In re Angelina M.

In re Angelina M



In re Angelina M.









Filed 1/25/13 In re Angelina M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



In re ANGELINA M., a Person Coming Under the Juvenile Court Law.



SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

J.A. et al.,

Defendants and Appellants.

D062397


(Super. Ct. No. J517675)


APPEALS from findings and orders of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed in part; dismissed in part.

J.A. and L.M. appeal orders entered at a permanency plan and selection hearing held under Welfare and Institutions Code section 366.26.[1] J.A. contends the court erred when it found that the beneficial parent/child relationship exception did not apply and terminated parental rights. He also appeals an order denying a hearing on his request to place Angelina in the care of her paternal grandmother. L.M. asks this court to exercise its discretion to review the record for error pursuant to In re Sade C. (1996) 13 Cal.4th 952 (Sade C.) and Penson v. Ohio (1988) 488 U.S. 75, 88 (Penson). Upon review of the issues raised in J.A.'s appeal, we affirm the orders. We dismiss L.M.'s appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Angelina M. was born in June 2009 to L.M. (mother) and J.A. (father), who were then ages 16 and 14 years old, respectively. In November 2009, L.M. and Angelina were detained in protective custody after they were found to be without appropriate care and supervision. The San Diego County Health and Human Services Agency (the Agency) filed a section 300 petition on Angelina's behalf alleging she had been exposed to a violent confrontation between J.A. and L.M., and L.M. did not provide Angelina with necessary medical treatment for a heart murmur.
At the jurisdictional and dispositional hearing on January 14, 2010, the court sustained the section 300 petition and placed Angelina with her mother in foster care under a plan of family maintenance services. The court permitted J.A. to have supervised visits with Angelina. J.A. visited Angelina in January and again during a dependency court hearing on July 12.
J.A. was a ward of the court under section 602. He was on probation for burglary. J.A. was placed in a juvenile facility in May, and from July to October 2010, for violating the terms of his probation. Under the terms of his confinement, he was not permitted to have visits with Angelina.
In August, L.M. was involuntarily hospitalized under section 5150 after she threatened to flee the foster home with Angelina, brandished a knife, broke a window and threatened to burn down the foster home. The Agency filed a section 387 petition to remove Angelina from L.M.'s care. On September 1, the Agency placed Angelina in a new foster home.
J.A. was placed in a juvenile facility for probation violations from January to May 2011, and was not allowed to have visits with Angelina. The social worker sent J.A. a parenting packet, which he completed and returned. J.A. voluntarily completed classes on parenting, dating violence, work readiness, thinking for a change, teen relationship violence prevention and substance abuse education. His status as a section 602 ward was terminated in June and he began visiting Angelina every week.
In July, L.M. gave birth to another child, who remained in her care under a voluntary services plan. In October, the Agency initiated unsupervised visits between L.M. and Angelina, and planned to reunify the family.
The Agency changed its recommendation from family reunification to termination of parental rights after it learned that L.M. and J.A. had concealed their ongoing relationship. L.M.'s compliance with services was sporadic, and she was terminated from several court-ordered programs. She dropped out of school. In November, L.M. and her baby moved in with J.A., who lived with his mother (the paternal grandmother or grandmother) and siblings.
In January 2012, approximately one month before the 18-month hearing date, the court denied J.A.'s request for court-ordered services, terminated L.M.'s services and set a section 366.26 hearing. Angelina's paternal grandmother, who had regularly visited Angelina with J.A., asked the Agency to place Angelina in her care.
In February, L.M. became pregnant with J.A.'s child. In May, the Agency substantiated a child abuse referral for an incident of domestic violence between L.M. and J.A. in the presence of L.M.'s baby. L.M. ended their relationship and filed for a restraining order against J.A.
In May, the court continued the section 366.26 hearing to allow the Agency to address placement issues and conduct a home study of the paternal grandmother's home.
J.A. did not appear for a pretrial status conference on July 16 because he was in local custody pending transfer to a federal facility for deportation proceedings.
After the Agency approved the paternal grandmother's home for placement, J.A. filed a section 388 petition asking the court to place Angelina with her paternal grandmother. J.A. said a change in placement was in Angelina's best interests because the Agency had expressed concerns about the "personal characteristics and specialized parenting" of her current foster parents, and placement with her grandmother would allow Angelina to grow up surrounded by her family. The court found that the section 388 petition did not state a prima facie case and denied J.A.'s request for a hearing without prejudice.
The section 366.26 hearing was held on July 30. J.A. was present.[2] The court admitted the Agency's reports in evidence. The court accepted the stipulated testimony of the social worker, L.M., J.A. and the foster mother. L.M. said she loved her daughter and they shared a strong bond. J.A. stated he loved his daughter and wanted to remain in her life. She was very important to him. The foster mother said the parents telephoned Angelina on June 4 and again on July 26.
The social worker reported that Angelina was an outgoing and happy three year old with no developmental delays. Her behavior was aggressive at times. Angelina had a compulsive fixation on food and would eat unlimited amounts, if allowed. Angelina referred to her foster parents as "mommy" and "daddy." They were willing to adopt her and had initiated an adoptive home study. If that placement was not available, there were 102 approved adoptive families in San Diego County that had indicated an interest in adopting a child like Angelina. The social worker said Angelina was a loving child who was capable of developing a strong and loving relationship with a caregiver.
According to the social worker's report, prior to June 2011, J.A.'s visitation with Angelina was sporadic. He was not allowed visitation services at his detention facility. After his release, he began visiting Angelina every week at a visitation center. The center cancelled J.A.'s visitation services after he missed four visits in December. The Agency made another referral and visitation resumed. The social worker observed six visits between J.A. and Angelina. The paternal grandmother was also present. The social worker said J.A. acted as a parent to Angelina. Angelina called him "daddy." During visits, she remained close to her father or grandmother, engaging them in conversation. J.A. was calm, loving and attentive to Angelina's needs. She kissed and hugged him goodbye when the visits ended. When leaving, Angelina sometimes became sad and cried, and insisted the visitation monitor stop the car so she could say goodbye to J.A. again. However, Angelina had never been in J.A.'s care. He did not meet her primary physical and emotional needs. The social worker believed that Angelina would derive more benefit from adoption than she would from maintaining a relationship with her father.
L.M. was affectionate, loving and attentive to Angelina's needs. Angelina greeted her mother with hugs and kisses. She called her "mommy" and appeared to be sad when the visits ended. L.M. and Angelina shared a positive parent/child relationship. The social worker said the quality of that relationship was diminished by L.M.'s personal emotional struggles. Angelina had not been in L.M.'s care for almost two years. L.M. last visited Angelina in mid-May 2012. The social worker believed that the benefits of adoption outweighed the existing parent/child relationship between Angelina and L.M.
The court found that Angelina had a bond with her mother and father. After carefully weighing the benefits of adoption compared to the benefits of maintaining those bonds, the court determined Angelina would derive more benefit from adoption than she would from continuing the parent/child relationships. The court found that Angelina was adoptable and terminated parental rights.
DISCUSSION
I
Dismissal of L.M.'s Appeal
Citing Sade C., supra, 13 Cal.4th 952 and Penson, supra, 488 U.S. at page 88, L.M. asks this court to exercise its discretion to review the record for error. In Sade C., the California Supreme Court held that review pursuant to People v. Wende (1979) 25 Cal.3d 436 is unavailable in "an indigent parent's appeal from a judgment or order, obtained by the state, adversely affecting [her] custody of a child or [her] status as the child's parent." (Sade C., supra, 13 Cal.4th at p. 959.) We therefore deny appellant's requests to review the record for error and to address the Anders issues. (Anders v. California (1967) 386 U.S. 738.)
L.M.'s counsel requests leave for her client to file a supplemental brief in propria persona (In re Phoenix H. (2009) 47 Cal.4th 835) and also asks this court to order counsel to brief any arguable issue (Penson, supra, 488 U.S. at p. 88). The requests are denied.
II
Review of Issues Raised on Appeal by J.A.
A. Section 388 Petition
J.A. contends the court erred when it summarily denied his section 388 petition asking the court to place Angelina in the care of her paternal grandmother. J.A. argues the petition stated a prima facie case of changed circumstances and best interests because the Agency had approved the paternal grandmother's home for placement, expressed misgivings about the suitability of the foster parents to adopt Angelina and identified a number of significant advantages to Angelina if placed with her grandmother.[3]
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, there is a change of circumstances or new evidence, and the proposed modification is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); Cal. Rules of Court, rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "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 (Zachary G.).) When 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, 188-189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) A petition to change, modify or set aside an order under section 388 can be denied ex parte only if it fails to make a prima facie showing of changed circumstances or new evidence that suggests the proposed change of order would promote the child's best interests. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 323; see Cal. Rules of Court, rule 5.570(e).)
We review a summary denial of a hearing on a modification petition for abuse of discretion. (Zachary G., supra, 77 Cal.App.4th at p. 808.)
In support of his request for a hearing under section 388 to place Angelina in her grandmother's home, J.A. cited the Agency's comments about the foster parents in its section 366.26 report, which read: "There have been some issues brought to the Agency['s] attention regarding applicant's personal characteristics and specialized parenting. These concerns will be addressed in the home study." He also pointed to the Agency's approval of grandmother's home for placement. The social worker stated, "If Angelina is placed in her care she would be able to grow up with family and maintain her Hispanic culture, including her language. She would also be allotted the opportunity to have regular contact with her siblings." J.A. contends the Agency's statements establish a prima facie case of changed circumstances and best interests of the child, and the court erred when it denied his section 388 petition without a hearing.
While the court would not have abused its discretion had it granted a hearing on the merits of J.A.'s section 388 petition, under the controlling principles of law, we cannot conclude the court's denial of the petition without a full hearing constituted a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) After reunification services have been terminated, the focus shifts to the needs of the child for permanency and stability. (Id. at p. 317.) Here, the petition for a change of placement was filed on the eve of Angelina's permanency placement and selection hearing. The record shows that Angelina viewed her foster parents as "mommy" and "daddy" and they had established a parent/child relationship with her. Although the Agency noted there were issues that needed to be addressed in the foster parents' adoptive home study, and delayed the permanency plan hearing for three months to consider placement options, we draw the reasonable inference the Agency believed those issues would be successfully addressed or it would not have identified the foster parents as Angelina's prospective adoptive parents. The court could reasonably conclude the petition did not state a prima facie case that a change of placement at that time was in Angelina's best interests. (§ 388, subd. (d).)
B. Termination of Parental Rights
J.A. contends the court erred when it terminated his parental rights to Angelina. He argues the Agency recognized the importance of his relationship with Angelina when it recommended that the adoptive parents allow continued visitation and expressed a willingness to coordinate ongoing contact. J.A. argues termination of parental rights would be detrimental to Angelina under the beneficial parent/child relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).)
At a section 366.26 hearing, the court may select one of three permanency plans: adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) There is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G., supra, 77 Cal.App.4th at pp. 808-809.) If the court determines the child is likely to be adopted, the burden shifts to the parent to show termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; but see § 366.26, subd. (c)(1)(A).)
An exception to termination of parental rights exists when "[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)(B)(i).) " '[B]enefit from continuing the . . . relationship' " means " 'the [parent/child] relationship' . . . 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 (Autumn H.).) The exception does not require proof the child has a "primary attachment" to the parent or the parent has maintained day-to-day contact with the child. (In re S.B. (2008) 164 Cal.App.4th 289, 299; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1538; In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Where the parent has continued to regularly visit and contact the child, and the child has maintained or developed a significant, positive, emotional attachment to the parent, "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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If there is substantial evidence supporting the court's ruling, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (Autumn H., supra, 27 Cal.App.4th at p. 576.)
J.A. cannot show on appeal there is no evidence of a sufficiently substantial nature to support the court's finding the beneficial parent/child relationship exception did not apply. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) J.A. did not maintain regular visitation and contact with Angelina, as required under section 366.26, subdivision (c)(1)(B)(i). At the January 14, 2010, disposition hearing, the court permitted J.A. to have supervised visits with Angelina, who was placed with her mother in foster care. Despite access, J.A. did not visit Angelina. He was then held in juvenile facilities on repeated probation violations for a combined total of approximately 11 months. Under facility rules, he was not permitted to have visits with Angelina. The record does not show he visited Angelina when he was out of custody. From the end of January 2010 to June 2011, J.A. saw Angelina once, at a court hearing in July 2010. She was not comfortable with him at that time.
J.A. began visiting Angelina in approximately June 2011. She was then almost two years old. In December, after he missed four of his weekly one-hour visits, the visitation center cancelled his services. The Agency made another referral for visitation services and J.A.'s weekly one-hour visits with Angelina resumed. On this record, there is substantial evidence to show that J.A. did not maintain regular visitation and contact with Angelina as required to support a beneficial parent/child relationship exception under section 366.26, subdivision (c)(1)(B)(i).
To the extent J.A. established regular visitation and contact with Angelina, he does not show the court erred when it found that Angelina would derive more benefit from the permanency of an adoptive home than she would from maintaining a relationship with her parents in a tenuous placement. To his credit, when he was 16 years old, J.A. developed a warm, loving and positive relationship with Angelina. She enjoyed their visits. They played together. The social worker reported that J.A. was attentive to Angelina's needs and assumed a parental role with her during their weekly one-hour visits. She called him "daddy." The court found that J.A. and Angelina had a bond.
An evaluation of the strength of the parent/child bond is based on variables such as Angelina's age, the portion of her life that she spent in parental custody and the child's particular needs. (Autumn H., supra, 27 Cal.App.4th at p. 576.) Angelina is a young child. Her needs for stability and security are paramount. Angelina did not have a relationship with J.A. until she was almost two years old. Because of his delinquent acts, J.A. was a ward of the court from ages 13 to 16 years. He was incarcerated for approximately 11 months during Angelina's dependency proceedings. J.A. continued to have a volatile relationship with L.M. J.A.'s circumstances were unstable. He recently had been incarcerated and was facing deportation proceedings. Angelina had never been in J.A.'s care. At the time of the section 366.26 hearing, Angelina had been in the care of a potential adoptive family for almost 23 months. She called her foster parents "mommy" and "daddy" and viewed them as her parents.
To overcome the strong policy in favor of adoption, the parent must show more than "frequent and loving contact" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418) and have a stronger relationship to the child than a friendly nonparent relative (In re Angel B. (2002) 97 Cal.App.4th 454, 468). The court could reasonably infer the bond between J.A. and Angelina, although affectionate and loving, was not sufficiently strong to outweigh the benefits Angelina would gain from adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575; In re Brittany C. (1999) 76 Cal.App.4th 847, 853-854 [when a child cannot be returned to parental custody, the child must be given every opportunity to bond with an individual who will assume the role of the parent].) There is substantial evidence to support the court's finding that the beneficial parent/child relationship exception did not apply. (§ 366.26, subd. (c)(1)(B)(i).)





DISPOSITION
The findings and orders are affirmed. L.M.'s appeal is dismissed.


HALLER, J.
WE CONCUR:



HUFFMAN, Acting P. J.



AARON, J.



[1] Further statutory references are to the Welfare and Institutions Code.
[2] The record does not indicate whether J.A. was produced from custody or whether he was no longer incarcerated.
[3] The Agency contends J.A. does not have standing to challenge the denial of his request for Angelina's placement with the paternal grandmother. (In re K.C. (2011) 52 Cal.4th 231, 236 [parent did not have standing to appeal placement order because he did not contest termination of his parental rights].) We exercise our discretion to decide J.A.'s challenge to the denial of his request for a placement hearing under section 388 on its merits.

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