In re J.J.

Filed 2/4/10 In re J.J. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Kim W. (Mother) appeals the termination of her parental rights over her son, J.J., born in October 2003. (Welf. & Inst. Code,  366.26.)[1] She contends the juvenile court erred in summarily denying her petition to modify ( 388), and the beneficial relationship exception to adoption ( 366.26, subd. (c)(1)(B)(i)) should have been applied. We reject the contentions and affirm.

BACKGROUND

J.J. is the sixth of seven children born to Mother, who has a long history of drug abuse and criminality. J.Js five older half-siblings were removed from Mothers custody due to neglect or abuse. J.J.s younger half-sibling, D.R., remains with Mother.

In October 2005, the Contra Costa County Children & Family Services Bureau (Bureau) filed the original dependency petition in this case under section 300, subdivisions (b) (failure to protect) and (j) (abuse of a sibling), alleging Mothers admitted use of crack cocaine and arrest for possession of controlled substance paraphernalia and violation of parole. In addition, the petition alleged that, in July 2005, Mothers parental rights had been terminated over J.Js half-sibling, Z.K.; and Mother had petitions sustained as to, and failed to reunify with, four other half-siblings. In November, the court sustained an amended petition under section 300, subdivision (b), which alleged that Mothers substance abuse impaired her ability to provide J.J. regular care and supervision. J.J. was placed in foster care and Mother was given 18 months of reunification services.

Mother had some relapses in 2006 and 2007; and, in July 2007, the court terminated reunification services and set the matter for a section 366.26 permanency planning hearing (hereafter, .26 hearing). Mother filed a section 388 request to reinstate reunification services and vacate the .26 hearing, and at the October 2007 combined section 388 and .26 hearings, the court vacated the .26 hearing and ordered additional reunification services. J.J. remained in foster care and had positive visits with Mother.

In a report prepared for the February 2008 status review hearing, the Bureau again recommended setting the case for a .26 hearing. Despite Mothers compliance with her case plan, there had been multiple incidents between her and D.R.s father requiring police intervention, and Mother had contradicted herself multiple times regarding the case. In May, the court authorized overnights visits for J.J. with Mother; and, in August, it authorized a 30-day visit. In September, the court ordered J.J. returned to Mother under the Bureaus supervision.

In November 2008, the Bureau filed a supplemental petition ( 387) recommending J.J.s return to foster care based on four incidents occurring in October: (1) Mother hit J.J. with a belt in a Bay Area Rapid Transit (BART) station restroom; (2) Mother was arraigned in Alameda County Superior Court on four counts of fraud and one count of commercial burglary, committed in December 2007 in the presence of D.R.; (3) during a fight between Mother and J.J.s adult half sibling, Gregory H., Gregory threw a cell phone, striking D.R. in the head; and (4) J.J. reported that Mother hits D.R. with a belt, slaps him with a shoe, and hits him with her hand. At the December jurisdictional hearing, the court found that Mother hit J.J. at the BART station; misled the court about her criminal rehabilitation and her ability to care for J.J., in that she failed to disclose to the court or her social worker that she had passed forged and/or counterfeit travelers checks in January 2008 in the presence of D.R.; and, in a fight between Mother and Gregory, Gregory threw a cell phone, hitting D.R. in the head.

At the January 2009 dispositional hearing, the court found that reasonable efforts had been made to eliminate the need for J.J.s removal, and that he not be returned to Mothers custody. After finding Mother had received at least 36 months of reunification services, the court terminated family maintenance services, declined to offer reunification services, and set the matter for a .26 hearing. Mother filed a petition for extraordinary relief, which this court denied in May 2009.

.26 Hearing Report

Bureau social worker Marilyn Scrutchins April 2009 .26 hearing report recommended termination of Mothers parental rights over J.J. so that he could be placed for adoption. The report noted that J.J. has an individualized education plan for a speech and language delay; he has an expressive or receptive language disorder for which he gets speech therapy.

J.J. has a history of anxiety, agitation, and difficulty with self-regulation. He has a behavioral history of tantrums, enuresis, encopresis and defiant behavior. J.J.s individual mental health therapist, Diana Smith, said going back and forth between homes has been hard for J.J., but he has again adjusted to his foster home. He displayed agitation and difficulty managing his emotions through mid-December 2008, and suffered trauma as a result of the incident at the BART station. Smith opined that J.J. uses therapy well and is capable of recovering with the support of a stable home environment. She said few people are equipped to deal with J.J.s emotional and behavioral difficulties. His foster mother is very capable and loving in her interactions with him and has provided him patient and consistent care. Smith described J.J. as a vulnerable child, who needs more support than most children. She also said J.J. needs permanency, and continued contact with a birth parent can be very conflictual for a child when permanency with another family is the plan. The report noted that since the dependency began in September 2005, J.J. has been in six different placements, including reunification with Mother between April 2007 and September 2008. He has been in his foster mothers care for 22 months, 18 months previously and four months currently.

Mother had five supervised visits with J.J. between December 2008 and March 2009. On the way to the second visit, J.J. repeatedly told the social worker he thinks Mother hates him because she already has a son whom she loves. J.J. responded positively to Mother at the visit and she was appropriately affectionate. J.J. did not seem enthusiastic about his third visit with Mother. He talked a lot about his foster mother, did not initiate affection with Mother and separated easily from Mother. The next visit was cancelled because Mother did not confirm it. At the end of January 2009, her visits were reduced to once a month and she cancelled the February visit due to car trouble. At the rescheduled February visit, Mother was affectionate with J.J. and they appeared to have a good time. They both said they missed each other. J.J. showed no apparent sadness separating from her at the end of the visit. At the March visit, J.J. seemed very happy that Mother brought one of his favorite books. She had to cut the visit short, however, because D.R., who was waiting in the car with a neighbor, was vomiting and appeared very sick. Because J.J. requested to see his brother, the social worker approved of Mother bringing D.R. to the next visit. After the visit, J.J. appeared distressed and anxious, and appeared relieved when his caregiver arrived. The report stated that J.J. has made impressive progress since his original placement in his caregivers home and the foster mother is committed to adopting him. The report recommended that future visitation be at the discretion of the adopting parent.

The report noted that, although Mother displays genuine affection and love for J.J. at her visits, she has failed to demonstrate an ongoing ability to provide him with a safe, structured and predictable environment in order for him to feel secure and anxiety-free. Although the Bureau had done all it could to provide Mother with the services she needed, those services were not enough for her to become a parent able to meet J.J.s needs. The report found J.J. adoptable and recommended adoption as the permanent plan.

Addendum to .26 Hearing Report

A May 20, 2009 addendum to the Bureaus .26 hearing report noted that J.J. and Mother had had two supervised visits since the .26 hearing report was written. At the April visit, J.J. complied with Mothers request to sit on her lap for cuddle time. She also asked him what kind of food he would like her to make him in the future, told him she loved him, and was emotional and intense in her expression of affection for him. At the end of the visit, J.J. looked upset and said he was angry that Mother had to leave. She continued to linger until she complied with the social workers request to depart.

Prior to the May 2009 visit, the social worker reviewed with Mother certain boundaries for visits and requested that Mother not mention D.R. The visit began with J.J. excitedly giving Mother a Mothers Day gift and Mother responding positively. In response to Mother telling J.J. she loved him and missed him, J.J. said he wanted to tell the judge that he wanted to spend the night with Mother. Mother was very appropriate at the visit and respected the established boundaries. J.J. did not mention his brother during the visit and showed no apparent emotion when Mother left.

The report described the four visits the social worker observed: J.J. happily greeted Mother and positively interacted with her, but he separated easily from her and willingly returned to his foster mother. The report noted that in a telephone conversation between the social worker and J.J.s therapist, the therapist was opposed to J.J.s presence in court and said it would be unfair to put J.J. in a position where he is made to feel he has to choose between Mother and his foster mother, both of whom he loves. The therapist also said that J.J. does not talk about D.R. in his therapy sessions and has been noncommittal and unresponsive when the therapist has mentioned D.R.s name. The report stated that the Bureau was still recommending termination of parental rights.

A May 20, 2009 letter to the Bureau from J.J.s therapist, Smith, opined continued ambiguity about to whom [J.J.] belongs will compound his confusion and anger. The state of limbo that he has been in for his entire life if continued will seriously interfere with his ability to move forward with the development of his attachment capacity. The interruption in his relationship with his foster mother that occurred when he was removed from her care this year cannot be repeated without irreparable harm to the relationship. The therapist further opined that this relationship with his foster mother is [J.J.]s best chance to achieve a normal life.

Section 388 Petition

On May 20, 2009, Mother filed a section 388 request to change a court order (section 388 petition). She alleged that J.J. had requested seeing his younger brother and, on at least one occasion in the previous month, had asked Mother when he could go to her house. The section 388 petition also alleged there was no risk of detriment in returning J.J. to his family home.

On May 26, 2009, the court summarily denied the section 388 petition on the grounds that it did not state new evidence or a change of circumstances and the proposed change of order was not in J.J.s best interest.

.26 Hearing

At the June 8, 2009 .26 hearing, social worker Scrutchins testified she recommended J.J. be adopted by his foster mother based on conversations with J.J.s therapist, Smith. When Scrutchins asked J.J. about his foster mother being his forever mom, he said it was okay. Scrutchins could not recall whether J.J. calls Mother mom or Kim.

J.J.s foster mother, Sharon B., testified that, between November 2008 and January 2009, J.J. asked to speak with Mother two or three times and Mother called him two or three times a week. Since January 2009, a court order prohibited phone calls between Mother and J.J., and J.J. had asked to talk with Mother two or three times. Sharon B. said J.J. always refers to Mother as Kim, and refers to Sharon B. as mom. She said J.J. mentions D.R. all the time. When J.J. was placed with her the first time, he had a lot of behavioral problems. By August 2008, when he left her care, his behavior had improved. When he returned to her care after being with Mother for four months he had regressed to where he was when first placed with Sharon B. in April 2007. She said he became very emotional when he told her about the BART incident. J.J. also told her he was really scared when his older brother threw the cell phone that hit D.R.

Sharon B. said she believes that J.J. and Mother have a loving relationship, but she could not say how close they are. Sharon B. is an active participant in J.J.s therapy sessions, and Smith has helped her with J.J.s behavioral issues.

The court concluded there was clear and convincing evidence that it would be in J.J.s interest not to return to Mothers custody, and there would not be detriment from terminating parental contact. The court concluded that terminating J.J.s visits and contact with Mother would be in his best interest because continuing contact is so conflictual for him. The court also concluded that severing J.J.s contact with D.R. would not be detrimental because D.R. is in Mothers care. The court ordered Mothers parental rights over J.J. terminated.

DISCUSSION

I. The Section 388 Request Was Properly Denied

Mother contends the court abused its discretion by summarily denying her section 388 petition.

Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . ( 388, subd. (a).) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . . ( 388, subd. (d).)

A parent seeking modification of a juvenile court order must make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) In order to obtain a hearing on her section 388 modification petition, Mother was required to make a prima facie showing of changed circumstances or new evidence that might require J.J.s removal from his foster parents home and his transfer to Mothers own custody and care in order to promote and protect his best interest and welfare. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1504-1505.)  [I]f 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. [Citations.] (Id. at p. 1505.) The determination to deny a section 388 petition summarily is reviewed for abuse of discretion. (Ibid.)

No abuse of discretion is demonstrated here. The petition referred to the line in the .26 hearing report which stated that because J.J. was requesting to see his brother, social worker Scrutchins had approved Mothers bringing D.R. to the next visit. It also referred to J.J.s request at the May 2009 visit to tell the judge he wanted to spend the night at Mothers house. Even accepting J.J.s requests at face value, such requests do not establish that continuing J.J.s contact with Mother is in his best interest. In evaluating the best interest of the child, a court considers (1) the seriousness of the problem leading to the dependency proceedings, (2) the strength of the relative bonds between the child and both the parent and the caretaker, and (3) the degree to which the problem may be or has been easily removed. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)

Mother has longstanding issues with drug use and criminality that led to the dependency. After receiving more than 36 months of reunification services the court terminated services after it found that: (1) Mother had hit J.J. with a belt; (2) Mother had failed to disclose to her social worker and the court other criminal activity committed in the presence of D.R.; and (3) during a fight between Mother and Gregory, Gregory threw a phone hitting D.R. in the head. J.J.s behavioral problems improved with his foster mother and regressed after the four months he spent in Mothers care. His therapist opined that J.J.s continued contact with Mother was very conflictual and permanency with the foster mother was his best chance to achieve a normal life. The evidence established that, after receiving numerous reunification services, Mother cannot provide J.J. the permanency of a safe, structured and predictable environment in order for him to feel secure and anxiety-free.

II. The Continuing Beneficial Relationship Exception Does Not Apply

Mother also contends the continuing beneficial relationship exception ( 366.26, subd. (c)(1)(B)(i)) applies to prevent termination of her parental rights over J.J.

At a .26 hearing, where possible, adoption is the permanent plan preferred by the Legislature. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) If the court finds a minor 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 minor under one of [six] enumerated exceptions. ( 366.26., subd. (c)(1)(B); [citation].) (Ibid.) It is the parents burden to establish the existence of one of the exceptions to termination. (In re Thomas R. (2006) 145 Cal.App.4th 726, 731.)

In In re Autumn H. (1994) 27 Cal.App.4th 567, the court interpreted the beneficial relationship exception to mean the 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 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 serving 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 parents rights are not terminated. (Id. at p. 575.) Factors which affect the parent-child relationship, such as the childs age, the portion of the childs life spent in the parents custody, the effect of the interaction between the parent and child, and the childs particular needs may be considered by the court in considering the applicability of the beneficial relationship exception. (Id. at pp. 575-576; accord, In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) The relationship must be such that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)

The trial courts determination regarding the beneficial relationship exception is upheld if supported by substantial evidence. (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) In conducting our substantial evidence review, we review the evidence most favorably to the prevailing party and indulge all legitimate and reasonable inferences to uphold the courts ruling. (Ibid.)

In this case, the record clearly established that Mother maintained regular visitation with J.J. The issue here is the second prong of the continuing beneficial relationship exceptionwhether J.J. would benefit from continuing the parental relationship with Mother. We conclude that substantial evidence supports the courts finding that Mother failed to establish a parent-child relationship sufficient to qualify for the section 366.26, subdivision (c)(1)(B)(i) exception, as interpreted by Autumn H. and its progeny.

In arguing that her bond with J.J. is such that it would be detrimental to him to terminate her parental rights, Mother notes that J.J.s former therapist, Dr. Howell, stated that J.J. loved Mother and wanted to be with her. However, Mother fails to mention that Dr. Howells statement was made in July 2008, prior to the BART station incident and the Bureaus section 387 petition. Mother also notes that, at visits, she and J.J. have been affectionate, and at one visit he said he missed her and requested seeing his brother. She argues that J.J.s confusion is an obvious sign of his attachment to her. Finally, she notes Sharon B.s testimony that Mother and J.J. have a loving relationship.

Despite Mothers efforts, the record does not establish that the relationship between her and J.J. is such that he would suffer detriment from its termination. (In re Angel B., supra, 97 Cal.App.4th at p. 467.) J.J. was initially removed from Mothers care when he was two years old; he was five years old at the time of the .26 hearing. During that three-year period, J.J. was returned to Mothers care for four months, during which time his behavior regressed. Smith opined that interrupting J.J.s relationship with Sharon B. again would cause irreparable harm to their very positive, supportive and consistent relationship. J.J. refers to his foster mother as mom. In the opinion of his therapist, J.J. needs permanency and his relationship with Sharon B. is his best chance to achieve a normal life. We conclude the record does not establish that the relationship between Mother and J.J. promotes J.J.s well-being to such a degree that it outweighs the permanency and stability he would gain in a permanent home with adoptive parents. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence supports the courts determination that the continued beneficial relationship exception does not apply.

DISPOSITION

The order is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.

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