In re Evan R.

Filed 7/27/06 In re Evan R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 orders of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed.

Ryan R. and Keri T. appeal from orders of the juvenile court denying their petitions under Welfare and Institutions Code section 388 to reinstate services designed to help them reunify with their sons, Evan and Tyson R. (All further statutory references are to the Welfare and Institutions Code.) Each contends that the juvenile court abused its discretion in denying his or her section 388 petition because changed circumstances established that the provision of reunification services was in the children's best interests. Keri also appeals the court's order terminating parental rights, contending that the court erred in finding that the beneficial relationship exception to placing the children for adoption as set forth in section 366.26, subdivision (c)(1)(A)) was inapplicable. We reject these arguments and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2004, the Imperial County Department of Social Services (the Department) took protective custody of Evan (then age three) and Tyson (age two), as well as their half-sister Kendra D. (age nine) after a domestic violence incident between Keri and Ryan at their home. Just after the incident, Kendra left with her maternal aunt; after resistance by the parents, the police removed Evan and Tyson. The officers arrested both parents for interfering with a police investigation and arrested Ryan for drug possession and other charges. At the time, both parents tested positive for amphetamines, including methamphetamine; Ryan also tested positive for marijuana. The children were detained at the Betty Jo McNeece Receiving Home.

A social worker interviewed Kendra, who indicated that Ryan and Keri punished the children by hitting them with a flyswatter or a stick, that Ryan had various weapons and that the parents had been involved in multiple incidents of domestic violence. Evan talked of similar domestic violence. The social worker described Keri and Ryan's home as in disarray, with no beds and very little food. He also indicated that the carpet and the walls had dog feces and blood on them and the doors and walls had holes that appeared to have been caused by violence.

The Department filed a petition pursuant to section 300 on behalf of all three children and at the detention hearing on April 27, the court ordered the children detained at the receiving home, a foster or group home or an approved relative's home. In early May, the court granted the social worker a temporary restraining order based on evidence that Ryan had attempted to discover the social worker's home address, apparently with the intent of harming him. The Department filed an amended petition on behalf the children after hair follicle tests on Evan and Tyson showed the presence of amphetamines. The Department placed the children with their maternal grandmother, Wendy D. For the jurisdictional hearing, the social worker prepared a report indicating that the children were happy in Wendy's care and that Kendra had been in contact with her father, Neil W. The report noted that although the parents had agreed to participate in voluntary family maintenance services from August 2003 to February 2004 as a result of two prior referrals to the Department, the parents had not participated in the services offered during that time. At the jurisdictional hearing, the parents submitted on the amended petition and the court declared the children to be its wards pursuant to section 300, subdivision (b). It ordered reunification services for the parents and, at the Department's request, withdrew the restraining order against Ryan.

Thereafter, the social worker prepared a disposition report indicating that although the parents claimed that they were willing to do whatever was necessary to have their children returned to them, they had continued to fail to participate in services ordered by the court. The social worker reported that Ryan had recently been arrested for possession of drugs, possession of drug paraphernalia, possession of methamphetamine for sale and other charges, and that both parents had admitted to drug use. The social worker indicated that the children were still happy in Wendy's care, that they had made no requests to return to their parents and that Kendra had been in contact with Neil.

Based on the circumstances, the social worker opined that the children would be at risk if returned to their parents' care and that the parents had "done very little to alleviate the problems" that led to the children's detention. He recommended reunification services for the parents, including a parenting class, an out-patient drug rehabilitation program, an anger management class, individual counseling, submission to random drug testing and abstention from the "inappropriate use" of alcohol or illegal drugs during visits with the children.

The Court Appointed Special Advocate (the CASA) for the children also prepared a written report for the court's consideration at the dispositional hearing. In it, she reported that Keri and Ryan failed to show up for a scheduled meeting with her in August, that her subsequent attempts to reach Keri by phone were unsuccessful and that neither Keri nor Ryan returned any of her messages. The CASA was able to meet with Wendy and her husband, John, and had an opportunity to talk with the children at Wendy's home. She reported that Wendy and John had contacted Neil, who Keri had prevented from seeing Kendra in the past, and arranged for Kendra to visit Neil at his home in Phoenix on several occasions and that Kendra enjoyed visiting him. The CASA also reported that the boys were very comfortable and affectionate with their grandparents. She recommended that the children remain in their placement with Wendy and John, that Kendra be allowed to continue to visit Neil and that individual and family counseling be made available to all of the children.

At the dispositional hearing in late August, the court found that it was necessary to remove the children from the parents' custody, ordered the children's continued placement in Wendy's home and ordered reunification services for the parents as recommended by the social worker. The court admonished Keri and Ryan that they needed to focus on complying fully with their reunification plans in the next six months because, under the law, the children were entitled to a permanent plan by the end of that time.

In November, Ryan was arrested for assault with a deadly weapon, vandalism, making bomb threats and threatening to burn down his ex-girlfriend's house. Although Keri professed to have left Ryan the preceding month and to have obtained a temporary restraining order against him, she visited him regularly in jail. Keri completed the first phase of her parenting class and in January 2005, began to attend a drug rehabilitation program, although during that same period, she tested positive for methamphetamine and marijuana and failed to participate in individual counseling. Meanwhile, the children continued to do well in their placement with Wendy and John.

The social worker prepared a status report in January 2005 indicating Ryan said that he planned to fire his attorney, that he and Keri had never agreed to participate in the services ordered by the court and that he refused to complete any of them. Ryan claimed that he could prove he was elsewhere when the incidents of domestic violence in October and November of 2004 occurred and that, in any event, he was confident that Keri would refuse to testify against him. At that time, Keri's whereabouts were unknown and an anonymous caller had implied to the social worker that Keri was in hiding after having stolen a car and $600 from a friend.

The status report indicated that the children continued to thrive in their grandparents' care, but that Kendra had expressed a desire to move in with Neil, who planned to seek custody of her. In her report for the six-month review hearing, the CASA observed that once Neil started showing interest in Kendra, Keri started making a "last ditch" effort to comply with the court's orders. Both the social worker and the CASA recommended that the court terminate parental rights at the six-month hearing.

In January 2005, the court appointed counsel for Neil and ordered a placement evaluation of his home in Arizona; in February it relieved Ryan's existing counsel and appointed him new counsel; and in March it declared Neil to be Kendra's presumed father. As a result of these and other circumstances, the court continued the six-month review hearing numerous times.

At the six-month review hearing in March 2005, the court found that the parents had failed to make progress in resolving the issues that led to the children's detention and terminated reunification services for Keri and Ryan. It set a permanent plan selection hearing under section 366.26 for July 25, 2005, and authorized visitation between the parents and their children pending that hearing. The court denied without prejudice Neil's request for custody of Kendra pursuant to a section 388 petition substantiating that the request was in Kendra's best interests.

In June 2005, Neil filed a petition under section 388 seeking custody of Kendra. At the July 25, 2005 hearing, the court granted Neil's petition, subject to reasonable visitation by Keri, terminated its jurisdiction over Kendra, and continued the permanent plan selection hearing for the boys.

Keri thereafter filed a section 388 petition seeking to have the court reinstate reunification services for her in light of her participation in a perinatal program, her regular contact with the boys and her recent employment. At Ryan's request, the court removed his counsel and appointed new counsel for him, which resulted in several continuances of the permanent plan selection hearing. Through his new attorney, Ryan submitted two section 388 petitions (requiring further continuances of the permanent plan selection hearing); as relevant here, Ryan asked the court to reinstate reunification services for him based on his completion of an outpatient drug program and his recent completion of the first phase of a two-phase parenting class.

In accordance with a stipulation by counsel, the court heard the section 388 petitions and the permanent plan selection concurrently. After hearing testimony by Keri, the social worker and Georgia, the court denied Ryan's petitions. As to Ryan's application for the reinstatement of reunification services, the court noted that Ryan had only visited the boys in person twice and had failed to participate in a number of ordered services, including an anger management program and individual counseling, despite the fact that he had the opportunity to do so prior to his incarceration in November 2004. It also pointed out that although Ryan had started to utilize services while in custody, it could not determine whether he would have done so, or whether he would have remained off of drugs, if out of custody. Thus, while the court concluded that Ryan had made "some progress" toward reunification, he had at best established changing, but not changed, circumstances.

The court acknowledged that Keri's application for the reinstatement of reunification services presented "a more difficult question." It found that Keri had completed phase 1 of the parenting program, participated in an outpatient drug program and tested clean for drugs for four months. However, it also found that Keri had only recently begun to address the domestic violence issue, which had also led to the boys' removal, and had not followed through on her individual counseling. Based on these circumstances, the court concluded that Keri had not shown it was in the children's best interests to grant her further reunification services.

Based on the evidence before it, the court found that Evan and Tyson were adoptable and that, although Keri had maintained regular visitation with them, Wendy, rather than Keri, had established a strong parental relationship with the boys and thus the beneficial relationship exception under section 366.26, subdivision (b)(1)(A) was inapplicable. It terminated Keri and Ryan's parental rights and designated adoption as the permanent plan for Evan and Tyson. Each of the parents appeals the order denying his or her request for reinstatement of reunification services and Keri appeals the order terminating her parental rights to the boys.

DISCUSSION

1. Denial of the Section 388 Petitions

Section 388, subdivision (a) allows a parent of a child who has been declared a dependent of the juvenile court to petition the court to modify, change or set aside any of its previous orders based on changed circumstances or new evidence. Where, as here, the court has terminated reunification services, section 388 provides an "'escape mechanism'" for situations in which a parent completes a reformation in the final period before the actual termination of parental rights. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Although the focus of the proceedings under such circumstances is no longer on the parents' interest in the care, custody and companionship of the child, but instead on the child's needs for permanency and stability, "the [statutory scheme] provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status." (In re Marilyn H., supra, at p. 309.)

To obtain relief under section 388, the petitioning parent must show not only changed circumstances or new evidence, but also that the requested change is in the child's best interests. (§ 388; Cal. Rules of Court, rule 1432(c); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The decision about whether a prior order should be modified rests within the juvenile court's discretion and we will not disturb its ruling unless the court's determination was "'arbitrary, capricious, or patently absurd.'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

A. Ryan's Petition

By the time the court heard the section 388 petitions, the dependency proceedings had been pending for more than a year and a half. Despite the amount of time available to take advantage of services designed to permit reunification of the family, Ryan made virtually no effort to comply with his reunification plan (in fact there was evidence that he affirmatively refused to participate in services) until he was in custody. During the time that the boys were in Wendy's care, Ryan did not contact them by phone or letter, nor did he send them any gifts or birthday cards.

Ryan nonetheless suggests that he was hindered in his efforts to comply with his reunification plan because only very limited services were available to him while he was in jail; however, although Ryan had ample time to take advantage of services prior to his incarceration, there is evidence in the record that he essentially refused to participate in them. Further, there is ample evidence in the record to support the juvenile court's skepticism about whether Ryan would have undertaken services if he had remained out of custody. The juvenile court did not abuse its discretion in finding that Ryan had not established either changed circumstances or that it was in the boys' best interests to reinstitute reunification services for him.

B. Keri's Petition

During the detention period, Keri maintained regular contact with the boys, but made minimal effort to comply with her reunification plan until after the court terminated services, at which point she began participating in a perinatal program and got a job. Thereafter, Keri remarried, moved into a two-bedroom condo, started to drug test clean and began to participate in an outpatient drug program. She did not, however, participate in an anger management program or individual counseling. Further, despite Keri's substantial progress in the months preceding the combined hearing, there was evidence that she needed to do "a lot of work" before being capable of parenting the boys.

Regardless of whether we agree with the juvenile court's conclusion that Keri had established "changing" rather than "changed" circumstances, we nonetheless find that the evidence was more than sufficient to support the court's finding that the boys' best interests would not be served by reinstituting reunification services for her. Evan and Ryan had thrived in the care of Wendy and John, with whom the boys had bonded and who all parties admitted had provided a stable and loving home environment for the boys during their detention. At the time of the hearings on the section 388 petitions, the boys had lived with Wendy and John for a year and seven months, a substantial period of time given the children's young ages. Although the evidence showed that the boys had a loving bond with Keri, it also showed that Wendy and John were the parental figures in the boys' lives.

Despite this evidence, Keri asserts that the court should have granted her request because she was seeking reunification services rather than custody. However, Keri's argument loses sight of the fact that, at this late point in the proceedings, the primary consideration in determining a child's best interests is in assuring stability and continuity. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) "'When 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.'" (Ibid., quoting Burchard v. Garay (1986) 42 Cal.3d 531, 538.) Here, granting Keri the relief she requested would have extended the boys' detention for another not-insignificant period of time. We find no abuse of discretion by the juvenile court in concluding that the boys' needs for continuity and stability were best served by denying Keri's section 388 petition.

2. Termination of Keri's Parental Rights

Keri also asserts the court erred in finding inapplicable the beneficial parent-child relationship exception to adoption in accordance with section 366.26, subdivision (c)(1)(A) (hereinafter, § 366.26(c)(1)(A)). However, where reunification fails, adoption is the legislatively-preferred permanent plan for dependent children. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Thus, where the court finds that the child is adoptable, the objecting parent bears the burden to show that the termination of his or her parental rights would be detrimental under one of five specified exceptions listed in section 366.26, subdivision (c)(1). (In re Autumn H., supra, at p. 574.) Under the exception relied on by Keri, she must show that termination would be detrimental to the boys because she "maintained regular visitation and contact with the child[ren] and the child[ren] would benefit from continuing the relationship." (§ 366.26(c)(1)(A).)

In reviewing whether sufficient evidence supports the trial court's finding, we review the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H, supra, 27 Cal.App.4th at p. 576.)

Substantial evidence supports the court's finding the beneficial relationship exception of section 366.26, subdivision (c)(1)(A), did not apply.

Here, the evidence was undisputed that Keri consistently visited the boys throughout the pendency of these proceedings, that the boys called her "Mommy" or "Momma" and that she had a loving relationship with them. However, to meet the burden of proof to establish this statutory exception, a parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits, which undoubtedly confer certain benefits to the child. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Rather, what is required is that the parent have had such contacts with the child that he or she occupies a parental role in the child's life, resulting in a "significant, positive, emotional attachment," the termination of which would "greatly harm" the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) "[I]f an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanent plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

Here, although the boys enjoyed their visits with Keri, they transitioned well when the visits were over and did not ask for her between visits. The evidence showed that the boys looked to Wendy and John as their parent figures and that, although Keri's life had become more stable, she still had problems that would preclude her from acting in a parental role toward the boys. In addition, the evidence also showed that Wendy and John were more than willing to foster a continuing relationship between the boys and their mother and thus it does not appear that the boys would be "greatly harmed" by a termination of Keri's parental rights. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Similarly, Keri did not show her relationship with the boys was sufficiently beneficial to outweigh the benefits of adoption. Wendy and John had strongly bonded, and established parental relationships, with the boys and expressed their eagerness to adopt. At the time of the permanent plan selection hearing, the boys had been with Wendy and John rather than Keri for a year and seven months, in a stable and nurturing environment. The social worker opined that adoption was in the boys' best interests. After weighing the strength and quality of the boys' relationships with Keri against the potential benefit of placing the boys for adoption, the juvenile court concluded that the boys were better off being placed "in the most permanent and secure alternative that can be afforded them." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) The evidence before the court supported a finding the preference for adoption had not been overcome and that section 366.26(c)(1)(A) did not preclude a termination of Keri's parental rights. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)

DISPOSITION

The orders are affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

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