In re Gabriel B.

Filed 3/15/07 In re Gabriel B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

Tiffany B. appeals a judgment of the juvenile court terminating her parental rights to her minor children Gabriel B., Charles G. and Anthony G. (collectively the minors) under Welfare and Institutions Code section 366.26.^[1] Tiffany contends the court erred by summarily denying her section 388 petition for modification. She also 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. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2005, five-year-old Gabriel, two-year-old Charles and one-year-old Anthony became dependents of the juvenile court under section 300, subdivision (b) and were removed from parental custody based on findings their parents, Tiffany and Magdaleno G., abused drugs and exposed them to domestic violence. Tiffany had a history of suicide attempts, self-mutilation and had used alcohol, cocaine, marijuana and crystal methamphetamine for the past 17 years. The court placed the minors with the maternal grandmother and ordered Tiffany to comply with her case plan.

During the next six months, Tiffany did not participate in services or maintain contact with the social worker. The maternal grandmother drove the minors to visit Tiffany in Corona, California, where she now lived. According to the maternal grandmother, the minors looked forward to the visits, which occurred every two weeks until Tiffany's whereabouts became unknown, resulting in sporadic visits. At a six-month review hearing, the court terminated reunification services and set a section 366.26 selection and implementation hearing.

Tiffany moved into a sober living facility and resumed visits with the minors. The minors were excited to see Tiffany and called out, "Mommy, Mommy." Tiffany played appropriately with the minors, was affectionate with them and attentive to their needs. Anthony cried at the end of one visit as Tiffany put him in the car, but he calmed down once the car drove away.

The social worker assessed the minors as adoptable because they were young, healthy, personable and developing appropriately. The maternal grandmother, who was the legal guardian of Tiffany's two older children, was committed to adopting the minors. The minors had lived with the maternal grandmother for more than a year and had developed a parent-child relationship with her. The maternal grandmother was able to meet the minors' physical, emotional and medical needs, and she could provide them a home with their half-siblings, Jennifer and Omar. If the maternal grandmother were unable to adopt, there were three approved adoptive families willing to adopt all three minors.

Tiffany was in an 18-month residential treatment program, where the minors could not live. She had not used drugs or alcohol for six weeks. The social worker reported Tiffany and Magdaleno recently had another domestic violence incident. In the social worker's opinion, Tiffany was not a consistent parental figure in the minors' lives because of her substance abuse and violent relationship with Magdaleno. Although the minors looked forward to Tiffany's visits, Tiffany could not meet their needs. The social worker recommended the court terminate parental rights and order adoption as the minors' permanent plans.

According to an addendum report, the social worker observed four more visits between Tiffany and the minors. Tiffany was affectionate with the minors and they were comfortable with her. Anthony cried when one visit ended, but stopped crying by the time the car left the parking lot. The social worker noted that although Tiffany loved her children and appeared to have parenting skills, she had a lengthy history of substance abuse, mental instability and domestic violence. Her three-month sobriety was relatively brief compared to her 17 years of drug use. By recently entering a drug treatment program, she was just beginning to address one of many protective issues and could not offer the minors stability or security. Moreover, her minimal progress was thwarted when she was terminated from her drug treatment program. The social worker believed Tiffany's chaotic and unresolved past precluded her from establishing a parent-child relationship with the minors, who would benefit more from adoption than from maintaining their relationship with Tiffany.

Robert Kelin, Psy.D., conducted a bonding study between Tiffany and the minors. Dr. Kelin concluded the minors had a "moderately strong" bond with Tiffany. The minors seemed comfortable with her and accepted her role as an authority. They listened to her directives and turned to her for advice. The minors sought comfort from Tiffany, even with the maternal grandmother present. However, they did not show any strong reaction to being separated from Tiffany. Dr. Kelin believed there was "some potential" for harm to the minors if their relationship with Tiffany were permanently severed.

Tiffany filed a section 388 petition for modification, seeking six more months of services. Tiffany alleged her circumstances had changed because she was no longer in a residential drug treatment facility and was waiting to be admitted to another treatment program. She further alleged Dr. Kelin's study showed the minors were bonded to her and it was in their best interests to reunify with her in the future. The court summarily denied the petition.

At a contested selection and implementation hearing, the court received into evidence Agency's various reports and Dr. Kelin's bonding study. No witnesses testified. After hearing argument of counsel, the court found the minors were adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.

DISCUSSION

I

Tiffany contends the court erred by summarily denying her section 388 modification petition. She asserts she made a prima facie showing her circumstances had changed and the proposed modification -- six more months of services -- 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,^[2]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 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, Tiffany alleged she had been in a residential faith-based drug treatment program (Victory Outreach) for several months and continued to interact with members of the church while waiting to be admitted to another treatment program. However, the evidence showed Tiffany was no longer in Victory Outreach because she violated program rules. This unfavorable change of circumstance was not the type contemplated by the Legislature when it enacted section 388, providing parents with an " 'escape mechanism' " by which to revive the reunification issue. (In re Marilyn H., supra, 5 Cal.4th at p. 309.)^[3]

Further, despite having received referrals for services, Tiffany had not participated in counseling or parenting classes, nor had she addressed her substance abuse problem or other protective issues, including domestic violence and her mental health. Given Tiffany's 17-year history of substance abuse, her recent sobriety was at most a "changing" rather than "changed" 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 if 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.) Tiffany made no prima facie showing that offering her six more months of services was in the minors' best interests.

At the time of the hearing on Tiffany'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.) Any delay in ensuring the minors the stability they deserved was not in their best interests. Because the facts alleged would not have sustained a favorable decision on the modification petition, Tiffany 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

Tiffany 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 she maintained regular visitation and contact with the minors who would benefit from continuing their well-established bond with her.

A

We review the judgment for substantial evidence. (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 conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) The parent has the burden of showing 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 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 termination of parental rights would be detrimental to the child under one of five specified exceptions. ( 366.26, subd. (c)(1)(A)-(E); In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A) is 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.) "In other words, if 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.)

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., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show 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

Here, Tiffany had six months of sporadic visits and six months of regular visits with the minors. Even were we to view Tiffany's visitation as consistent, Tiffany did not meet her burden of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A).

The evidence showed the minors were excited to see Tiffany and enjoyed playing with her during visits. However, they had no adverse reaction to being separated from her. Even when two-year-old Anthony cried at the end of several visits, he was able to be consoled. Tiffany loved her children, was affectionate and appropriate with them, but did not occupy a parental role in their lives and was unable to meet their basic needs because of ongoing issues of substance abuse, mental instability and domestic violence. Instead, the minors look to the maternal grandmother to meet their needs. Although Dr. Kelin believed the minors had a "moderately strong" bond with Tiffany, there was no showing the minors would be "greatly harmed" if they no longer had contact with her. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) To require a parent show only potential or "some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law." (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.)

Further, Tiffany did not show maintaining her relationship with the minors outweighed the benefits of adoption for them. The minors are in a stable, nurturing environment with their maternal grandmother who is committed to adopting them and who can ensure their ongoing relationship with their older siblings. 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., supra, 76 Cal.App.4th at p. 854.) Substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply to preclude terminating Tiffany's parental rights.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] Rule references are to the California Rules of Court.

^[3] Tiffany claims this was a positive change because she was no longer under the restrictions of the residential treatment program where the minors could not reside. However, even viewing Tiffany's allegation this way, we cannot conclude the change was sufficient to warrant a hearing.