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NOT TO BE PUBLISHED IN
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
STATE OF CALIFORNIA
In re ANGELINA M., a Person Coming Under the
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,
J.A. et al.,
(Super. Ct. No. J517675)
from findings and orders of the Superior Court of San Diego
County, Ronald F. Frazier, Judge. Affirmed in part; dismissed in part.
and L.M. appeal orders entered at a permanency plan and selection hearing held
under Welfare and Institutions Code section 366.26. 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
FACTUAL AND PROCEDURAL
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
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. 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
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.
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.)
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.
Review of Issues Raised on Appeal by J.A.
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.
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,
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
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).)
of Parental Rights
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.
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
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,
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
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).)
findings and orders are affirmed. L.M.'s
appeal is dismissed.
Acting P. J.
 Further statutory
references are to the Welfare and Institutions Code.
 The record does not
indicate whether J.A. was produced from custody or whether he was no longer
 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.