In re Michelle M.

Filed 3/9/07 In re Michelle M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County,

Stephen Marpet, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

Michael M., father, appeals the summary denial of his Welfare and Institutions Code section 388 petition[1]and the termination of his parental rights in accordance with section 366.26. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

The subject of this dependency proceeding is Michelle M., born in February 2004. After prenatal exposure to methamphetamines, Michelle tested positive for the drug at birth. Amber B., mother, admitted to using the drug during her pregnancy. The Department of Child and Family Services (DCFS) did not detain Michelle, but recommended that both parents participate in random drug testing, parenting courses and a substance abuse program. Father did not comply with the recommendations. Mother enrolled in a drug program but quit prematurely.

In August 2004, mother admitted she was currently using methamphetamines with father. DCFS reported that father and mother engaged in verbal conflicts, and that on one occasion, father kicked mothers car while Michelle was inside. DCFS filed a section 300 petition and Michelle was detained with her maternal grandparents. On October 27, 2004, the parties entered into a mediated agreement and the court sustained an amended section 300 petition. The court granted monitored visitation to the parents and ordered reunification services. Both parents were to participate in group and individual counseling, parenting classes, a substance abuse program, and random drug testing.

Fathers first two drug tests were positive for methamphetamines and he periodically missed tests. Father visited or called Michelle every other week. In March 2005, father enrolled in a comprehensive substance abuse and counseling program at My Fathers House International Inc. At the six-month review hearing on May 3, 2005, the court found that returning Michelle to her parents custody would create a substantial risk of detriment, but ordered continued reunification services because both parents had partially complied with their case plans.

Father frequently missed or was late to his scheduled visits with Michelle. On the days he did visit, the grandparents noted that Michelle often did not want to be left alone with him. On one visit, Michelle cried and took 45 minutes to warm up to him. Father also continued to miss drug tests and failed to comply with the on demand nature of random testing. The social worker contacted father and asked him to provide her with proof of enrollment and a progress report from the program he was attending; he failed to do so for three months. Father completed the program at My Fathers House, but later learned it was not a DCFS-approved program. Had he forwarded the program information to the social worker when she requested it, he would have learned that the program was not approved much sooner.

Meanwhile, the social worker received a call from mothers ex-boyfriend, claiming that both parents were using a device called the whizzinator to provide clean drug tests. Mother admitted that she and father used the device. At their 12-month hearing on October 25, 2005, the court ordered DCFS to prepare a report for a future hearing where it would determine whether the parents were entitled to further reunification services.

A month later, DCFS submitted its report, recommending that no further reunification services be provided. Although father was visiting Michelle with more regularity, she was still uncomfortable when left alone with him. He continued to miss drug tests. Father enrolled in a comprehensive DCFS-approved program at Tarzana Treatment Centers, but attended the program only one of the required three days a week. He failed to attend any parenting classes or counseling. Accordingly, on November 29, 2005, the court terminated reunification services and set the matter for a section 366.26 hearing to select and implement a permanent plan for Michelle.

The parents filed a writ petition, requesting that the setting of the section 366.26 hearing be vacated for lack of notice. The petition was denied. On March 28, 2006, father filed a section 388 petition for modification, claiming that he was in substantial or full compliance with his case plan and that returning Michelle to his care would be in her best interest. Until then, he requested unmonitored visitation. The petition was denied without a hearing. On May 9, 2006, at the section 366.26 hearing, the court found Michelle adoptable by her grandparents and terminated parental rights. Father appeals the summary denial of the section 388 petition and the termination of his parental rights.

DISCUSSION

I

Father argues the dependency court violated his due process rights and abused its discretion in denying his section 388 petition without a hearing. Section 388 states:

Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . 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 . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [] . . . [] If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . .  

Thus, [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. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A parent must make a prima facie showing of both elements to trigger a hearing. (Ibid.) In 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, 189.) A section 388 petition must be liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The summary denial of a section 388 petition is reviewed for abuse of discretion, and the due process claim is resolved as a matter of law. (Id. at p. 460.)

First, father notes the courts oral ruling was inconsistent with its written rulings. In its colloquy with counsel, the court stated that it was denying the section 388 petition without a hearing because [t]heres absolutely no facts to lead this court to believe there is a change of circumstances, and father has not done squat. The minute order for this proceeding states that the petition was denied because Michelles best interests would not be promoted by the proposed change. On the petition, the court checked the boxes stating that father failed to state facts to support the allegations, state new evidence or a change of circumstances or show how the requested modification will promote Michelles best interests. At the bottom of the petition, the court wrote, No change of circumstance [father] has not completed the case plan.

These rulings can and should be harmonized. (See In re Byron B. (2004) 119 Cal.App.4th 1013, 1018.) Apparently, the court believed that father had not made a showing of changed circumstances and that the proposed change was not in Michelles best interests. Nevertheless, we review the correctness of the ruling, not the courts rationale. (People v. Zapien (1993) 4 Cal.4th 929, 976.)

Father does not argue that section 388 is itself unconstitutional. Instead, he claims that because he made the requisite threshold showing required by section 388, the summary denial of his petition violated his due process rights. Thus, the question on appeal is whether father made a prima facie showing of: (1) new evidence or changed circumstances, and (2) that Michelles best interests would be promoted by the proposed change. As we next discuss, father did not establish either of these elements. Accordingly, we find no constitutional error or abuse of discretion.

Father argues that because he offered explanations for his perceived noncompliance with the case plan, he established a prima facie showing of changed circumstances and new evidence. Among other things, fathers section 388 petition stated that he: (1) had not used drugs in the past 2 years and would never use again; (2) never used the whizzinator, or a similar device, to falsify drug tests; (3) only tested for drugs on Fridays because either he was called in on Fridays or because it was pre-approved; (4) deeply regretted kicking mothers car, which was an isolated incident; (5) believed the comprehensive program he attended was DCFS-approved because a social worker told his brother that it would be fine; (6) only visited Michelle twice a week because that was all that was allowed; and (7) is strongly bonded with Michelle. In their accompanying declarations, fathers mother and brother claim that father has turned his life around and is committed to being a good and reliable father. They also contend that fathers relationship with Michelle is close, loving and strong.

Father did not present a prima facie showing of new evidence or changed circumstances. 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., supra, 77 Cal.App.4th at p. 806.) Many of the explanations given by father in his section 388 petition already had been presented to the court. For example, at the November 29, 2005 hearing, father testified that he did not know what a whizzinator was and explained why he only tested for drugs on Fridays. Past DCFS reports stated that father denied any domestic violence beyond the isolated incident when he kicked mothers car. The court also was aware that father was only scheduled to visit Michelle twice a week.

Additionally, since the hearing on November 29, 2005, where the court terminated reunification services and set the section 366.26 hearing, father missed nine drug tests. Although he explained why he believed the program at My Fathers House was DCFS-approved, he did not provide any new information regarding his participation at Tarzana Treatment Centers. For example, father did not show that he was now attending three days a week as required. He also failed to provide evidence that he was attending parenting classes or counseling sessions. DCFS reported that father was late to his visits with Michelle and that she was still uncomfortable being alone with him. Father states that he did not comply with the case plan after the termination of reunification services because neither his attorney nor the social worker told him to do so. Although his petition may shed light on why father believed he was in compliance, it does not constitute a prima facie showing of new evidence or changed circumstances.

Father also failed to make a prima facie showing that returning Michelle to his custody and providing him unmonitored visitation until then would promote her best interests. After the termination of reunification services, a parents interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. (In re Angel B., supra, 97 Cal.App.4th at p. 464.) This presumption is strengthened when permanent placement is leading to adoption. (Ibid.)

By the time father filed his section 388 petition, reunification services were terminated and Michelle had been in her grandparents care since she was six months old. DCFS reported that Michelle was comfortable in their home and appeared to be happy. Her maternal grandparents wanted to adopt her and were able to provide for her medical, physical, emotional, and educational needs as they had done for the past year and a half. Michelle still was uncomfortable spending time with father unless maternal grandmother was present. And although father had been visiting Michelle with more regularity, he was not testing for drugs and did not provide any evidence that he was participating in parenting or substance abuse classes. Thus, even if the facts alleged in fathers section 388 petition were true, he failed to demonstrate that unmonitored visitation and the return of Michelle to his custody would be in her best interests. Accordingly, we find no error in the summary denial of the section 388 petition.

II

Father also argues the court erred in terminating parental rights because he established an exception to termination under section 366.26, subdivision (c)(1)(A). Once a juvenile court determines that a child is likely to be adopted, the court must terminate parental rights unless an enumerated exception applies. ( 366.26, subd. (c)(1).) Section 366.26, subdivision (c)(1)(A) provides for an exception where: (1) the parent maintains regular visitation and contact with the child, and (2) the child would benefit from continuing the relationship with the parent.

A courts order terminating parental rights and ordering adoption as the permanent plan is reviewed for substantial evidence. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; cf. In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [holding that the standard of review is abuse of discretion but noting that the practical differences between the two standards of review are not significant].) [W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

Although the kind of parent/child relationship which must exist in order to trigger the application of section 366.26, subdivision (c)(1)(A) is not defined in the statute, it must be sufficiently strong that the child would suffer detriment from its termination. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) A parent must show a parent/child relationship with the child, rather than just a friendship. (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) The court must balance 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. . . .  [] Interaction between natural parent and child will always confer some incidental benefit to the child. . . .  The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Father correctly asserts that the benefit to Michelle must be considered in the context of the limited visitation he was allowed. (See In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) Father was scheduled to visit Michelle twice a week, for two hours at a time. During the visits, he played and watched videotapes with her. He did not feed her or tend to any illnesses, but he did change her diapers. When fathers brother came into town, the grandparents allowed father to take Michelle for two full-day visits. During those visits, father took her to the zoo, a toy store and a childrens restaurant. Both father and his brother describe fathers relationship with Michelle as close and loving.

Nevertheless, father did not show that the relationship promotes the well-being of [Michelle] to such a degree as to outweigh the well-being [she] would gain in a permanent home with [her adoptive grandparents]. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Michelle calls father daddy, but this is not dispositive. She calls grandmother mommy and grandfather papa. Michelle has lived with the grandparents for most of her young life, since she was six months old. During that time, father frequently missed or was late to visits, and never advanced beyond monitored visitation. Although father has now begun to visit Michelle regularly, the evidence shows that she has come to view her grandparents, particularly grandmother, as her parental figure. It is grandmother who she turns to for comfort and security. Michelle becomes uneasy when she does not see grandmother during her visits with father, and needs to be reassured that grandmother is nearby. And father admits that sometimes it takes Michelle a while to warm up to him.

Father did not meet his burden of proving termination would be detrimental to Michelle. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) [I]t is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (Ibid.) The finding that Michelle would not suffer detriment by terminating fathers parental rights is supported by substantial evidence. The court did not err in determining that the exception in section 366.26, subdivision (c)(1)(A) did not apply.

DISPOSITION

The orders denying the section 388 petition for modification and terminating parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J. MANELLA, J.

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