In re
Filed 2/7/13 In re S.A. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re S.A. et al., Persons
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
SEAN A.,
Defendant and Appellant.
D062790
(Super. Ct.
No. J517800A-C)
APPEAL from
orders of the Superior Court
of
County, Gary M. Bubis, Judge.
Affirmed.
Sean A. appeals orders denying his
petition for modification under Welfare and Institutions Code section 388
and terminating his parental rights to his children under section 366.26.
We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Sean is the father of three girls: 11-year-old S.A.,
10-year-old Sierra A., and nine-year-old, Natalia A. (collectively, the
children or girls). In May 2010, the
Agency (Agency) filed petitions on behalf of the children under section
300, subdivisions (b) and (g), alleging the children were at substantial risk
of serious physical harm or illness because of Sean's use of methamphetamine,
alcohol and inhalants, his recent arrest on charges of driving under the
influence and possession of a controlled substance, and their mother's history
of substance abuse and disregard for the children's welfare and support.
The family had 11 child welfare referrals from 2002 to
2010. In February 2010, the Agency
opened a voluntary case plan with Sean after it learned the family was homeless
and the children's mother had left the children with Sean and in turn Sean had
left them with a friend without any provision for support. Sean recently tested positive for
methamphetamine and marijuana. The
children were not attending school regularly.
They were neglected and dirty.
During the children's early years, Sean was arrested for domestic
violence, disorderly conduct, aggravated domestic violence, aggravated robbery,
probation violations and failure to appear.
Before the children were born, Sean was convicted in separate incidents
on charges of felony burglary and misdemeanor burglary.
Sean was arrested on drug charges in July 2010. He enrolled in an outpatient substance abuse
recovery program but was expelled from that program after two weeks.
Starting in August 2010, Sean visited the girls twice a
week. His interactions with them were
positive. The social worker said S.A.,
Sierra and Natalia were sweet girls who got along well with each other. They were well-mannered and did not have
developmental delays or behavioral problems.
Although homeless, Sean was in regular contact with the children and
social worker, and successfully completed a 15-week parenting class. Sean's drug tests in November and December
were negative.
In January 2011, Sean was arrested on an outstanding
warrant. In March, he was arrested for
making criminal threats against his landlady.
A week later, Sean was arrested by a SWAT team for threatening to kill
his landlady and his girlfriend, domestic violence and committing a felony
while on bail. He admitted to drinking,
inhaling aerosol spray and breaking items in a room he was renting. In April, Sean was arrested on robbery
charges. He was incarcerated until June,
when he was released into an inpatient substance abuse recovery program. He was expelled from that program in July.
In September, the court terminated reunification services
and set a section 366.26 hearing. In
January 2012, the juvenile court continued the section 366.26 hearing to allow
the Agency to consider alternative permanency plans for the children, who were
considered difficult to place for adoption because of their ages and sibling
bonds.
Sean was incarcerated from early September 2011 to late
February 2012. He entered a substance
abuse recovery program in March, secured full-time employment in April and
rented two bedrooms in a home in June.
At the end of July, Sean filed a section 388 petition seeking the
children's return to his care under a plan of family maintenance services.
The Agency reported that Sean successfully completed his
substance abuse recovery program but was not enrolled in an aftercare
program. He had recently received a
promotion at work. The Agency verified
that Sean had a home for the children.
When the children learned that Sean was asking the court to place them
in his care, S.A.
said she would like to live with her father but worried he would continue
"to drink and do drugs and fight."
She did not believe that she and her sisters would be safe in their
father's care. Sierra and Natalia shared
S.A.'s
concerns. The social worker recognized
Sean's progress but questioned whether his circumstances were sufficiently
stable to allow the children to safely return to his care.
At the hearing on the section 388 petition, after reading
and considering the entire record and hearing argument, the juvenile court
found that returning the children to Sean's care would place them at great risk
of harm due to Sean's lengthy criminal and substance abuse history. The court denied the section 388 petition without
an evidentiary hearing.
The section 366.26 hearing was heard on September 12 and
13. The juvenile court admitted the
Agency's reports in evidence and heard testimony from Jennifer Kadas, the
children's adoptions social worker; Laura H., a family friend; and Sean. The court accepted the stipulated testimony
of Drew Cabral, M.S.W., an investigator with the Dependency Legal Group, and
each of the children.
Kadas testified that the children consistently asked to
visit their father. Adoption was in
their best interests provided they could continue to visit Sean. Visitation with their father was in their
best interests only if he remained sober.
Kadas would not have selected an adoptive family for the girls if that
family would not allow them to visit Sean.
The girls first met the prospective adoptive parents in August. After the visit, S.A.
gave permission to Kadas to proceed with the adoption. All the visits between the children and the
family had been positive.
In her reports, Kadas said Sean obviously loved his
children but his relationships with his children were disrupted by his
substance abuse, criminal activity and incarceration. Another social worker characterized Sean's
relationship to the children as a "friendly visitor." Kadas said Sean comforted the children and
showed he was concerned about their well-being during visits. However, in view of children's limited and
disrupted relationships with Sean, Kadas believed the children would gain greater
benefit from the permanency and stability of adoption than they would from
maintaining the parent/child relationship in a less stable permanency plan.
Laura H. testified Sean and the girls lived with her for
three or four months in 2009. Their
mother was in and out of the home. The
girls were "daddy's girls" and went exclusively to him for their care
and needs.
Sean testified he talked to each girl every day. He bought clothes and school supplies for
them. The girls were always happy to see
him. When he was incarcerated, he telephoned
and sent letters to them. The girls
would write back. Sean said he loved his
children and cared about them. He had
been clean and sober since April 15,
2011.
Cabral observed a visit between Sean and the children on
August 14. He reported that all
interactions between the children and their father were appropriate. They interacted happily and often. Sean showed good communication skills with
his children. They listened to his
instructions and did not argue with him.
Sean often praised them and showed good reflective listening
skills. The children appeared to be very
attached to him.
In stipulated testimony, S.A.
stated: "If I could live with
anyone in the world, I would live with [current foster mother] because I would
be able to keep seeing my dad and the family that wants to adopt me. [¶] My second choice is to live with my
dad. I have heard that I am going to
move in with the family that wants to adopt me.
My dad will always be my dad and that will never change. [¶] . . . If I were in
charge of setting up visits with my dad, I would see him two times a week, once
on Tuesday and once on Saturday. [¶] I
do not know if I want to be adopted. I
am confused about the idea of adoption because the family that wants to adopt
me is nice, but my dad wants us to live with him. . . ."
Sierra stated:
"If I could live with anyone in the world, I would live with my
dad. I feel safe with my dad. I also like the family that wants to adopt
me. [¶] I want to be adopted, and I want
to keep seeing my dad. I see my dad
every Tuesday and that is enough. If I
could not visit my dad next week, I would be a little bit sad."
Natalia stated:
"If I could live with anyone in the world, I would live with my
dad. My dad is my first choice because
he bought us bikes, and because he has been there since I was born. [¶] I see my dad two days a week, and I would
feel kind of sad if my dad had to cancel a visit." "If I am not able to live with my daddy,
I want to be adopted by [the prospective adoptive parents]." "My visits with [them] are good. They showed me the dog they will give me if
they adopt me, and we have gone to Boomers."
The juvenile court said the case was difficult. The children had a significant emotional
attachment to their father. There was no
doubt they loved him. However, they did
not fully trust him to continue to do well.
The court said the father's history showed that "when [he] fell
back, he fell back hard, and it wasn't just using over a weekend." His lapses were very serious.
In weighing the benefits of adoption against maintaining
the quality and strength of the parent/child relationships, the juvenile court
said a plan of long-term foster care would expose the children to the
possibility of separation and multiple placements. With respect to guardianship, the court had
handled many cases in which guardians requested termination of guardianship
when their wards became teenagers, and it could not disregard that experience
in making its decision. Here, the
children had the opportunity to have a permanent home with the representation,
which the court had no reason to doubt, the children could have continued
contact with their father as long as he did well. The court found that the benefits of adoption
outweighed the continuation of the parent/child relationships and terminated
parental rights.
DISCUSSION
I
Juvenile Court Did Not Abuse Its Discretion When It Denied
Section 388 Petition
Sean
contends the juvenile court erred when it denied his section 388 petition. He asserts he showed changed circumstances
and proved it was in his children's best interests to return to his care or
alternatively, to reinstate reunification services. Sean also claims the court erred when it did
not hold an evidentiary hearing on the section 388 petition. He states because the erroneous denial of the
section 388 hearing "infected" the section 366.26 hearing, reversal
of the findings and orders under section 388 requires reversal of the findings
and orders under section 366.26.
Under
section 388, a parent, interested person or the dependent child (generically,
petitioner) may petition the court to change, modify or set aside a previous
order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petitioner requesting the modification
has the burden to show a change of circumstances or new evidence, and that the
proposed modification is in the child's best interests. (In re
Jasmon O. (1994) 8 Cal.4th 398, 415; Cal. Rules of Court, rule
5.570(e).)
"The parent need only make a prima facie showing to
trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th
295, 310 (Marilyn H.); In re Hashem H. (1996) 45 Cal.App.4th
1791, 1798-1799; Cal. Rules of Court, rule 5.570(a).) "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.).)
The court must liberally construe the petition in favor of its
sufficiency. (Marilyn H., at p.
309.)
We review a denial of a hearing on a modification petition
for abuse of discretion. (Zachary G., supra, 77 Cal.App.4th at p.
808.) While the abuse of
discretion standard gives the trial court substantial latitude, "[t]he
scope of discretion always resides in the particular law being applied, i.e.,
in the 'legal principles governing the subject of [the]
action . . . .'
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.)
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.) Here, the record shows that Sean had a
significant and protracted history of substance abuse, crime and
incarceration. His personal
relationships were afflicted with drug use and domestic violence. His children were neglected. They were aware of his substance abuse and
arrests. Sean left the children in the
care of a drug addict for two months without adequate provision for support. During the reunification period, Sean was
expelled from two substance abuse recovery programs and drug court. He was arrested approximately six times for
robbery, possession of controlled substance, possession of drug paraphernalia,
driving under the influence, felony with a weapon and making criminal
threats. One incident prompted a SWAT
team response. He was incarcerated for
approximately nine months during the children's dependency proceedings.
After his
release from jail in February 2012, Sean took positive steps to stabilize his
circumstances. In the four months prior
to the section 388 hearing, Sean entered and completed a substance abuse
recovery program, participating in a variety of supportive services. He obtained full-time employment, secured
appropriate accommodations and found school and after-school programs for the
children. Sean's treatment counselor
said Sean was a model client. He was
promoted at work.
In evaluating whether the petitioner has met his or her
burden to show changed circumstances, the juvenile court should consider a
number of factors, including: "(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." (
Despite
Sean's commendable efforts to stabilize his circumstances following his release
from jail, the juvenile court could reasonably conclude that the evidence,
viewed most favorably to Sean, would not sustain a favorable decision on the
petition. (Zachary G., supra, 77
Cal.App.4th at p. 806.) In assessing the
seriousness of the problems which led to the dependency and the reason for any
continuation of those problems, the juvenile court could reasonably conclude
those problems resulted from multiple factors, including Sean's abuse of drugs,
alcohol and other substances, his volatile relationships with women who were
also using drugs, his criminal activities and his inability to recognize how
his poor choices affected his children.
Sean's long history of substance abuse and crime, and his continued
problems during the reunification period, support a finding that his problems
were not easily removed or ameliorated.
(Kimberly F.,
Under
section 388, subdivision (a), the focus of a petition for modification is on
whether the petitioner has shown a legitimate change of circumstances. The juvenile court reasonably
concluded that Sean had not successfully resolved or ameliorated his problems
to the degree necessary to provide a safe and stable home for his
children. (Kimberly F., supra, 56
Cal.App.4th at p. 532.) This finding is supported by S.A.'s statement that
although she would like to live with her father, she was concerned that he
would continue to drink, do drugs and fight. She did not believe that she and her sisters
would be safe in his care. The social
worker said although Sean had made progress, his circumstances were not
sufficiently stable to allow the children to safely return to his care.
The court is required to hold an evidentiary hearing only
if the facts alleged at
the hearing would sustain a favorable decision on the petition. (Zachary G., supra, 77 Cal.App.4th at p. 806.)
Here, the juvenile court reasonably concluded that the evidence of
Sean's progress in the four months preceding the section 388 hearing was not
sufficient to sustain a favorable decision.
We conclude the court did not abuse its discretion when it denied Sean's
section 388 petition without a full evidentiary hearing and proceeded to a section
366.26 hearing.
II
A
Legal
Framework for Termination of Parental Rights
At
a section 366.26 hearing, the court may select one of three alternative
permanent plans for the dependent child—adoption, guardianship or long-term
foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the child is adoptable, 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; Zachary G.,
A finding of adoptability requires clear and
convincing evidence the
child is likely to be adopted within a reasonable time. (In re
Zeth S. (2003) 31 Cal.4th 396, 406 (
(c)(1).) If the court determines that the
child is adoptable, the court is required to terminate parental rights unless
the parent shows that termination of parental rights would be detrimental to
the child under one of the exceptions listed in section 366.26, subdivision
(c)(1)(A) and (B). (In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
One
of those exceptions applies when a parent proves that he or she has
"maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) This
court has interpreted the phrase " 'benefit from
continuing . . . the relationship' " to mean "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.).) 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." (Ibid.)
determines
substantial evidence from which the court could find clear and convincing
evidence that the child was likely to be adopted within a reasonable time, and
for substantial evidence to support the juvenile court's finding the child will
not be greatly harmed by termination of parental rights. (In re
Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562; Zeth S., supra, 31 Cal.4th at
p. 406.) If the findings are supported
by substantial evidence, the reviewing court must affirm the juvenile court's
rejection of the exceptions to termination of parental rights. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
B
Is Substantial Evidence to Support the Court's Finding the Beneficial
Parent/Child Relationship Exception Did Not Apply
Sean contends the
juvenile court erroneously terminated parental rights when the evidence showed
the children were fiercely and beneficially bonded with him. He objects to the Agency's characterization
of his relationship with the children as that of a "friendly
visitor." Sean points out that the
finding of no harm to the children was premised on the adoptive family's
unenforceable promise to allow the children to have continued contact with him. He also contends the court erred by refusing
to consider a plan of guardianship for the children. Sean argues adoption is inappropriate because
he and his children have maintained strong relationships through regular
contact and visitation, despite his personal failures and shortcomings.
We
are not persuaded by the Agency's argument Sean was merely a "friendly
visitor" to the children. The
juvenile court found that the children loved their father and had a
significant emotional attachment to him.
their father, missed him and wanted to return to his care. That is not the end of the analysis, as Sean
contends. Where the parent has met the
requirements of section 366.26, subdivision (c)(1)(B)(i) on its face, the court must then balance
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. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Sean
spent the reunification period using drugs, committing crimes―some
violent―and serving time. His
criminal history dated to 1998, with approximately 11 arrests occurring after
one or more of the children were born.
Sean had a history of poly-substance abuse. He repeatedly became involved with women who
had substance abuse problems of their own and their relationships were volatile
and abusive.
In reaching its decision, the juvenile court was not
required to ignore Sean's unstable history.
This is not, as Sean argues, imposing elevated reunification standards
to determine whether the beneficial parent/child relationship exception
applied. Rather, a parent's
circumstances necessarily affect the nature and quality of the parent/child
relationship. Sean was arrested
approximately six times in 2011. Natalia struggled emotionally after learning
that he was in jail. S.A. loved her
father but did not trust him to remain sober or nonviolent. Her sisters agreed.
In balancing the strength and quality of the
children's relationships with Sean, the juvenile court made a difficult
decision based on the practical realities of the children's circumstances. The children had an opportunity to have a
stable, secure home with new, adoptive parents.
The prospective adoptive parents were willing to allow the children to
have continued contact with their father.
The juvenile court was concerned that a plan of long-term foster care
would lead to multiple―and possibly separate―placements for the
children. Although guardianship is a
legally viable permanent plan, the children's foster mother was only willing to
assume guardianship of the children for two years. The children did not want to live with their
paternal grandmother. The children's
initial placement with their paternal grandfather and his wife lasted only four
days before their grandfather asked the social worker to remove them. He did not want to adopt the children. From his initial refusal to continue to care
for the children and his lack of interest in adoption, we draw the reasonable
inference the paternal grandfather was not willing or able to provide a stable,
permanent home to the children through guardianship or, if he were, the
guardianship would prove to be unstable.
The juvenile court is not required to ignore the
practical realities of a child's circumstances when it determines whether the
child would be greatly harmed by termination of parental rights. Here, in view of Sean's history of
instability, crime, repeated arrests and incarceration, drug use, domestic
violence and child neglect, the juvenile court could reasonably conclude that
despite the children's significant emotional attachment to their father, the
parent/child relationship
did not promote the children's well-being to such a degree as to outweigh the
well-being they would gain in a permanent home with new, adoptive parents. (Autumn
H., supra, 27 Cal.App.4th at p. 575.) Further, the children's affection for the
prospective adoptive parents and willingness to allow the adoption to proceed
supports the finding they would not be greatly harmed by termination of
parental rights. (Ibid.)
DISPOSITION
The findings and orders are
affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
name="_ftn1" title="">[1] All further statutory references are to the Welfare and
Institutions Code.
name="_ftn2" title="">[2] The children's mother did not actively participate in their
dependency proceedings and does not appeal.
