In re Richard B.

Filed 4/17/07 In re Richard B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from a judgment and orders of the Superior Court of San Diego County, Gary M. Bubis, Juvenile Court Referee. Affirmed.

Frederick B. and Antoinette B. appeal a judgment terminating parental rights to their son, Richard B. Frederick also appeals an order denying his request for an evidentiary hearing on a Welfare and Institutions Code^[1]section 388 modification petition, and an order denying a second section 388 modification petition on its merits. We affirm the judgment and orders.

FACTUAL AND PROCEDURAL BACKGROUND

Frederick B. and Antoinette B. are the parents of N.B., born in June 1990, and Richard, born in November 2002. Richard is the subject of this appeal. Frederick and Antoinette married in 1990 and separated in 2002. Antoinette has a history of chronic homelessness and drug abuse. Frederick was more stable than Antoinette but he, too, has a lengthy history of substance abuse.

In 2003, N.B. became a dependent of the juvenile court after he was physically injured during an altercation with Antoinette. The court placed N.B. with Frederick under a family maintenance plan and ordered Antoinette to enroll in Substance Abuse Recovery Management System (SARMS). Antoinette refused to comply. In December 2004, she was arrested and jailed for SARMS violations. Frederick cared for Richard and N.B. during Antoinette's incarceration.

On August 31, 2005, N.B.'s social worker went to Frederick's home around 7:00 p.m. to look for N.B., who had not kept an appointment with her. Two-year-old Richard answered the door. Antoinette was sleeping on the living room floor and did not respond to the social worker's calls. Richard told the social worker "daddy won't wake up," and went outside to play. After a few minutes, Frederick came outside to speak with the social worker. He told her he could not "handle" taking care of N.B.

The social worker found N.B. at the home of his older half-sister. N.B. said Frederick relapsed and disappeared "for like a week." On September 13, Frederick told the social worker he relapsed on methamphetamine, which Antoinette provided.

On September 14, 2005, Antoinette was arrested and charged with child endangerment and possession of marijuana, which had been left within Richard's reach. Police officers detained Richard. On September 16, the San Diego County Health and Human Services Agency (the Agency) filed a petition alleging Richard was at substantial risk of serious harm or illness due to his parents' use of methamphetamine and marijuana. ( 300, subd. (b).) The Agency recommended the court deny Antoinette reunification services but was not opposed to offering services to Frederick provided he appear in court and request them.

Frederick did not appear at the detention hearing, settlement conference, or jurisdiction and disposition hearings. (See In re Richard B. (Nov. 20, 2006, D048305) [nonpub. opn.] (Richard B.).) On November 21, 2005, the court sustained the allegations of the petition, removed Richard from Antoinette's custody, and denied her reunification services under section 361.5, subdivision (b)(10) and (13). The court set a permanency plan hearing under section 366.26.

At a December 15, 2005 special hearing, which Frederick attended, the court determined Frederick was Richard's presumed father. Five days later, Frederick telephoned the social worker and asked to visit Richard.^[2] Frederick told the social worker he "went off the deep end" on methamphetamine. Visitation was delayed by Frederick's move to a sober living environment. In January 2006, he began visiting Richard each week.

On February 24, 2006, Frederick filed a section 388 modification petition (first modification petition). He asked the court to vacate the permanency plan hearing and place Richard in his care with family maintenance services or provide him reunification services and unsupervised visitation. The court scheduled an evidentiary hearing on the modification petition. On March 15, the date set for hearing, the court summarily denied the petition based on its review of the court file. Frederick appealed that order. (See Richard B., supra, D048305.)

On May 17, 2006, Frederick filed a second section 388 modification petition. He requested the court modify its disposition order to provide him reunification services. Antoinette also filed a modification petition. She asked the court to allow Richard to live with her in a residential drug treatment program.

The second section 388 hearing was heard over several days in July and August 2006. The court informed counsel he received an ex parte communication from Theodore Weathers, the judge overseeing the drug court program. Judge Weathers described Frederick as a leader in drug court and stated he was "very, very proud" of Frederick's progress. Frederick testified he was living in a sober living complex with his son, N.B., who was also participating in a substance abuse treatment program. All of Frederick's drug tests were negative. Frederick had a 30-year "off and on" history of substance abuse. His longest period of sobriety was the 11 months immediately preceding his August 2005 relapse. As of July 21, 2006, Frederick had 229 days sobriety.

Antoinette had been sober since November 2005, when she was arrested for violating the terms and conditions of probation. She entered a residential drug treatment program on March 17, 2006, after her release from custody. Antoinette had a 16-year history of drug use. Her longest period of sobriety occurred during the four and one-half years preceding Richard's birth.

The court found Antoinette had a long history of substance abuse. Because her current sobriety was dependent on her controlled environment, Antoinette was not sufficiently stabilized to show changed circumstances. Although Frederick's recent progress was excellent, he had a decades-long history of substance abuse. Because Frederick had a serious substance abuse problem and had been sober for less than one year, the court was unwilling to find Frederick's circumstances had changed. The court denied the parents' petitions for modification.

At the permanency plan hearing, the social worker testified Richard's condition was diagnosed as posttraumatic stress disorder. He had nightmares, was aggressive with peers and, at times, would disassociate. Richard needed a stable, secure environment. He liked structured activities and a predictable environment. Despite his therapeutic issues, Richard was generally adoptable. His foster parents were interested in adopting him.

After February 2006, Antoinette visited Richard every other week. Richard had difficulty separating from his foster parents. He would cling to them and wrap his arms around their necks. More recently, Richard ran to greet Antoinette when he arrived and appeared to enjoy her visits. In some ways, Antoinette's relationship to Richard was parental in nature. However, she pressured Richard about living with her at her drug treatment program, and that confused him.

The social worker observed more than 20 visits between Frederick and Richard. He believed Richard had a stronger relationship with Frederick than with Antoinette. Richard enjoyed Frederick's visits. Frederick went "with the flow" and looked out for Richard's needs during the short time they were together each week. However, his attention to Richard was incidental compared to the care and nurturing Richard received in the foster home.

Typically, at the start of the visits, Richard would run into Frederick's arms and kiss him and say hello. During the visits, the social worker observed spontaneous displays of affection between father and son. When it was time to go, Richard would return to kiss Frederick again after he said good-bye. On several occasions after the visits ended, Richard said he was "sad." The social worker testified their relationship was "almost to the point where it is a loving relationship" but more consistent contact was required before the relationship was truly parental in nature. Richard had started to build a relationship with his father and would have some difficulties were contact with Frederick terminated. The social worker believed any lack of contact with Frederick would not be seriously detrimental to Richard because his caregivers attended attachment parenting classes and were willing to work though issues with Richard and his therapist.

The court found Richard had frequent and loving contact with his father and a warm relationship with his mother. However, in balancing three-year old Richard's interests in a safe, secure, permanent parental relationship with committed, responsible adults against his interests in maintaining the existing parent-child relationships, the court found adoption was in Richard's best interests. The court terminated Frederick's and Antoinette's parental rights, granted the foster parents' application for de facto parent status, and recognized the foster parents as Richard's prospective adoptive parents.

APPELLATE PROCEEDINGS

After the opening briefs were filed in this appeal, we affirmed the trial court's order summarily denying Frederick a hearing on his first section 388 modification petition. (Richard B., supra, D048305.) We held the court did not have a sua sponte duty to make new findings and orders concerning dispositional issues and reunification services after Frederick's late appearance in the case. (Id. at pp. 5, 9.) In his reply brief, Frederick concedes Richard B. is dispositive of the issues raised in this appeal concerning the trial court's summary denial of his first section 388 modification petition, and we do not reconsider those issues here.

DISCUSSION

A

The Court Did Not Abuse Its Discretion When It Denied

Frederick's Modification Petition

Frederick contends the juvenile court erred when it denied his second section 388 modification petition on its merits. He argues he established a sufficient change in circumstances to merit a grant of reunification services, and the proposed modification of the disposition order was in Richard's best interests. The Agency asserts the court did not abuse its discretion by denying Frederick's second section 388 modification petition.

Under section 388, a parent, interested person, or the dependent child (generically petitioner) may petition the court to change, modify, or set aside a previous order on the grounds of changed circumstances or new evidence. ( 388, subd. (a).) The petitioner requesting the modification has the burden to show a change of circumstances or new evidence, and that the proposed modification is in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) Generally, the petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. (Cal. Rules of Court, rule 5.570(h).)^[3]

In evaluating whether the petitioner has met his or her burden to show changed circumstances, the juvenile court should consider "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In reKimberly F. (1997) 56 Cal.App.4th 519, 531-532.) "While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion." (Id. at p. 532.)

We review the grant or denial of a section 388 modification petition for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Although the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)

The first consideration of a section 388 modification petition is whether the petitioner has shown a legitimate change of circumstances. Here, the court considered Frederick's recent progress with the seriousness of the problem that led to the dependency. Frederick was addicted to methamphetamine. During his 30-year history of substance abuse, the longest period Frederick remained sober was 11 months. This period of sobriety ended when Frederick relapsed, less than two months after he successfully completed a SARMS program. During his relapse, Frederick abandoned 15-year-old N.B. to the streets and did not attempt to contact three-year-old Richard for more than three months.

Although Frederick was making an excellent effort to resolve his substance abuse problems, the court could reasonably conclude the nature and extent of his drug use was not easily ameliorated. (In reKimberly F.,supra, 56 Cal.App.4th at p. 532.) The court found Frederick did not show he had effected a legitimate change in circumstances, only that his circumstances were changing. ( 300, subd. (a).) The court acted within its discretion when it did not delay the permanency plan hearing to offer Frederick a further opportunity to reunify with Richard.

Frederick argues he is not required to show his current circumstances allow him to assume immediate custody of Richard but, rather, his circumstances were sufficiently changed to merit providing reunification services. Frederick asserts the record shows he consistently and regularly visited Richard, who enjoyed the time they spent together, and they were developing a loving relationship. Frederick contends the evidence clearly showed it was in Richard's best interests to allow the opportunity for family reunification.

In determining whether to grant a modification petition, the court may consider the relative strength of bonds between the dependent child to both parent and caregivers. (In reKimberly F., supra, 56 Cal.App.4th at pp. 531-532.) Although a bond to a caregiver is not dispositive, any disruption of an existing psychological bond between a dependent child and the caregivers is an important factor bearing on a section 388 petition. (In re Jasmon O., supra, 8 Cal.4th at pp. 408-409.)

Frederick acknowledges the strength of Richard's bonds with his foster parents, who provided Richard consistent, loving and nurturing care on a daily basis for over 17 months. The foster parents were willing to work closely with Richard's therapist to ameliorate the effects of posttraumatic stress syndrome and to help Richard develop a secure and healthy attachment to them. Richard sought out his foster parents for comfort and security. They were "highly attuned and responsive" to his physical, medical and emotional needs.

The court could reasonably conclude disruption of the existing psychological bond between Richard and his foster parents presented an unacceptable risk to his emotional security and well-being. In considering Richard's needs, the strength of his bonds with the foster parents and his father, and Frederick's current and past circumstances, the court did not abuse its discretion when it determined it was not in Richard's best interests to modify the order setting a permanency plan hearing. (In re Jasmon O., supra, 8 Cal.4th at pp. 408-409, 415-416; Kimberly F.,supra, 56 Cal.App.4th at p. 532.)

B

Substantial Evidence Supports the Court's Finding the Beneficial Parent-Child

Exception Under Section 366.26, Subdivision (c)(1)(A) Did Not Apply

Frederick and Antoinette assert the court erred by concluding the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of parental rights to Richard. They contend the court's finding is not supported by substantial evidence.

At a permanency plan hearing, the court may order one of three alternatives--adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)

After the court determines a child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We recognize that interaction between parent and child will usually confers some incidental benefit to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

When applying the beneficial parent-child relationship exception, "the court balances the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging" that a stable family would confer on the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "If severing the [existing parental] 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." (Ibid.)

We determine whether there is substantial evidence to support the court's ruling by viewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The party challenging the ruling bears the burden of showing there is insufficient evidence to support it. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Here, the court found the security of a stable, permanent home with committed, capable adoptive parents outweighed the relationships Richard had with Frederick and Antoinette. This finding is supported by substantial evidence. When Richard was in the care of his parents, neither Antoinette nor Frederick provided him a safe, stable place to live or adequate care. Richard's exposure to his parents' habitual drug use and Antoinette's vagrant lifestyle traumatized him. His parents neglected his medical needs, necessitating major dental surgery. An eyewitness reported seeing Antoinette shake two-year old Richard and throw him into his car seat. The record shows Richard did not have a beneficial parent-child relationship with either Antoinette or Frederick at the time dependency proceedings were initiated.

As a result of his relapse, Frederick did not see Richard from early September 2005 to January 11, 2006. He did not appear in Richard's dependency proceedings until after the disposition hearing. After Frederick was more stable, he visited Richard regularly and consistently. Frederick was sensitive to Richard's needs and Richard enjoyed his visits.

The court found Richard had frequent and loving contact with Frederick but it would not be seriously detrimental to Richard to terminate parental rights. The social worker testified any benefit Richard derived from his relationship with Frederick was incidental to the benefit he received from his relationship with his foster parents. Richard sought out his foster parents for comfort and security, and they met his needs for consistent and responsive care. "A judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believe other evidence. (Citation.)" (In re Dakota H. (2005) 132 Cal.App.4th 212, 230.) The court did not err when it determined that the security conferred by a permanent relationship with the foster parents was more important to Richard's physical and emotional well-being than was preserving his relationship with Frederick. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The court found Richard had a warm relationship and loving contact with Antoinette but their relationship was not parental in nature. The social worker believed the impact of Antoinette's criminal and drug history had jeopardized the parent-child attachment and bond, and Richard did not have a beneficial relationship with her that would outweigh the benefit of adoption. When asked to characterize her relationship with Richard, Antoinette replied, "I'm losing him. I don't get to take care of him. I don't get to read to him his stories anymore. I don't get to do the things that I used to do with him . . . ." Antoinette's own testimony acknowledges the limitations of her relationship with Richard.

The court correctly identified four-year old Richard's needs for stability, security, and committed and responsible parents. Because of the consequences of Antoinette's past decisions and actions, Richard's primary needs were met by his foster parents for a significant period of his life. Substantial evidence supports the finding Richard did not have a significant, positive emotional attachment to Antoinette that would outweigh the benefits of adoption, and termination of parental rights would not be seriously detrimental to him. ( 366.26, subd. (c)(1)(A); In re Derek W., supra, 73 Cal.App.4th at p. 827; In re Elizabeth M., supra, 52 Cal.App.4th at p. 324.)

DISPOSITION

The judgment and orders are affirmed.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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

^[2] The court authorized supervised visitation at the detention hearing.

^[3] When the petitioner seeks a removal order from a parent or guardian or a more restrictive placement for a dependent child under section 388, the standard of proof is by clear and convincing evidence. (Cal. Rules of Court, rule 5.570(h).)