In re Clarence J.

Filed 2/8/07  In re Clarence J. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Commissioner.  Affirmed.

            D.W. appeals the judgment terminating her parental rights over Clarence J. and James J.  She contends that the juvenile court abused its discretion by summarily denying her Welfare and Institutions Code section  388^[1] modification petition and erred by declining to apply the beneficial relationship exception to termination (§  366.26, subd. (c)(1)(A)).  We affirm.

BACKGROUND

            In April 2005, when Clarence was two years old and James was two months old, the San Diego County Health and Human Services Agency filed dependency petitions because Clarence and James had been exposed to violence between D.W. and their presumed father, Clarence J. Sr.  In July 2004, when D.W. was pregnant, Clarence J. Sr., slapped her in the face and pulled her through a window, causing her to fall on her stomach.  In December, D.W. threw a chair at Clarence J. Sr., and he grabbed her and threw her on the couch.  In January 2005, D.W. threw objects around the apartment, and Clarence J. Sr., grabbed her arms and pushed her against the sofa.  On March 23, D.W. and Clarence J. Sr., engaged in a physical altercation that involved pushing and shoving.  D.W. left with the children to stay in a shelter, but returned to the home and later minimized the violence.

            The children were detained in a foster home where they were later placed.  At the February 9, 2006 six-month review hearing, the court terminated reunification services and set a section  366.26 hearing for June.  The hearing was later continued to August.  In April, the children were placed with a relative.  On August 9, the day of the continued section  366.26 hearing, D.W. filed her section 388 petition.  The court summarily denied the petition and terminated parental rights.

DISCUSSION

I.

The Court Did Not Abuse Its Discretion by Denying an Evidentiary Hearing on D.W.'s Section 388 Petition

            " A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child.  [Citation.]  A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request.  [Citation.]  [¶]  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."  (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

            D.W.'s section 388 petition sought modification of the order terminating reunification services.  It asked that the order setting the section 366.26 hearing be vacated and that services be reinstated.  As changed circumstances, the petition alleged that D.W. had " attended four domestic violence classes and [was] working at Pacific Monarch."   The petition also alleged that it would be in the children's best interests " to reunify with their mother who loves them  .  .  .  ."

            In denying an evidentiary hearing on the petition, the juvenile court stated:  " [T]his case involves serious domestic violence.  Part of [D.W.]'s reunification plan was a domestic violence program, which I would assume would, at least, be a 52-week program as well as individual therapy.  [¶]  And in light of the information in the [section 366.26] report regarding other inciden[t]s and regarding minimization of domestic violence, it appears that there is no change of circumstances whatsoever and no pleading of best interests whatsoever."

            The court did not abuse its discretion by determining that D.W. had failed to make a prima facie showing that circumstances had changed in the six months since it terminated reunification services.

            At the outset of the case, D.W. admitted that she and Clarence J. Sr., had a history of domestic violence, but claimed that the children were not present when the violence occurred.  She said that she had made up the allegations in the dependency petitions because she was mad at Clarence J. Sr.

            Although the court ordered that D.W. and Clarence J. Sr., not visit the children at the same time, they came to visits together.  In May 2005, D.W. attended three sessions of an anger management class, apparently with Clarence J. Sr.  In August, she reported that Clarence J. Sr., had stabbed her with a knife.  She later described the wound as " only a scratch."   In September, she attended two individual therapy sessions and completed a 16-hour anger management class.  She also began attending a domestic violence group, but was present for only two sessions before she was dropped from the program due to an eight-week absence.  In October, she failed to appear for her psychological evaluation because she was incarcerated on a charge of prostitution.  She claimed that she had not complied with her case plan because Clarence J. Sr., followed her and she felt threatened.  The social worker offered her information about domestic violence shelters, but D.W. chose instead to stay with her mother at a motel, with friends, or with her father.

            By late November 2005, D.W. and Clarence J. Sr., had separated, and D.W. was living with a boyfriend  In January 2006, she attended three more individual therapy sessions and three sessions of the domestic violence group.  On February 1, her therapist reported " that even if given six more months of services, [D.W.'s] progress toward reunification would be minimal."   On February 3, D.W. was again arrested for prostitution.

            In June 2006, less than two months before D.W. filed her section 388 petition, the children's relative caregiver reported that D.W. said that her boyfriend had been physically abusing her.  D.W. also told the relative caregiver that she intended for the boyfriend to care for the children while she worked.  In July, D.W. reported that she was no longer living with her boyfriend.  She first said that this was because he had moved out of state, but later said that the reason was infidelity.  She denied that he had physically abused her.

            After the court terminated reunification services, D.W. did not attend any more individual therapy sessions.  By the time she filed her section 388 petition, she still had not completed a domestic violence program.^[2]  In light of the genesis of this case -- serious and repeated domestic violence -- D.W.'s claim that she had attended four domestic violence classes does not constitute a prima facie showing that circumstances had changed.  Nor does the allegation that D.W. was " working at Pacific Monarch" constitute a prima facie showing of changed circumstances.

            In late 2005, D.W. did not have a job.   In February 1, 2006, the social worker reported that D.W. had an appointment on February 2 with a military recruiter.  On February 9, the court terminated services.  In March, D.W. said that she had two jobs, one of which was with a telemarketing company.  In July, just two weeks before she filed her section 388 petition, she said that she had two telemarketing jobs.  She also said that she had been fired by Food4Less, where she had been working since May.  Whether " working at Pacific Monarch" was a reference to a new job or to one of her two pre-existing jobs, D.W. had an unstable employment history.

            Further, the court did not abuse its discretion by determining that D.W. had failed to make a prima facie showing that reinstating reunification services would be in the children's best interests.  The petition alleged that reinstating services would be in the children's best interests simply because D.W. was their mother and loved them.  " The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388."   (In re Justice P. (2004) 123 Cal.App.4th 181, 192.)  Although D.W. undoubtedly loved her children, her visitation was inconsistent, both before and after  services were terminated.  During visits in the latter part of the case, D.W sometimes talked on the telephone rather than interact with her children, or tried to sleep on the caregivers' couch.  Although, at her request, she and Clarence participated in a bonding study in July 2006, the results of the study were never presented to the court.

            The court did not abuse its discretion by summarily denying the section 388 petition.

II.

The Beneficial Relationship Exception

            Section 366.26, subdivision (c)(1) requires termination of parental rights upon clear and convincing evidence of adoptability, but provides an exception if " [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)(A).)  A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.)  " [T]he 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."   (Ibid.)  The existence of a beneficial relationship is determined, in part, by " [t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs .  .  .  ."   (Id. at p. 576.)  The parent has the burden of proof.  (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)  We apply the substantial evidence test to the juvenile court's determination as to whether the beneficial relationship exception applies.  (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

            Examining the evidence in the light most favorable to the judgment, we conclude that there is substantial evidence to support the juvenile court's implied conclusion that D.W. did not maintain regular visitation and contact or have a beneficial relationship with the children.

            D.W.'s visits were not consistent during the course of this case.  She never progressed to unsupervised visitation.  Generally, visits went well, and the children appeared to enjoy seeing D.W.  However, as noted above, D.W. sometimes did not focus on the children during visits.  Clarence did not respond to her attempts to set limits although he did respond to the relative caregiver.  D.W. admitted that James did not usually let her feed him, preferring that the caregiver do so.

            At the time of the section 366.26 hearing, Clarence was three and one-half years old and James was one and one-half years old.  Clarence had been in D.W.'s custody for two years two months and James had been in her custody for less than three months.  The children were attached to their relative caregivers, with whom they had lived for four months, and who were committed to providing a safe, stable, and permanent home.

            The juvenile court did not err in determining that the section 366.26, subdivision (c)(1)(A) exception to adoption did not apply.

DISPOSITION

            Judgment affirmed.

AARON, J.

WE CONCUR:

                          McCONNELL, P. J.

                                McDONALD, J.

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

^[2]           We liberally construe the allegation in D.W.'s petition that she had attended four domestic violence classes to mean that she attended four classes after services were terminated, in addition to the five sessions she attended before services were terminated.