In re M.J.

Filed 10/19/07 In re M.J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from judgments and orders of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Mark J. appeals judgments terminating his parental rights to his children, M.J. and L.B., under Welfare and Institutions Code section 366.26.^[1] He also appeals orders denying his petition for modification under section 388. We affirm the judgments and orders.

FACTUAL AND PROCEDURAL BACKGROUND

Mark J. and N.W. are the parents of M.J., born July 2003, and L.B., born November 2005.^[2]On November 30, 2005, the San Diego Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (d) on behalf of L.B. The Agency alleged N.W. had a history of cocaine use and relapsed while pregnant with L.B. At birth, L.B. tested positive for cocaine metabolites and displayed mild symptoms associated with substance abuse withdrawal. The Agency also alleged the child's father was unable to protect the child.^[3]

On December 16, 2005, the Agency filed a petition under section 300, subdivision (b), alleging N.W.'s drug use left her unable to provide regular care to her daughter M.J.^[4] The Agency named Mark as M.J.'s alleged father.

The Agency located Mark at the California Institution for Men, where he was incarcerated for a parole violation on a burglary conviction. Although he was listed on M.J.'s birth certificate, Mark filed paternity declarations in which he stated he did not know whether he was M.J.'s or L.B.'s biological father. Mark was willing to participate in paternity tests. The court appointed an attorney to represent him and ordered paternity testing.

The court sustained the section 300 petitions, removed M.J. and L.B. (children) from N.W.'s custody, and ordered a plan of family reunification services for N.W. L.B., M.J. and D.W. were placed in the care of L.B.'s alleged paternal grandmother (caregiver), a non-relative extended family member who had known the family for more than 20 years.

In June 2006 paternity tests confirmed Mark was the children's biological father. The Agency sent him a prison parenting packet. In July Mark telephoned the social worker and requested reunification services. He asked to delay the six-month review hearing until his release from custody in October.

On July 28, 2006, the court denied Mark's request for a continuance, terminated reunification services and set a hearing under section 366.26 to select and implement a permanency plan for the children.

Mark was released from custody on October 2, 2006. On January 5, 2007, he filed a petition for modification under section 388 (petition) seeking placement of the children in his care. At the section 366.26 hearing on January 17, the court granted a hearing on the petition, and asked the parties to present evidence on all the issues to be determined by the court in one hearing.

Mark testified that he was incarcerated from March 2005 until January 2006, and from March 29, 2006 until October. He was also incarcerated when M.J. was an infant. In prison, Mark completed a parenting class and a skills building program, and attended weekly Narcotics Anonymous (NA) meetings. He currently participated in NA meetings two or three times each week, had a sponsor and was on step one of a 12-step program. All his drug tests had been clean. Mark was working part-time. He lived with his brother, sister and nephew in the family home. At their weekly visits, Mark and the children played together, ate and talked. He fed and cleaned the children, and corrected them when necessary. The visits were "beautiful."

Catherine McAdams, a social worker newly assigned to the case, observed one visit between Mark and the children. She testified that Mark adequately met the children's needs and handled them both very well. He was flexible and responded to their cues. M.J. was very responsive to Mark. According to McAdams, Mark was affectionate, protective and gentle with the children, and the visit was very positive.

Anzette Shackelford, the previous social worker, opined that neither child had a parental relationship with Mark and did not recognize him as a father figure. The children were bonded to D.W., their older half-sibling, and the caregiver, and placement with Mark would not be in their best interests. Shackelford recommended the court terminate parental rights and order a permanent plan of adoption for the children.

In a written statement, N.W. opposed separating the children from their half-sibling and placing them with Mark. She felt that all three of her children were "blessed" to be with the caregiver, and wanted the caregiver to adopt them.

The court found that Mark's circumstances were not sufficiently changed to justify disrupting the children's stable placement with the caregiver, and denied the petition. The court stated that Mark's visits with the children went well but he had not established a parental relationship with the children. The court determined the children were adoptable and no exceptions applied to preclude termination of parental rights. The court identified adoption as the children's permanency plan and terminated parental rights.

DISCUSSION

A

The Court Did Not Abuse Its Discretion When It Denied Mark's Petition for Modification

Mark contends the court abused its discretion when it denied the petition for modification under section 388. Mark argues the court erred because at trial he "demonstrated substantial evidence that he had changed his circumstances and it was in his children's best interests to grant his section 388 petition."

Mark misstates the quantum of proof that a petitioner under section 388, subdivision (a), is required to show to prevail on his or her petition. Under section 388, subdivision (a), the petitioner must show, by a preponderance of the evidence, a change of circumstances or new evidence, and that the proposed modification is in the child's best interest. ( 388, subd. (a); In re Jasmon O. (1994) 8 Cal.4th 398, 415; Cal. Rules of Court, rule 5.570(e).^[5]

We review the grant or denial of a petition for modification under section 388 for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) While the abuse of discretion standard gives the trial court substantial latitude, a trial court's discretion is guided and controlled by fixed legal principles and exercised in conformity with the spirit of the law. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion. [Citation.]" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)

In evaluating whether the petitioner has met his or her burden to show changed circumstances, the trial court should consider: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In reKimberly F. (1997) 56 Cal.App.4th 519, 531-532 ["While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion"].)

Mark argues the children's dependencies resulted from their mother's drug use, and suggests he was not responsible for the problems that led to the children's dependencies because he did not know he was the children's biological father until late in the proceedings. With respect to M.J., this argument is without merit. Mark was present at M.J.'s birth and signed her birth certificate. He provided a stroller, clothes and gifts. From 2003 to 2005, Mark knew M.J. was a dependent of the juvenile court and did not attend hearings, participate in offered services or seek to resolve any doubts he might have had about his paternity. In other words, Mark did not assume any responsibility for M.J., and she was without a responsible, protective parent.

After N.W. informed Mark he might be L.B.'s father, Mark, to his credit, sought to clarify his paternity status. In February 2006, Mark submitted to a paternity test. The record indicates the subsequent delay in obtaining the results was not his fault.^[6] Even if biological paternity had been determined at that time, the record indicates that Mark's activities contributed to the continuation of the children's dependencies. Mark would not have been able to protect the children from N.W. because he and N.W. were using drugs together. His niece alleged he and N.W. stole her automobile. Mark was incarcerated on a parole violation two months after he had been in custody for 10 months. Thus the court could reasonably conclude Mark was not an uninvolved bystander. The record allows the inference that Mark's indifference to M.J. during her first dependency proceeding, and his behaviors during the current dependency proceedings, contributed to the seriousness of the problem which led to the dependencies and their continuation. (In reKimberly F., supra, 56 Cal.App.4th at pp. 531-532.)

The court acknowledged Mark's release from prison was a changed circumstance, but not one that would allow it determine that it was in the children's best interest to be placed in his care. In view of the length of Mark's 10-year history of substance abuse, and incarcerations in 2003, 2004 or 2005, and 2006, three months is not a substantial period of stability. Thus the court could reasonably conclude that Mark's problems were not resolved to the degree that would allow the court to safely return the children to his custody. (In reKimberly F., supra, 56 Cal.App.4th at pp. 531-532.)

The record also supports a finding that granting the petition would not promote the children's best interests. The court may consider the strength of relative bonds between the dependent children to both parent and caregiver. (In reKimberly F, supra, 56 Cal.App.4th at pp. 531-532.) Although the record is not clear, it appears Mark had approximately three or four visits with L.B. and M.J., and several more visits with M.J. alone. We draw the reasonable inference that, at the time of the section 388 hearing, Mark had barely started to establish a relationship with the children.

In contrast, even after L.B.'s paternity test showed that L.B. was not the caregiver's biological granddaughter, the caregiver remained devoted to L.B. and her siblings, and had provided them a nurturing and loving home for almost one year. M.J. and L.B. were happy, healthy and well-adjusted. They were attached to the caregiver and her extended family, and to their older half-sibling. The caregiver expressed a strong desire to provide all three children with a safe, nurturing permanent home and had demonstrated her ability to do so.

The record fully supports the court's determination the children had a significant, primary relationship with the caregiver and disturbing that placement was not in their best interests. The court could reasonably conclude that Mark did not make the required showing of a legitimate change of circumstances and therefore the children's welfare did not require modification of the order setting a section 366.26 hearing. (In reKimberly F.,supra, 56 Cal.App.4th at p. 532; rule 5.570(e).) We conclude that the court did not abuse its discretion when it denied Mark's petition to place the children in his care.

B

Substantial Evidence Supports the Court's Finding that the Beneficial Parent-Child Exception Under Section 366.26, Subdivision (c)(1)(A) Does Not Apply

Mark asserts the court erred when it determined that the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of parental rights. Mark contends the court found that his visits with the children were very positive and hoped that the caregiver would permit him to maintain contact with the children. He argues the court should not have terminated his parental rights because the court's findings "demonstrate[] that substantial evidence supported the existence of the beneficial relationship exception to adoption."^[7]

At a permanency plan hearing, the court may order one of three alternativesadoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dep't. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.) Once the court determines that a child is likely to be adopted, the burden shifts to the parent to show that 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.)

Section 366.26, subdivision (c)(1)(A) provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." To overcome the statutory preference for adoption, the parent must prove, by a preponderance of the evidence, that he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

We recognize that interaction between parent and child will almost always confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) However, in the context of section 366.26, subdivision (c)(1)(A), "benefit" 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." (Autumn H., at p. 575.) "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." (Ibid.)

As we discussed in the preceding section, Mark waited until he was released from custody to contact the children. He had barely started to establish a relationship with the children. Social worker Shackelford opined that Mark's relationships with the children were not parental in nature. Mark had never lived with the children or contributed to their support. He did not assume any kind of parental role even when afforded the opportunity to do so in M.J.'s previous dependency proceeding. The record supports a reasonable inference Mark would not have established a parental relationship with the children after approximately four to eight supervised visits occurring weekly over a period of less than three months. Thus the court could reasonably conclude the children barely knew Mark and did not have a parent-child relationship with him.

Although the record shows the children enjoyed their visits with Mark, there is substantial evidence to support the court's finding that termination of parental rights would not be detrimental to the children and they would benefit from the security of a stable, permanent home with a committed, capable adoptive parent. ( 366.26, subd. (c)(1)(A); Autumn H., supra, 27 Cal.App.4th at p. 575.)

DISPOSITION

The judgments and orders are affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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^[1] Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.

^[2] N.W. is not a party to this appeal.

^[3] Initially, N.W. alleged another man was L.B.'s father. Subsequent testing confirmed that Mark was L.B.'s biological father.

^[4] M.J. and a half sibling, D.W., had previously been dependents of the juvenile court after M.J. tested positive for drugs at birth. N.W. regained custody of D.W. and M.J. at an 18-month review hearing. After a six-month period of family maintenance services, the court terminated dependency jurisdiction in September 2005. The Agency's reports indicate that it also initiated dependency proceedings on behalf of D.W. in December 2005.

^[5] Further rule references are to the California Rules of Court.

^[6] The children did not submit test samples until May 18, 2006. The paternity tests were completed on June 1, 2006.

^[7] As we noted earlier in this opinion, the substantial evidence standard is not applicable at the trial court level in dependency hearings. A parent must prove the existence of an exception to termination of parental rights by a preponderance of the evidence. ( 366.26, subd. (c)(1).)