In re S.A.
Filed 4/15/11 In re S.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 S.A. et al., Persons Coming Under the Juvenile Court Law. | |
| SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ANA A., Defendant and Appellant. | D058398 (Super. Ct. No. SJ12082A-C) |
APPEAL from orders of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
Ana A. appeals orders terminating her parental rights to her dependent children under Welfare and Institutions Code section 366.26.[1] She also appeals an order summarily denying her petition for modification under section 388. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Ana A. is the mother of four children, daughters J.C., C.A. and S.A. (collectively, the children), and son David A.[2] The children are now ages three, nine and 16 years old, respectively. David is 13 years old. The father of C.A., S.A. and David is deceased. J.C.'s father, C.C., is serving a 15-year prison term for committing multiple sex crimes against C.A.
When Ana moved to the United States in 2003, she left the three oldest children with their maternal grandmother and stepgrandfather in Mexico. Approximately six months to a year later, Ana brought C.A. and S.A. to live with her, leaving David with his grandparents.
In April 2008 the San Diego County Health and Human Services Agency (the Agency) substantiated allegations the children's stepgrandfather sexually abused S.A. Ana also reported the stepgrandfather had sexually abused her starting when she was six years old. The Agency offered services to Ana. However, Ana moved without notifying the social worker of her new address and did not participate in voluntary services.
In October 2008 the Agency received a referral alleging Ana was not protecting her daughters from sexual abuse by C.C. The reporter alleged S.A. told Ana that she saw C.C. in C.A.'s bed while Ana was working out of the home. C.C.'s pants were down and C.A.'s underwear was pulled down to her knees. Ana explained to S.A. the devil sometimes takes over people's bodies and makes them do bad things.
C.A., then age six, described acts of sexual intercourse perpetrated on her by C.C. She said the abuse started when she was five years old. C.A. said she told her mother many times C.C. touched her vagina but her mother told her it was not true.
Ana denied C.C. abused C.A. She said S.A. told her only that she had a dream in which C.C. tried to touch C.A. Ana believed S.A. was traumatized from the stepgrandfather's sexual abuse and needed therapy. Ana said C.A. told her C.C. did not touch her.
During a forensic interview, S.A. said C.C. sexually abused her more than once, and threatened to abuse C.A. if she did not comply with his demands. When S.A. told her mother about the abuse, which included anal penetration, Ana threatened to send her to live with the maternal grandmother and stepgrandfather. Ana told S.A. her statements were not true.
In a police interview, C.C. confessed he had sexual intercourse with and orally copulated C.A. He blamed C.A. for initiating sexual contact.
The social worker concluded that Ana did not protect her children and did not understand the dynamics of sexual abuse. A clinical psychologist stated Ana's intellectual functioning fell within the lower limit of the borderline range of intellectual ability. Ana was assessed with a personality disorder with histrionic, narcissistic and dependent traits. The clinical psychologist stated Ana was an immature, self-focused and emotionally needy woman who tended to mask anger, depression and anxiety with an ingratiating and manipulative attitude. The clinical psychologist did not believe that insight-oriented treatment was likely to be effective in view of Ana's reduced insight, limited intellectual abilities, self-focus and the absence of a sense of discomfort with her own behavior and decisions.
David rejoined Ana in November 2008, approximately one month after the children were detained.
During the first six-month reunification period, S.A. said Ana accused her of not telling the truth about being abused by C.C. During visits, S.A. displayed some hostility towards Ana. In the second six-month reunification period, S.A. refused to visit Ana and stated she did not want to have any contact with her. C.A. also stated she did not want to see Ana but continued to visit her. S.A. and C.A. said they did not want to return to Ana's care.
In November 2009 C.A. wrote a letter to Ana explaining her feelings about Ana's lack of protection. C.A. wrote, "You should be ashamed for not believing me." Ana told C.A. she did not believe C.A. wrote the letter and insisted the letter was composed by C.A.'s therapist.
The social worker did not believe Ana was ready to engage in therapy with either child. She stated Ana lacked insight into the emotional impact of sexual abuse on S.A. and C.A. The social worker recommended the juvenile court suspend visits and telephone contact between Ana and her older daughters. C.A.'s therapist stated that any further contact with Ana had the strong propensity to perpetuate the emotional damage C.A. had worked very hard to repair. S.A.'s therapist stated that S.A. experienced significant distress with visitation, and felt angry, sad, depressed and anxious when she had contact with Ana.
The juvenile court suspended Ana's visitation with S.A. and C.A. in February 2010. Later that month the juvenile court terminated reunification services and set a section 366.26 hearing.
In September 2010 Ana filed section 388 petitions (the petitions) seeking additional family reunification services. In support of the petitions, Ana submitted a letter from a psychologist she had recently consulted. The psychologist recommended extending reunification services to Ana. He reported that Ana did not appear to present any danger to herself or her children, and there was no evidence of severe mental illness that would affect her ability to be a responsible and caring parent.
The juvenile court summarily denied the petitions.
At the October 13, 2010 section 366.26 hearing, the juvenile court admitted the Agency's report and addendums in evidence. The social worker and Ana testified.
The Agency reported that S.A., C.A. and J.C. were placed together in a prospective adoptive home and were adjusting well. S.A. wanted to be adopted. She resented Ana and refused any contact with her. C.A. continued to be disappointed and hurt at Ana's unwillingness to protect her. S.A. and C.A. returned gifts that Ana sent to them, stating they did not want to receive anything from their mother. The social worker did not believe Ana had a parent/child relationship with S.A. and C.A.
Ana visited J.C. for two hours every week. She rarely missed a visit. J.C. appeared to be happy to see her mother. J.C. was active and defiant, and ignored Ana when she tried to set limits on or modify J.C.'s behaviors. When J.C. became frustrated, she did not seek reassurance or comfort from Ana. The social worker testified J.C. recognized Ana and had a good time during visits but there was no indication J.C. was attached to Ana. The social worker stated Ana had a friendly relationship with J.C. and was comfortable with her, but it was not a parent/child relationship.
The social worker did not believe the children had sibling relationships with David. S.A. and C.A. had not lived with David since 2003 or 2004. J.C. never lived with her brother. David occasionally joined Ana when she visited J.C. His interactions with J.C. were minimal.
Ana testified J.C. called her "mommy." When J.C. was in her previous foster placement, the foster parent facilitated one additional visit each week. Ana missed S.A. and C.A. She talked to them by telephone every day.
The social worker testified S.A. and C.A. said they did not talk to Ana when she telephoned them.
The juvenile court found that Ana's testimony was not credible. S.A. and C.A. did not derive any benefit from their relationship with Ana, and Ana did not assume a parental role when she visited J.C. The juvenile court found that there was no evidence the children and David shared meaningful sibling relationships. Further, there was no evidence adoption would interfere with the sibling relationships because the prospective adoptive family was willing to facilitate contact between the children and their brother. The juvenile court found that the children were adoptable and there were no exceptions to termination of parental rights, and terminated parental rights.
DISCUSSION
I
Section 388
Ana contends the court abused it discretion when it summarily denied her section 388 petitions seeking an extension of family reunification services. Ana argues she provided new evidence she accepted responsibility for not protecting her children, her psychological profile indicated she was capable of responsible parenting and she was capably raising her 12-year-old son. She contends she presented evidence sufficient to establish a prima facie case that it would be in S.A.'s and C.A.'s best interests to participate with her in family therapy, and J.C. would benefit from services because her interaction with Ana was loving. Ana argues the evidence presented was sufficient to merit a hearing on the petitions.
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, there is a change of circumstances or new evidence, and the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); Cal. Rules of Court, rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "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 (Zachary G.).) When 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; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
We review a summary denial of a hearing on a modification petition for abuse of discretion. (Zachary G., supra, 77 Cal.App.4th at p. 808.)
The juvenile court could reasonably conclude that Ana's section 388 petitions did not state a prima facie showing of new evidence or changed circumstance, and best interests of the children, that would merit an evidentiary hearing. Ana's supporting evidence consisted solely of a letter from a psychologist. While the psychologist's report was more favorable than Ana's initial clinical evaluation, it was based on one interview with Ana. The report contained no evidence that Ana would be able to meet her children's emotional needs and safely care for them within a reasonable time. "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
In making his recommendation, the psychologist did not receive any information about the children's dependency cases from any source other than Ana and did not consider the effect an extension of services would have on the children's well-being. At the time the petitions were filed, the children had been in foster care for almost two years. The maximum reunification period permitted under California law is generally 18 months. (§ 366.22, subd. (a); see § 366.21, subd. (a) [for children under age three, the juvenile court may terminate reunification services after six months].) J.C., who was almost three years old, had not lived with Ana since she was 10 months old. She was in need of a permanent, safe and stable home. S.A. and C.A. did not want to return to Ana's care. Further, to the extent it was in S.A.'s and C.A.'s best interests to participate in family therapy with Ana, the juvenile court could authorize child-centered services without extending the reunification period. (See, e.g., § 16501, subd. (a).)
Ana did not set forth a prima facie case that she would be able to reunify with the children within a reasonable time or that it was in the children's best interests to extend the reunification period. We conclude that the juvenile court did not abuse its discretion when it summarily denied Ana's section 388 petitions.
II
Termination of Parental Rights
Ana contends the court erred when it terminated her parental rights to her children. She argues termination of parental rights would be detrimental to the children under the beneficial parent-child relationship and the sibling relationship exceptions to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i) & (v).)
At a section 366.26 hearing, the court may select one of three permanency plans: adoption, guardianship, or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) There is a strong preference for adoption over alternative permanency plans. (Id. at p. 297; San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888.) If the court determines the 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.)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re S.B., supra, 164 Cal.App.4th at pp. 297-298; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.); S.B., supra, 164 Cal.App.4th at p. 298.)
A. The beneficial parent-child relationship exception
An exception to termination of parental rights exists when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "Benefit from continuing the relationship" means "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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) The exception does not require proof the child has a "primary attachment" to the parent or the parent maintained day-to-day contact with the child. (In re S.B., supra, 164 Cal.App.4th at p. 299; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1538; In re Casey D., supra, 70 Cal.App.4th at p. 51.)
Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
There is substantial evidence to support the juvenile court's conclusion that S.A. and C.A. did not have a beneficial relationship with Ana. Ana did not protect S.A. and C.A. from sexual abuse. Even after the perpetrator pled guilty to committing multiple sexual acts against C.A., Ana continued to deny such abuse had occurred. Ana's attitude and statements caused S.A. and C.A. to suffer emotional distress. S.A. did not want to reunify with Ana and cut off contact with her approximately a year before the section 366.26 hearing. C.A. also stated she did not want to return to Ana's care. S.A.'s and C.A.'s relationships with Ana continued to deteriorate to the point the juvenile court, on the recommendations of their therapists and the Agency, suspended visitation with Ana in February 2010. C.A. continued to be disappointed and hurt by her mother's unwillingness to protect her and did not want to resume any relationship with her. S.A. and C.A. did not trust Ana to protect them.
The record supports the finding that S.A. and C.A. did not have a significant, positive emotional attachment to Ana. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Further, S.A.'s stated desire to be adopted is further evidence termination of parental rights would not be seriously detrimental to her. The juvenile court did not err when it terminated Ana's parental rights to S.A. and C.A.
The social worker observed numerous visits between Ana and J.C. Ana was not able to assume a consistent parental role with J.C. J.C. was very active and mischievous. Ana did not redirect J.C.'s behaviors or set limits and instead allowed J.C. to do whatever she wanted to do, even if it endangered her safety. When Ana tried to engage her, J.C. ignored her mother and continued playing independently. At times J.C. appeared to be frustrated but did not seek reassurance or comfort from Ana. J.C. was not very affectionate with Ana. On several occasions before visits ended she asked for her caregiver and walked toward the exit. The social worker believed J.C. recognized Ana and felt comfortable in her presence. However, the social worker did not see any indication J.C. was attached to Ana.
The juvenile court could reasonably determine that adoption outweighed any benefit J.C. may have received from her relationship with Ana. (Autumn H., supra, 27 Cal.App.4th at p. 575; see In re Dakota H. (2005) 132 Cal.App.4th 212, 229-231.) J.C. was removed from Ana's care when she was 10 months old. At the time of the section 366.26 hearing, J.C. was almost three years old. Although Ana visited J.C. consistently, she was not able to maintain a parental role in J.C.'s life. We conclude that substantial evidence supports the juvenile court's finding the beneficial parent-child relationship exception did not apply to preclude termination of parental rights.
B. The sibling relationship exception
The sibling relationship exception applies when the parent shows by a preponderance of the evidence that termination of parental rights would substantially interfere with a child's sibling relationship, taking into consideration the nature and extent of the relationship. (§ 366.26, subd. (c)(1)(B)(v).) The juvenile court, in determining the nature and extent of the sibling relationship, considers factors such as "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 child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (Ibid.; In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.)
The sibling relationships at issue here are the children's relationships with their nondependent brother, David. With the exception of S.A., the children were not raised in the same home with him. (§ 366.26, subd (c)(1)(B)(v).) Ana left David with his grandparents in 2003, when S.A. was approximately eight years old, David was approximately four years old and C.A. was approximately one year old. At the time of the section 366.26 hearing, S.A. and C.A. had not lived with David for approximately six or seven years. J.C. never lived with her brother. The social worker did not believe the children had strong sibling relationships with David. There is no evidence in the record to show that the children shared significant common experiences or shared close bonds with David. (Ibid.)
Further, the court could reasonably infer that termination of parental rights would not significantly interfere with the sibling relationships. (§ 366.26, subd (c)(1)(B)(v).) The prospective adoptive family indicated they were willing to facilitate the children's contact with David. S.A., the sibling who had the most contact with David, is now of an age where she and David may independently maintain their relationship, if they wish.
To the extent termination of parental rights would interfere with the children's relationships with David, the juvenile court could reasonably conclude that ongoing contact with their brother was not in the children's best interest as compared to the benefit of legal permanence through adoption. J.C. was only three years old and would derive more benefit from a stable and secure family than she would a relationship with her brother. (In re Valerie A., supra, 152 Cal.App.4th at p. 1014 ["the application of [the sibling relationship] exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount"].) J.C. had a close bond with her older sisters, who expressed their wishes to grow up with her. There is no evidence in the record to show S.A. and C.A. felt a similar attachment to David.
On this record, the juvenile court reasonably determined the termination of parental rights would not substantially interfere with the children's sibling relationships. (§ 366.26, subd. (c)(1)(B)(v).) We conclude that the juvenile court did not err when it found that no exceptions applied that would preclude the termination of parental rights to the children.
DISPOSITION
The orders are affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
