In re Patrick F.

Filed 3/27/07 In re Patrick F. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed.

Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant D.G.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Carl S.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Senior Deputy County Counsel, for Plaintiff and Respondent.

_________________________

INTRODUCTION

D.G. and Carl S. appeal from an order denying D.G.s modification petition under Welfare and Institutions Code section 388[1]and terminating D.G.s and Carl S.s parental rights as to Patrick F. under section 366.26. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This is the fifth appellate proceeding involving D.G., and the second involving Carl S. In December 1997, the Department of Children and Family Services (DCFS) filed a petition under section 300 as to then five-year-old Thomas F., Jr., four-year-old V.F., and three-year-old Darrell F., the children of D.G. and Thomas F. It alleged the children were at risk due to their parents drug and alcohol abuse. A subsequent petition under section 342 alleged sexual abuse. The first proceeding before this court was an appeal by Thomas F. from an order adjudicating the section 342 subsequent petition. This court affirmed the order. (In re Darrell F. (Feb. 15, 2000, B133140) [nonpub. opn.].) The second proceeding was a petition by Thomas F. under former rule 39.1B of the California Rules of Court (now rule 8.452), seeking an extraordinary writ vacating an order setting a section 366.26 hearing to terminate parental rights. This court denied the petition. (Thomas F. v. Superior Court (Mar. 30, 2000, B137686) [nopub. opn.].)[2]

Patrick F., originally identified as Baby Boy G., was born in late 2004. DCFS filed a section 300 petition as to Patrick F. on December 7, 2004, alleging that Patrick was born with cocaine and amphetamine in his system, D.G. had a long history of substance abuse, and Patricks three older siblings were dependent children of the juvenile court. At the January 25, 2005 jurisdiction/disposition hearing, the juvenile court sustained the petition, denied reunification services and set a section 366.26 hearing to terminate parental rights. In the third proceeding, D.G. sought an extraordinary writ to set aside the order setting the section 366.26 hearing. This court denied the petition. (D.G. v. Superior Court (Apr. 28, 2005, B180770) [nonpub. opn.].)

Additional proceedings were held by the juvenile court in an attempt to identify Patricks father. A marriage certificate identified Carl S. as D.G.s husband. Carl S. was eventually located, but DNA testing revealed that he was not Patricks father. He sought presumed father status, but the juvenile court denied it. In the fourth proceeding, we affirmed the courts order. (In re Patrick F. (Nov. 30, 2006, B189995) [nonpub. opn.].)

In the June 30, 2005 six-month status review report, DCFS reported that Patrick was doing well in his foster home. D.G. had been visiting him regularly. She was in mental health and drug rehabilitation programs and had been testing negative for drugs. She also completed a parenting class.

At the six-month hearing, the juvenile court, while stating that the section 366.26 hearing remained set for October 18, 2005, granted DCFS discretion to liberalize visitation with Patrick for D.G.

On July 1, 2005, D.G. filed a section 388 petition for modification, seeking to modify the juvenile courts January 28, 2005 order denying her reunification services. She requested that Patrick be released to her or that she receive family reunification services. As new circumstances, D.G. alleged that she was in appropriate counseling, she had been visiting with Patrick and they had bonded.

In support of her petition, D.G. submitted a letter from her counselor at the Asian American Drug Abuse Program (AADAP) stating that D.G. had been enrolled in the program since September 20, 2004. The counselor was aware of D.G.s past inability to maintain sobriety and care for her children. She believed, however, that D.G. wants to be able to grow in her recovery with her son and we will be able to monitor her accomplishments daily if he is allowed to come home with her into the Satellite House sober living home for parenting and post partum mothers.

In its report, DCFS noted that it had received a letter from the service coordinator at Portals, a mental health facility, who stated that D.G. had demonstrated a willingness to be active in following through with her appointments and treatment plan. D.G. demonstrated the motivation to improve her life and the lives of her children. Additionally, D.G. had participated in random drug testing since December 2004 and had no positive or missed tests.

DCFS acknowledged the steps D.G. had made towards living a sober lifestyle. However [D.G.], who admits to having a 19-year drug history has only been sober since December 2004 as a result of residing in a residential treatment facility program. DCFS took the position that it was premature at this time to recommend placement of [Patrick] with [D.G.] due to the short amount of time that [she] has been sober. DCFS also pointed out that D.G. was in this same facility when she was receiving family reunification services for her three older children in 1998. [She] was granted unmonitored and overnight visits with these children after she participated in this program and had been sober for approximately 8 months. Subsequently, [she] relapsed while still residing in this facility and was never able to complete a drug program and her family reunification services were terminated. [She] never regained custody of these children and never again had unmonitored visits with these children. DCFS could therefore only recommend that D.G. receive three hours of unmonitored visits with Patrick per week, and that adoption be selected as the permanent plan for Patrick.

In a subsequent report prepared for the section 366.26 hearing on October 18, 2005, DCFS reported that Patrick had been placed with his prospective adoptive family since May 16, 2005, where he was doing well. He had been having three-hour unmonitored visitation each week with D.G. DCFS continued to recommend that Patrick be freed for adoption.

On October 18, 2005, D.G. filed a supplemental section 388 petition. The purpose of the petition was simply to add newer letters from the various programs in which D.G. was participating. Again, they contained positive reports on her progress. DCFS ordered the hearing on the section 388 petition continued, as it attempted to identify Patricks father.

On December 6, 2005, DCFS reported that D.G. no longer was living at the AADAP residential facility but had moved back to her apartment. Additionally, Carl S. had been located. He had a history of substance abuse, and D.G. was still in contact with him. DCFS believed that for these reasons, Patrick would be at risk if placed with D.G. or even allowed to visit with her at that location. For that reason, it recommended visitation take place at the AADAP facility.

D.G. testified at the December 6, 2005 hearing. Thereafter, the juvenile court granted her section 388 petition in part. It permitted her to have weekly, day-long visits with Patrick provided she continued to comply with her case plan and drug tested. Additionally, the visits were not to take place at her apartment until it was evaluated and approved by DCFS.

Carl S. appeared at the January 31, 2006 hearing. The juvenile court ordered DNA testing to determine whether he was Patricks biological father. On March 14, 2006, DCFS reported that the DNA testing excluded Carl S. as Patricks biological father. The court found that Carl S. was not Patricks biological father, and Carl S. requested presumed father status based upon his marriage to D.G.

At the March 24, 2006 paternity hearing, both Carl S. and D.G. testified. The juvenile court found Carl S. was not Patricks presumed father by marriage, and it was not in Patricks best interest for the court to find Carl S. to be his presumed father. Among the reasons for the finding were the facts Carl S. had not had any visitation or contact with Patrick, he had not asserted paternity and did not even believe he was Patricks father, and he had made an effort to avoid parental responsibility for over a year.

In a report prepared for the May 31, 2006 section 366.26 permanent plan hearing, DCFS reported that Patrick had been in his prospective adoptive home for a year, he was doing well there, and his foster parents application for adoption had been approved. DCFS recommended that D.G.s parental rights be terminated and that Patrick be freed for adoption.

At the hearing, the juvenile court appointed an expert to examine the strengths of the bonds between Patrick and both D.G. and Patricks foster parents. It continued the hearing on both the permanent plan and D.s G.s section 388 petition.

Ronald R. Fairbanks, a forensic psychologist, reported that D.G. appeared to be doing well in her substance abuse treatment program and she appeared to be mentally stable on her medications. Dr. Fairbanks believed that if she continued her treatment and stayed in the substance abuse treatment program, she would be capable of caring for Patrick. Patrick had a positive relationship with her and seemed comfortable with her. However, when tired or needing reassurance, Patrick sought out his foster mother. He appeared to be more attached to his foster parents and viewed them as his parents.

The hearing took place on August 1, 2006. The court first addressed the section 388 petition. While the court found D.G.s progress commendable, it found that she had not shown it was in Patricks best interest to be returned to her. Additionally, since the case had been pending for more than 18 months and Patricks primary attachment was to his foster parents, the court did not find it was in Patricks best interest to grant D.G. reunification services. It therefore denied the petition.

The court then proceeded to the section 366.26 hearing. Patricks older half-siblings, Thomas, V. and Darrell, spoke to the court regarding their visits with him and their mother and their belief that Patrick should be returned to their mother. Counsel for DCFS, D.G. and Patrick argued their positions.

The court first found that the sibling relationship exception to termination of parental rights ( 366.26, subd. (c)(1)(E)), did not apply. Thomas, V. and Darrell lived with their father, had never lived with Patrick, and shared no common life experiences with Patrick that would outweigh the benefits of adoption.

The court then found the section 366.26, subdivision (c)(1)(A), parental relationship exception to termination of parental rights did not apply. The court noted that even though D.G. had been having regular contact and visitation with Patrick for the past eight months, Patrick did not view her in a primary parental role. Additionally, although D.G. was doing well at that time, it did not make sense to leave Patrick in limbo when he could be placed in a permanent adoptive home. The court found the benefits of such permanence outweighed maintenance of the relationship he had with D.G.

The court found by clear and convincing evidence that Patrick was adoptable and returning him to D.G. would be detrimental. It terminated her parental rights and, due to the existence of her marriage to Carl S., terminated his as well, although it previously had determined that he was not Patricks father.

DISCUSSION

Denial of D.G.s Section 388 Petition

Section 388 permits a party to petition the juvenile court to change its prior orders based upon a change of circumstances. (In re Amber M. (2002) 103 Cal.App.4th 681, 685; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The party seeking a change must demonstrate both that a change of circumstances exists and that the proposed change of court order is in the childs best interests. (Casey D., supra, at p. 47.) We review the courts rulings on the petitions for abuse of discretion. (Amber M., supra, at p. 685; Casey D., supra, at p. 47.) Discretion is abused when the courts ruling is arbitrary or capricious or exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Rarely does the denial of a section 388 petition require reversal. (Amber M., supra, at pp. 685-686.)

In determining whether a section 388 petition should be granted, the court examines the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. (In re Amber M., supra, 103 Cal.App.4th at p. 685.) The court also must bear in mind that once the reunification period is over, the focus of the proceedings shifts from the parents desire for reunification to the childs need for permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; Amber M., supra, at p. 685.) When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. [Citation.] That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. [Citation.] (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)

Here, the juvenile court clearly considered the relevant factors. It considered the strengths of the bonds between Patrick and D.G. and Patrick and his foster parents. It considered the length of the proceedings and the time Patrick had been with his foster parents. It also considered D.G.s change of circumstances, i.e., her progress in a substance abuse treatment program. It considered this progress in the context of her long-term history of substance abuse and her failure to resolve the problem despite her previous participation in substance abuse programs and the loss of custody of her three older children. Under these circumstances, the juvenile courts denial of the section 388 petition was not arbitrary or capricious. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) The court did not abuse its discretion in finding that D.G. failed to show changed circumstances such that it would be in Patricks best interest to return him to her or to provide her with reunification services in an attempt to facilitate eventual reunification.

Termination of Parental Rights

On appeal from an order pursuant to section 366.26 terminating parental rights, the question is whether the juvenile court abused its discretion in deciding to terminate parental rights. (In re Jessie G. (1997) 58 Cal.App.4th 1, 9; In re Jose V. (1996) 50 Cal.App.4th 1792, 1801.) The courts decision will be upheld if supported by substantial evidence. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 577; Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 250.)

Once the proceedings reach a selection and implementation hearing, the legislative preference for adoption over legal guardianship or long-term foster care must be heeded unless, under one of the enumerated statutory exceptions, termination of parental rights would be detrimental to the child. ( 366.26, subd. (c)(1) & (4).) D.G. contends that she has established the existence of one of these exceptions: She has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Id., subd. (c)(1)(A).)

As discussed above, once the period for reunification is over, . . . the goal of the proceedings changes from reunifying the family to locating a permanent home for the child apart from the parent. [Citation.] The permanency planning hearing aims to end the uncertainty of foster care and allow the dependent child to form a long-lasting emotional attachment to a permanent caretaker. [Citation.] The abiding principle at the permanency planning hearing is the welfare and best interests of the child. [Citation.] (In re Jason E. (1997) 53 Cal.App.4th 1540, 1548.) As a consequence, regular visitation alone does not meet the requirements of the parental relationship exception to the preference for adoption. What is necessary is a strong and substantial relationship.

The parent seeking to avoid adoption bears the burden of demonstrating that there exists a significant, positive, emotional attachment from child to parent. (In re Jason E., supra, 53 Cal.App.4th at p. 1548.) As noted in In re Beatrice M. (1994) 29 Cal.App.4th 1411, frequent and loving contact is not sufficient to establish the benefit from a continuing relationship . . . . No matter how loving and frequent the[] contact, the person invoking the exception must have occupied a parental role in relation to the child. (At pp. 1418-1419; accord, Jason E., supra, at pp. 1548-1549.)

In other words, the parent must show that severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . . [] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] (In re Autumn H., supra, 27 Cal.App.4th 567, 575; accord, In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) Among the factors the court examines in determining whether the exception applies are [t]he age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs. (Autumn H., supra, at pp. 575-576.)

Again, the juvenile court considered the relevant factors. It considered the eight months in which D.G. had been visiting with Patrick on a regular basis and the bond between them. This had to be weighed, however, against the facts that Patrick had never lived with her, that he had lived with his foster parents for more than a year and that he viewed them as his parents.

The evidence here showed that no beneficial child/parent relationship existed between Patrick and D.G., in that she never occupied a parental role in his life. (In re Jason E., supra, 53 Cal.App.4th at pp. 1548-1549; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.) While the evidence showed that she had recently begun developing a relationship with Patrick, the relationship was one of being a friendly visitor or friendly nonparent relative such as an uncle. (Jason E., supra, at p. 1548; Beatrice M., supra, at pp. 1418-1419). This was insufficient to invoke the exception to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A). (Jason E., supra, at pp. 1548-1549; Beatrice M., supra, at pp. 1418-1419.) Accordingly, substantial evidence supports the trial courts finding the exception did not exist and its decision to terminate D.G.s parental rights. (In re Autumn H., supra, 27 Cal.App.4th at p. 577.)

Carl S.s only claim with respect to the termination of his parental rights is that the juvenile court erred in denying him presumed father status and therefore in terminating his parental rights. As we explained in In re Patrick F., supra, (B189995), the juvenile court did not err in denying him presumed father status. His claim therefore is without merit.

The orders are affirmed.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

VOGEL, J.

MALLANO, J.

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

[2] The three older children eventually were placed with Thomas F., in November 2004. On May 31, 2005, he was granted sole legal and physical custody of the children, with monitored visitation for D.G., and jurisdiction over the children was terminated.