In re Alexis J.
Filed 9/10/07 In re Alexis J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re ALEXIS J. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. NANCY J., Defendant and Appellant. | D050587 (Super. Ct. No. EJ2659A, B) |
APPEAL from a judgment of the Superior Court of San Diego County, Gary Bubis, Commissioner. Affirmed.
Nancy J. appeals a judgment of the juvenile court terminating her parental rights to her minor children Alexis J. and Arturo J. (together the minors) under Welfare and Institutions Code section 366.26.[1] Nancy contends that the court erred by summarily denying her section 388 petition for modification, in which she sought to have the court vacate the selection and implementation hearing and order six more months of services, or return the minors to her custody. She also challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2005, nine-year-old Alexis and five-year-old Arturo became dependents of the juvenile court under section 300, subdivision (b) and were removed from Nancy's custody, based on findings that Nancy abused methamphetamine, that there was drug paraphernalia in the home, and that the minors had observed Nancy use drugs. Nancy had been using drugs for 10 years and had a history of relapsing. The minors were placed with the maternal aunt and uncle, with whom they had previously lived during Nancy's incarceration.
In the next 12 months, Nancy failed to comply with reunification services, continued to test positive for methamphetamine, and was arrested on various theft charges. She admitted that she was not ready to have custody of the minors. The court terminated services and set a section 366.26 selection and implementation hearing.
The social worker recommended adoption as the minors' permanent plans. The minors had been living with their maternal aunt and uncle for more than 18 months and were doing well in that placement. The aunt and uncle were committed to adopting the minors and were proceeding with an adoptive home study.
Nancy's contact with the minors was sporadic throughout the dependency period. Alexis did not ask about Nancy and said she could not remember Nancy ever being her caregiver. Alexis said she wanted to continue living with her aunt and uncle, and wanted to see Nancy once in a while. When the social worker told the minors that Nancy loved them and wanted to fight for them, Alexis replied, "It's already too late." Arturo often asked the social worker to send Nancy his artwork. He said that he wanted to stay with his aunt and uncle, but he also wanted to live with Nancy. The social worker noted that Nancy had not played a parental role in the minors' lives for the past two years, and that she was in only the beginning stages of recovery. In the social worker's opinion, Nancy and the minors did not have a beneficial parent-child relationship that outweighed the benefits of adoption.
Nancy filed a section 388 petition for modification, in which she sought to have the court vacate the selection and implementation hearing and order six more months of services, or alternatively, return the minors to her custody. As changed circumstances, Nancy alleged that she was in a residential drug rehabilitation program and that she had tested clean for three months. Nancy further alleged that granting her petition was in the minors' best interests because Arturo wanted to live with her and Alexis wanted to continue to see her. The court summarily denied the petition.
Following a contested selection and implementation hearing, the court found that the minors were adoptable and that none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.
DISCUSSION
I
The Court Properly Denied a Hearing on Nancy's Section 388 Petition
Nancy contends that the court erred by summarily denying her section 388 modification petition. She asserts that she made a prima facie showing that her circumstances had changed, and that the proposed modification further services or placement of the minors with her was in the minors' 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 that 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, Nancy alleged that she was in a residential drug treatment program and that she had been drug-free for three months. However, given Nancy's 10-year drug history and her tendency to relapse, a three-month period of sobriety was, at most, 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 whether 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 have concluded that any change in Nancy's circumstances was "not legally sufficient to require a hearing on her section 388 petition." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
Further, Nancy made no prima facie showing that offering her further services or returning the minors to her custody would be in the minors' best interests. Nancy was offered, or received, reasonable services for 14 months, yet made no progress toward reunifying with the minors. She was in only the beginning stages of recovery and was far from being ready to parent the minors. At the time of the hearing on Nancy's modification petition, the focus of the proceedings had shifted from family preservation to providing the minors with a safe, stable and permanent home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) The minors had lived with the maternal aunt and uncle for 18 months and viewed them as their parents. 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, Nancy 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
Substantial Evidence Supports a Finding That There Was No Beneficial Parent-Child Relationship
Nancy 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 her parental rights. She asserts that she made a concerted effort to maintain contact with the minors, who would benefit from continuing the parent-child relationship.
A
We review the judgment to determine whether there is substantial evidence to support it. (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 that 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 that 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 that termination of parental rights would be detrimental to the child under one of six specified exceptions. ( 366. 26, subd. (c)(1)(A)-(F); 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 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 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 that 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
The evidence showed that Nancy's visitation with the minors was sporadic throughout the proceedings. Her efforts to visit regularly once she acknowledged her drug problem came too late. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450 [inconsistent visitation that becomes consistent shortly before selection and implementation hearing is not sufficient to satisfy first prong of exception under section 366.26, subdivision (c)(1)(A)].) Even if we were to conclude that Nancy maintained regular visitation and contact with the minors, she did not meet her burden of showing that their relationship was sufficiently beneficial to outweigh the benefits of adoption.
Nancy did not occupy a parental role in the minors' lives. Alexis had no memory of Nancy being her caregiver. For more than 18 months, the minors had looked to their maternal aunt and uncle to meet their needs. Although Nancy was appropriate during visits, and the minors enjoyed seeing her, there was no evidence of a "significant, positive, emotional attachment" from the minors to Nancy such that terminating the parent-child relationship would result in great detriment to the minors. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Rather, the evidence showed the minors' need for permanence and stability through adoption 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.) The minors, whose needs Nancy could not meet, deserve to have their custody status promptly resolved and their placement made permanent and secure. There is substantial evidence supporting the court's finding that the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Nancy's parental rights.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
IRION, J.
Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line Lawyers.
[1] Statutory references are to the Welfare and Institutions Code.
