In re C.D.
Filed 9/20/11 In re C.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 C.D., a Person Coming Under the Juvenile Court Law. | |
| SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. VICTORIA M., Defendant and Appellant. | D059566 (Super. Ct. No. J515100A) |
APPEAL from a judgment of the Superior Court of San Diego County, David B. Oberholzer, Judge. Affirmed.
Victoria M. appeals the judgment terminating her parental rights to her daughter, C.D. Victoria contends the juvenile court abused its discretion by summarily denying her modification petition (Welf. & Inst. Code, § 388; all statutory references are to this code) and erred by declining to apply the beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) to termination of parental rights. We affirm.
BACKGROUND
In July 2003 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for newborn C.D. because she tested positive for methamphetamine and Victoria admitting using drugs during pregnancy. C.D. was detained in foster care. In September the court entered a true finding on the petition and ordered C.D. placed in foster care. C.D. remained in the same foster home until October 2004, when she began a 60-day trial visit with Victoria. In July 2005 the court ordered C.D. placed with Victoria and terminated dependency jurisdiction.
In August 2007 Victoria left C.D. with the maternal grandmother "for a few days" and never returned. In February 2008 the maternal grandmother called the Agency and said she could no longer care for C.D. The Agency attempted to offer Victoria voluntary services but was unable to locate her. Eventually, the Agency found Victoria, and she said she was able to resume caring for C.D. After Victoria disappeared again, the Agency closed the voluntary case. Without advising the Agency, Victoria left C.D. in the care of a family friend. It is unclear exactly where C.D. lived during this period. She later said she had been in many homes of relatives and friends while Victoria was absent. C.D. described a transient life, with limited access to food, clothing and shelter at times.
By July 2009 Victoria had again left C.D. with the maternal grandmother. That month Victoria tested positive for methamphetamine when she gave birth to her second child, G.B. The Agency filed a new dependency petition for C.D., who was six years old. The petition alleged Victoria tested positive for methamphetamine in April and July, she admitted recent methamphetamine use and she admitted regular use over the previous nine months. C.D. was detained with a relative and then in a foster home. In October the court entered a true finding on the petition and ordered C.D. placed in foster care. That month C.D. was moved to the foster home where she remained for the remainder of this case. At the 12-month review hearing in June 2010, the court terminated reunification services and set a section 366.26 hearing. In February 2011 Victoria filed her section 388 petition. In March the court summarily denied the petition. In April the court terminated parental rights.
THE SECTION 388 PETITION
Section 388 allows the juvenile court to modify an order if a parent establishes, by a preponderance of the evidence, that changed circumstances or new evidence exist and the proposed change would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing as to both of these elements. (In re Zachary G., supra, at p. 806; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The petition should be liberally construed in favor of granting a hearing, but "[t]he 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, at p. 806.) "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., supra, at p. 189.) We review the summary denial of a section 388 petition for an abuse of discretion. (In re Zachary G., supra, at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)
Victoria's section 388 petition asked the court to vacate the order setting the section 366.26 hearing, and to place C.D. with Victoria with family maintenance services or allow unsupervised visits and additional reunification services. As changed circumstances, the petition alleged that Victoria enrolled in the South Bay Woman's Recovery Center substance abuse program in June 2010 and graduated in February 2011; she began individual therapy in September 2010 and continued to participate; in September 2010 she qualified as a lead teacher at the South Bay Woman's Recovery Center; she regularly attended 12-step meetings and had a sponsor; and for the past six months she had successfully participated in voluntary services after the "clean" birth of her third child in late 2010. The petition alleged the proposed modification was in C.D.'s best interests because she knew Victoria as her mother and loved her; they had lived together for most of C.D.'s life; Victoria visited consistently; and she and C.D. had a positive and close relationship.
Victoria began using drugs when she was 12 years old, more than 16 years before the court summarily denied her section 388 petition. She received services for nearly two years in the first dependency. In that case she completed drug treatment, parenting classes and a course of individual therapy. After a long interval of sobriety, she relapsed.
In this case, Victoria delayed for months before beginning services. She did not participate in individual therapy or parenting education. She made minimal progress in drug treatment, the only case plan component in which she participated. Victoria was offered services for nearly one year in this dependency. In late 2010, after services ended, she began participating in voluntary services for her third child.
Victoria did not begin visiting C.D. until September 2009, about two months after C.D. was detained in this case. At one visit, Victoria told C.D. that she was trying to stop using drugs and planned to take C.D. from her placement so they could reunify. This upset C.D., but Victoria refused to heed the social worker's advice to not say such things. Victoria did not visit at all between October 2009 and March 2010. She resumed visiting in April 2010. Visits were supervised and occurred once a week or every other week. In general, Victoria interacted appropriately with C.D. C.D. enjoyed visits and loved Victoria, but focused much of her attention on the toys Victoria brought her. C.D. always left the visitation room without saying goodbye to Victoria and had to be reminded to hug and kiss her.
C.D. was nominally in Victoria's care from October 2004, when she was one year old, until the beginning of this case in July 2009, when C.D. was six years old. During much of that time, however, C.D. was not living with Victoria. C.D.'s first six years were marked by instability and chaos. At the time the court summarily denied the section 388 petition, C.D. was seven and one-half years old. She had been in the dependency system for a total of more than three and one-half years. The reunification phase in this case had ended more than eight months earlier.
C.D. had been in the same foster home for one year and four months. The foster parents wished to adopt her and G.B., who was placed in the foster home shortly after C.D. C.D. viewed the foster parents as her parents and was bonded with G.B. When asked where she would most like to live, C.D. said "here with my mom and dad," referring to the foster parents. C.D. appeared happy when speaking about the foster parents as her "forever family," although she did inquire whether she would be able to continue visiting Victoria.
As an "escape mechanism" available after the termination of reunification services and before termination of parental rights, section 388 protects the due process rights of a parent who can show a legitimate change of circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295, 307-310.) "Childhood does not wait for the parent to become adequate." (Id. at p. 310.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The focus was on C.D.'s need for permanency and stability and there was a rebuttable presumption that continued out-of-home placement was in her best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The juvenile court determined that Victoria's completion of drug treatment came too late, and it was too soon to tell if she would remain drug free after years of receiving and not responding to services. The court found that it was not in C.D.'s best interests to be returned to Victoria or to have her permanency delayed further. The court did not abuse its discretion by summarily denying the section 388 petition.
THE BENEFICIAL RELATIONSHIP EXCEPTION
If a dependent child is adoptable, as C.D. is, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[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).) A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) If terminating parental rights "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome . . . ." (Ibid.) The existence of a beneficial relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) Examining the evidence in the light most favorable to the judgment, we conclude that although Victoria maintained regular visitation and contact, at least during the latter part of this case, there is substantial evidence to support the findings that termination of parental rights would not be detrimental to C.D. and Victoria did not meet her burden of proving the exception. (Id. at pp. 576–577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
At the time of the section 366.26 hearing, C.D. was nearly eight years old. She had been in Victoria's custody for several years, but Victoria did not provide appropriate care for much of that time. C.D. had been out of Victoria's care for one year and nine months and in the foster home for one year and five months. C.D. was bonded with the foster parents and with G.B., viewed them as her family and wanted to be adopted. The foster parents provided C.D. a stable and nurturing environment, and were committed to adopting her. During visits, Victoria sometimes failed to set limits for C.D., and sometimes spoke to C.D. in a foreign language, preventing the social worker from supervising the visit adequately. Victoria ceased this practice only after the Agency obtained a court order. Although C.D. and Victoria loved each other, their relationship did not promote C.D.'s "well-being . . . to such a degree as to outweigh the well-being [she] would gain" by remaining in the foster home and being adopted by her foster parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Victoria cites In re S.B. (2008) 164 Cal.App.4th 289, in which this court concluded the juvenile court erred in declining to apply the beneficial relationship exception. (Id. at p. 301.) In that case, the child continued to display a strong attachment to the appellant father after her removal; they "had an emotionally significant relationship;" and the father visited consistently. (Id. at pp. 293–294, 298–301.) Unlike Victoria, the father in that case "complied with 'every aspect' of his case plan" (id. at p. 298), empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (id. at p. 298). Thus, In re S.B. is distinguishable from the instant case.
DISPOSITION
The judgment is affirmed.
McINTYRE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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