them of a permanent stable home in
exchange for an uncertain future].) The
proper focus of this case was the minors' need for stability, continuity and
permanency, regardless of Marsha's interest in reunification. (In re Stephanie M., at pp. 317-318; In
re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) Because the liberally construed allegations
of the petition would not have sustained a favorable decision on the section 388 petition, Marsha was not entitled
to an evidentiary hearing. (In re
Zachary G., supra, 77 Cal.App.4th at p. 808; In re Mary G.
(2007) 151 Cal.App.4th 184, 205-206.)
II
Marsha
challenges the sufficiency of the evidence to support the court's finding the
beneficial parent-child relationship exception to adoption did not apply to
preclude terminating her parental rights.
She asserts she shared a bond with Kelly and Z.F., who considered her to
be their mother, enjoyed spending time with her and would be harmed by the
severance of their relationship with her.
Marsha further asserts because Kelly and Z.F. were part of a bonded
sibling group that needed to remain together under the same permanent plan, her
parental rights should have been preserved as to all four minors.
A
After reunification
services are terminated, the focus of a dependency proceeding shifts from
preserving the family to promoting the best interests of the child, including
the child's interest in a stable, permanent placement that allows the caregiver
to make a full emotional commitment to the child. (In re Fernando M. (2006) 138
Cal.App.4th 529, 534.) At the selection
and implementation hearing, the court has three options: (1) terminate parental rights and order
adoption as the permanent plan; (2) appoint a legal guardian for the child; or
(3) order the child placed in long-term foster care. (Ibid.)
"Adoption,
where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th
567, 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
the specified statutory exceptions.
(§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Erik P.
(2002) 104 Cal.App.4th 395, 401.)
Section
366.26, subdivision (c)(1)(B)(i) 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 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." (In re Autumn H., supra, 27
Cal.App.4th at p. 575; accord, In re Jason J. (2009) 175 Cal.App.4th
922, 936.)
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.)
We review
an order terminating parental rights for substantial evidence. (In re Autumn H., supra, 27
Cal.App.4th at p. 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 weigh 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 Casey D., supra, 70
Cal.App.4th at p. 53; 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.)
B
During the
first few months of the dependency
proceedings, Marsha had regular unsupervised visits with the minors. However, by December 2011, visits became
sporadic and, by February 2012, Marsha stopped visiting altogether. She had no further contact with the minors
for seven months and resumed visits a little more than two months before the
selection and implementation hearing.
This was not the type of regular visitation and contact contemplated by
the Legislature when it provided for an exception to the adoption
preference. (§ 366.26, subd.
(c)(1)(B)(i).)
Even if the
visitation and contact Marsha had with the minors can be characterized as
"regular," she did not meet her burden of showing there was a
beneficial parent-child relationship sufficient to apply the exception of
section 366.26, subdivision (c)(1)(B)(i).
During
Marsha's absence from the minors' lives, caused in part by her substance abuse,
the minors had to rely on others to meet their daily needs. Consequently, their relationship with Marsha
deteriorated and was no longer parental.
T.F. and Corey were confused about their permanent plans because Marsha
told them they would be returning home to her.
Nevertheless, T.F. and Corey were clear about wanting the caregiver to
adopt them. Marsha showed love and
concern for the minors, but sometimes had difficulty supervising Kelly and Z.F.
during visits, relying instead on T.F. and Corey to ensure their safety. Although Kelly and Z.F. were affectionate
toward Marsha and enjoyed weekly visits with her, they were not adversely
affected when visits ended. "A
biological parent who has failed to reunify with an adoptable child may not
derail an adoption merely by showing the child would derive some benefit
from continuing a relationship maintained during periods of visitation with the
parent." (In re Angel B., supra,
97 Cal.App.4th at p. 466.) The love and
affection Marsha shared with the minors during visits was not enough to show
the minors had a " 'significant, positive, emotional
attachment' " to her such that terminating the parent-child relationship would result
in great harm to these children. (In
re Jason J., supra, 175 Cal.App.4th at pp. 936-938; In re Autumn
H., supra, 27 Cal.App.4th at p. 575.)
Further,
Marsha did not show that maintaining the parent-child relationship outweighed
the benefits of adoption for the minors.
In the social worker's opinion, the minors' need for stability, safety
and permanency outweighed any possible detriment that would be caused by
severing the parental relationship. The
court was required to, and did, weigh the strength and quality of the
parent-child relationship, and the detriment involved in terminating it,
against the potential benefit of an adoptive home for the minors. We do not reweigh the evidence or substitute
our judgment for that of the juvenile court.
(In re Casey D., supra, 70 Cal.App.4th at p. 53.)
Although
Marsha believes that a permanent plan other than adoption would serve the
minors' best interests, adoption is the only option that would provide this
bonded sibling set with the stability and permanence that they so desperately
need. (In re Beatrice M. (1994)
29 Cal.App.4th 1411, 1419 [Legislature has decreed guardianship is not in best
interests of children who cannot be returned to their parents; only adoption
affords the most permanent and secure alternative]; In re Ronell A.
(1996) 44 Cal.App.4th 1352, 1368-1369 [parents' preference to preserve family
unit does not override best interests of minors in stability and security of
adoptive home].) Substantial evidence
supports the court's finding the beneficial
parent-child relationship exception did not apply to preclude
terminating parental rights.
DISPOSITION
The orders
are affirmed.
IRION, J.
WE CONCUR:
McINTYRE, Acting P.
J.
AARON, J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] Marsha's section 388 petition sought return of the minors to
her custody, or alternatively, further reunification services. On appeal, Marsha has abandoned her request
for an order returning the minors to her custody.
