In re Princess E.

Filed 6/25/07 In re Princess E. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant, the mother of a minor child, appeals from an order terminating her parental rights in the child and ordering a permanent plan of adoption. We affirm.

Background

On March 15, 2005, the child, then five years old, was removed from her parents home after her father struck her with a leather strap with sufficient force to leave linear red marks on her right arm and hip area. On April 6, 2005, after an uncontested jurisdictional hearing, the juvenile court sustained an amended Welfare and Institutions Code section 300[1] petition alleging (1) serious physical harm in that the childs father had struck the child, her mother had struck her in the past and the child was afraid to go home ( 300, subd. (a)); (2) failure to protect in that the parents in the past had left the child with a physically abusive cousin, the parents had a history of domestic violence, the father had a history of substance abuse and related arrests and the mother had exhibited depressed symptoms in the past, all of which interfered with the parents ability to care for the child ( 300, subd. (b)); and (3) abuse of sibling, the minors half-brother, in that the sibling had been removed from the mothers custody as a result of her unwillingness to provide care for him, and the mother had not participated in case plan services that included a domestic violence program, general counseling, a parent education program and family therapy ( 300, subd. (j)). The petition also alleged that another sibling, a younger sister, was at risk. A case plan was developed with a goal of reunification. The plan required the parents to take steps designed to increase their ability to care for the child and to provide her with a safe environment.

The child was placed in a licensed foster home after her removal from her parents home. The mother called regularly. She showed up for a scheduled visit on March 18, 2005, but cancelled a second visit, scheduled for March 25, 2005, claiming there had been a family emergency. The mother also reported she intended to divorce the father. The social worker reported the child was adjusting to her placement in the foster home.

On August 19, 2005, the Alameda County Social Services Agency (Agency) requested and obtained court approval to place the child at the Seneca Center for a 90-day assessment because she had been exhibiting sexual acting out at the foster home and because the Agency believed she needed intensive therapeutic services. In the meantime, the father had moved out of the family home. As of September 2005, the mother had been evicted from her apartment for nonpayment of rent and was living, together with the childs sibling and half-sibling, with a sister-in-law. The mother had partially complied with her case plan. Her personal therapist made home visits, and she had been meeting with the therapist regularly. She had gone to some family therapy sessions. She had not enrolled in programs for domestic violence or parenting. The mother had visited the child, but only sporadically. The social worker reported the child was adoptable but adoption was not the proper plan at that time as the parents were working on reunification.

As of March 2, 2006, the mother had been forced to change addresses, reporting her landlord had changed the locks on her apartment and had moved someone else in. She was considering reconciliation with the father. The mother continued to meet with her personal therapist at home, but had not enrolled in a domestic violence program and had not followed through on parenting classes, although she reported she had attended two parenting sessions the previous October. The mother had cancelled a number of scheduled visits with the child or had simply failed to show, visiting the child only twice at the Seneca Center, both times in September. She had gone to two sessions with the family therapistonce in November 2005 and once in February 2006. The child had been returned to the foster home in November, continued to live there and had adjusted well to that placement. The mother had requested that the child be placed with relatives, but the persons she had named were denied placement because of a criminal history. The mother had provided no names of other relatives who might be considered.

By March 28, 2006, the foster parents, who at first had been interested in legal guardianship, were expressing the desire to adopt the minor, after the child asked if she could use the foster parents last name and told the foster mother, I want you to be my mom. The foster parents believed adoption would provide more stability and permanency for the child. The childs great-grandmother also had expressed an interest in taking her and had been approved for relative placement, but the child continued to reside with the foster parents. The mother had not visited with the minor for at least five weeks, making various excuses. The mother had not gone to any further meetings with the family therapist despite the therapists efforts to schedule appointments with her. The mother had stopped seeing her individual therapist. Her whereabouts were unknown and she had not returned the social workers calls. The social worker managed to find the mother and schedule a home visit, but no one was there when the visit was to take place. The social worker had received anonymous calls telling her the mother was abusing cocaine, stealing money for cocaine and had been leaving the minors younger sibling with other adults. The social worker was seeking a protective custody warrant for the younger sibling.

At the 12-month hearing, held March 28, 2006, the mother informed the court she had been in a rehabilitation center for eight days. She had gone to the center because she had recognized her life was going in the wrong direction and she knew she had a substance abuse issue. She admitted she had not been visiting with the child, stating she did not want the child to see her in the condition she was in. She admitted she had not kept the Agency informed of her whereabouts. The court found there was no substantial possibility the child could be returned to the mother within the next six months. It therefore continued the minor as a dependent of the court, terminated further reunification services and set the matter over to June 29, 2006, for a section 366.26 selection and implementation hearing.

The Agencys report was filed on June 15, 2006. The social worker reported the foster parents appeared to be appropriate adoptive parents, and a home study had been initiated. The child had formed a positive bond with the foster parents and had stated she wished to remain in their home.

In the meantime, also on June 15, 2006, the mother filed a section 388 petition requesting that the section 366.26 selection and implementation hearing be set aside and the minor be returned to her or that she be given six months additional reunification services. The court denied the petition on June 19, 2006. On July 24, 2006, after a contested hearing, the court found the childs placement to be necessary and appropriate, and found by clear and convincing evidence that the child is adoptable. The court therefore terminated the parents parental rights.

This appeal followed.

Discussion

I.

Section 388 Petition

The mother contends the juvenile court erred by summarily denying her section 388 petition without first providing her with a hearing.

As an initial matter, the Agency points out the mothers petition in effect sought to overturn the referral order, so that section 366.26, subdivisions (l)(1) and (2) apply, making the denial of the petition cognizable on appeal only if the mother first sought review of the order by extraordinary writ.[2] (In re Rashad B. (1999) 76 Cal.App.4th 442, 448.) This rule applies only if the court advises the parent of the writ petition requirement. (In re Athena P. (2002) 103 Cal.App.4th 617, 625.) Here, the only advisement reflected in the record is the courts statement, after denying the mothers petition, There are writ forms available for the parents if they wish to appeal the findings and orders here today. And I think the Clerk makes those available. This statement did not provide adequate notice to the mother that she would be barred from seeking appellate review of the courts order unless she first sought review by petition for extraordinary writ. We therefore address the merits of the mothers contention.

Section 388 authorizes a parent to petition the court for a hearing to change, modify or set aside an order previously made, upon grounds of change of circumstance or new evidence. ( 388, subd. (a).)[3] The parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the [child]. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) The parent need not establish a probability of prevailing; she need only show probable cause. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) We review the juvenile courts summary denial of a section 388 petition for abuse of discretion. (In re Anthony W., supra, at p. 250.)

The mother filed her petition on June 19, 2006, just 10 days before the selection and implementation hearing. In support of her claim of change of circumstances, the mother alleged: The mother entered an outpatient drug recovery program, East Oakland Recovery Center, and has been consistently visiting with her daughter every other week at the home of [the maternal great-grandmother]. In support of her claim that the change would be in the childs best interests, the mother alleged, The mother is making significant progress that is of benefit to her children, including [the child] and [the childs younger sibling]. The mother is currently in the process of reunifying with [the younger sibling]. [The child] should be reunited with her biological family to mitigate any life-long feelings of abandonment. The mother attached her own declaration that she had been visiting the child as often as possible, but had been limited by the Agency to visits every other week. She also asserted she was then enrolled in the East Oakland Recovery Outpatient Program where she had been active since April 4, 2006, and had been attending parenting classes, anger management classes and therapy. She asserted she was attending twice-weekly Narcotics Anonymous meetings and had submitted to twice-weekly urine tests. She stated she was living with her grandmother in a house that had room for the child and she had a stable source of income though Social Security. With one exception, the mother did not support her declaration with any evidence such as certificates of completion, letters from her therapist or counselors, or test results. She did include a letter from the East Oakland Recovery Center, verifying she had entered its outpatient program. The letter stated the mother had begun attending on April 17. She had attended all required meetings in April, but had missed five out of fourteen meetings in May, and as of June 14, had missed two out of six meetings in June.

On this evidence, the juvenile court was not required to conduct a hearing. Bare allegations do not make a prima facie showing of changed circumstances. Successful petitions have included declarations or other attachments which demonstrate the showing the petitioner will make at a hearing of the change in circumstances or new evidence. (See In re Anthony W., supra, 87 Cal.App.4th at p. 250.) The mothers declaration might be enough for a prima facie showing, but even taking all the matters in her declaration as true, she showed only that she was taking steps that, if successfully completed, would resolve the problems that led to the childs removal. It has been suggested that a prima facie showing of changing circumstances is insufficient. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) In re Hashem H. (1996) 45 Cal.App.4th 1791, cited by the mother, is distinguishable because the mother in that case made a prima facie showing the problems which led to the removal of the child from her home had been resolved successfully. In In re Aljamie D., supra, 84 Cal.App.4th 424, the mother provided evidence she had completed numerous educational and parenting classes, had tested clean for two years, had visited consistently with the children and continued to have a strong bonded relationship with them. (Id. at p. 432.) The respondent in that case, the Los Angeles Department of Children and Family Services, did not dispute the mothers allegations of changed circumstances. (Ibid.) Here, in contrast, the mother had not completed any program. While she was pursuing reunification with the childs sibling, she had not yet reunified with that child and it therefore was uncertain reunification would be successful. The mothers claim of changed circumstances also was undermined, somewhat, by a history of failing to follow through with plans to enroll in or complete programs, and by the evidence she already had missed a substantial number of meetings at the outpatient program in which she enrolled at the time she filed her petition.

Even more importantly, the mother made no showing that the childs best interests would be promoted by providing the mother with additional reunification services. At the time the mother filed her petitionshortly before the selection and implementation hearingthe courts foremost concern was the childs interest in stability, an interest that outweighed any interest the mother had in reunification. (In re Anthony W., supra, 87 Cal.App.4th at pp. 251-252.) The child was in a stable environment, with foster parents to whom she was attached and who wished to give her a permanent home. It was not at all clear the mother would provide the child with a stable home or that she would complete the programs she claimed she was enrolled in or would reunite with the childs younger sibling. In effect, the mother was seeking additional time to show she was capable of change. It is not in a childs best interests to wait indefinitely to find out whether a parent will become an adequate parent. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Anthony W., supra, at p. 252.)

II.

Adoption as the Permanent Plan

The mother complains the court ordered a permanent plan of adoption, contending a plan of guardianship would have been preferable. The court in In re Fernando M. (2006) 138 Cal.App.4th 529, 534, summarized the pertinent principles: After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the childs interest in a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.] [Citation.] The purpose of a section 366.26 hearing is to provide stable, permanent homes for dependent children. [Citation.] At a section 366.26 hearing the juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care. [Citation.] Adoption is the preferred plan and, absent an enumerated exception, the juvenile court is required to select adoption as the permanent plan. [Citation.] The burden falls to the parent to show that the termination of parental rights would be detrimental to the child under one of the exceptions. [Citation.]

It further has been recognized,   Adoption is the Legislatures first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker. [Citation.] Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child. [Citation.] [Citation.] At this stage of the dependency proceedings, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. [Citation.] (In re Naomi P. (2005) 132 Cal.App.4th 808, 822, italics in the original.)

The mother cites Santosky v. Kramer (1982) 455 U.S. 745, where the court recognized a parents fundamental interest in his or her child and discussed the procedural safeguards necessary to protect that interest. That the mother has a fundamental interest in the child is not in question. In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 250-256, our states high court analyzed Californias dependency statutes, concluding they satisfy the Santosky courts concerns. We therefore do not look beyond the dependency statutes to determine whether the mothers interest has been adequately protected. The question simply is whether, at this stage of the proceedings, the mother met her burden of showing exceptional circumstances requiring the juvenile court to choose an option other than adoption.

One exception, potentially applicable here, is stated in section 366.26, subdivision (c)(1)(A): The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The record here shows the mother did not maintain regular visitation with the child. To the contrary, her visits were sporadic, and ceased altogether when she slipped back into addiction. She began to visit regularly only shortly before the date set for the selection and implementation hearing. In addition, to show the child would benefit from continuing the relationship for purposes of the exception, a parent must show the parent/child relationship 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 parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

The evidence, while demonstrating the child has some attachment to the mother, does not demonstrate an attachment to the degree that maintaining the parent/child relationship outweighs the childs interest in a permanent, stable home. The mother notes the Agency at one time had recommended a permanent plan of legal guardianship. While this is true, it is only because the agency believed the childs best interests were to stay with the foster parents and the foster parents at first were unwilling to adopt the child. There is no suggestion the Agency ever believed a legal guardianship provided a better alternative to adoption if the foster parents wished to adopt, or that the Agency recommended guardianship because the child had strong emotional ties to the mother.

The mother notes the child was in a therapeutic nursery and had been sent to a special treatment center after exhibiting sexual acting out behavior. This again is true, but although it is evidence the child was emotionally fragile, it does not tend to show a close emotional bond with the mother or that the childs emotional health will be promoted by an uncertain future. If anything, it underlines the problems the child had experienced in the mothers home, as the Agency felt she needed special treatment shortly after being removed from the mothers home.

The childs own wishes were shown when she asked her foster mother if she could use the foster mothers last name, and stated her desire to remain with the foster parents. The mother points out it is unlikely the child was fully aware of what it meant to be adopted or that she perfectly understood the implications of her requests. While this is true, the court still was entitled to conclude that the child sought a permanent home with the foster parents.

In sum, the mother did not meet her burden of establishing the exception set forth in section 366.26, subdivision (c)(1)(A).

The only other potentially applicable exception is set forth in section 366.26, subdivision (c)(1)(E): There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. Reflecting the Legislatures preference for adoption when possible, the sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a compelling reason for concluding that the termination of parental rights would be detrimental to the child due to substantial interference with a sibling relationship. [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.] (In re Celine R. (2003) 31 Cal.4th 45, 61.)

The mother makes no claim the child has had any contact with, or would suffer detriment from being separated from, her older half-sibling. There is evidence the child had regular visits with her younger siblingat least shortly before the selection and implementation hearingand the siblings were happy to see each other. They separated when the childs sibling was approximately one year old. They shared few common experiences. On this evidence, the court did not err or abuse its discretion by concluding the sibling bond exception did not apply. In addition, the foster mother testified she would continue the visits if she adopted the child if that is what the child wished, stating the child can see [the sibling] whenever she wants. There is no problem.

The mother points out the child has a large concerned family. There is little evidence the child has had much, or any, contact with the family, except for contact with the mother, the great-grandmother and with the childs younger sibling. In any event, there is no exception to adoption because of the existence of a large, concerned family. We also note, while recognizing that situations can change, the foster mother further testified that the child could see who she wants to see[]thats what Im going by, what [the child] said, not by what I say. Because I feel like if she still needs to, you know, see her mom and her dad and her sister, and she does, you know, and I have no problem with her seeing them.

Conclusion

The juvenile court did not abuse its discretion by denying the mothers section 388 petition for a modification. Substantial evidence supports the courts conclusion that the child is adoptable and that the mother did not establish an exception justifying a permanent plan of something other than adoption. The courts order terminating the mothers parental rights was not an abuse of discretion. The orders denying the petition for a modification and terminating the mothers parental rights and placing the child for adoption are affirmed.

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STEIN, Acting P. J.

We concur:

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SWAGER, J.

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MARGULIES, J.

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

[2] As relevant, section 366.26, provides:

(l)(1) An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply:

(A) A petition for extraordinary writ review was filed in a timely manner.

(B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record.

(C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits.

(2) Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.

[3] Section 388 provides:

(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioners relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction.

(b) Any person, including a child who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related by blood, adoption, or affinity through a common legal or biological parent to a child who is, or is the subject of a petition for adjudication as, a dependent of the juvenile court, and may request visitation with the dependent child, placement with or near the dependent child, or consideration when determining or implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child. The court may appoint a guardian ad litem to file the petition for the dependent child asserting the sibling relationship if the court determines that the appointment is necessary for the best interests of the dependent child. The petition shall be verified and shall set forth the following:

(1) Through which parent he or she is related to the dependent child.

(2) Whether he or she is related to the dependent child by blood, adoption, or affinity.

(3) The request or order that the petitioner is seeking.

(4) Why that request or order is in the best interest of the dependent child.

(c) If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the persons and by the means prescribed by Section 386, and, in those instances in which the means of giving notice is not prescribed by those sections, then by means the court prescribes.