In re S.H.

 

 

 

 

 

 

 

 

 

 

 

Filed 5/28/13  In re S.H. CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Shasta)

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>

In re S. H., a Person Coming Under the Juvenile Court Law.	C072380
SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY,                           Plaintiff and Respondent,               v.   S. H. et al.,                           Defendants and Appellants.	(Super. Ct. No. 11JVSQ2882301)

 

 

            Margaret W.
and Shawn H., parents of the minor, appeal from orders of the juvenile court
denying mother’s petition for modification and terminating their parental
rights.  (Welf. & Inst. Code,
§§ 366.26, 395 [further undesignated statutory references are to the
Welfare and Institutions Code].)  Mother
contends the court abused its discretion in denying the petition for
modification and erred in failing to find the parental relationship exception
to termination of parental rights applied. 
Father argues that if the order terminating mother’s parental rights is
reversed, the order terminating his parental rights must also be reversed.  (Cal. Rules of Court, rule 5.725(a)(2).)  We affirm.

FACTS

            The
Shasta
County Health and Human Services Agency (Agency) filed a petition to detain
four-month-old S.H. due to parental neglect and failure to comply with a
voluntary plan.  Both parents have mental
health and substance abuse issues that resulted in neglect of the minor’s care
and led to the minor’s being diagnosed with failure to thrive.  The court ordered the minor detained in March
2011.

            The
court sustained the petition in June 2011 and ordered the parents to
participate in reunification services. 
After 12 months of services, mother had completed her plan but did not
participate in aftercare services. 
Father, who was dropped from his substance abuse treatment program in
November 2011 did not reenroll until January 2012 and had a positive test in
March 2012.  The juvenile court
terminated services in June 2012 and set a selection and implementation
hearing.

            The
report for the selection and
implementation hearing stated that after voluntary, interim, and
reunification services, the parents were unwilling or unable to accept
responsibility for their actions, address their issues, or maintain
sobriety.  The parents failed to show
consistent and positive behavioral changes and did not show an ability to meet
the minor’s needs.  The parents visited
regularly and there were no concerns about the visits.  The minor was healthy, happy, and
developmentally on target, although small for her age.  She was in her fourth placement, a prospective
adoptive placement, and demonstrated a secure attachment to her current
caregivers.  The social worker visited
the minor in her foster home and had observed the minor going to the foster
parents seeking attention, reassurance, and assistance and responding to their
consistency and limit setting.  The
minor’s failure-to-thrive issues had resolved. 
The Agency assessed that in the unlikely event the current caretakers
were unable to adopt, the minor was highly likely to be adopted by another
family.  The parents consistently visited
but had not shown they could safely parent the minor.  Because the minor needed permanency, the
agency recommended termination of parental rights.

            In
September 2012 mother filed a petition for modification seeking return of the
minor and family maintenance services and alleging as changed circumstances
that she was back on Xanax, a drug she had taken in the past that worked for
her.  Medi-Cal had stopped paying for the
medication, but she had recently completed a treatment authorization request
(TAR) and was able to get the drug.  The
petition further alleged that the modification was in the minor’s best
interests because mother had a strong parent-child bond with the minor and had
completed her case plan.  In support of
the petition mother attached copies of visit logs that showed the minor was happy
and engaged in visits and that the parents interacted with the minor, although
they occasionally failed to maintain boundaries.  The minor showed no distress at the end of
visits.

            At
the hearing, mother testified that after services were terminated, father moved
out of the home.  The medication she was
taking at that time made her very emotional and she had a hard time coping
without him.  Two weeks after father left
the home, he and mother met to discuss their relationship because mother wanted
her family together and said she could not “be in the home by myself.”  Father then moved back in because mother was
increasingly depressed and “couldn’t handle being by [herself] in the house.”  She said father had completed his substance
abuse classes and was not drinking. 
Mother denied covering up for father’s drinking in the past and said he
lied to her about it.  Mother testified
the only medication that relieved her anxiety symptoms was Xanax, and since
August 2012 she was able to again afford the drug after completing TAR
processing.  Xanax allows her to think,
concentrate, and control her emotions. 
Mother testified she had completed the elements of her plan and was not
currently in any services except visiting the minor.  Mother described the visits as “Great.”  At the beginning of a visit, the minor was
happy and smiling and called the parents “Mommy” and “Daddy.”  Mother said they had fun together during the
visits and she parented the minor when needed.

            Father
did not testify, but his counsel made an offer of proof that father did
continue his substance abuse classes, which were completed in early September
2012, and he has remained clean and sober. 
Further, father would testify he has a Proposition 215 recommendation
and uses marijuana regularly to alleviate pain. 
Father has visited regularly and believes he and mother have a good
parental relationship with the minor and that it would be emotionally
detrimental to sever the relationship.

            As
to the petition for modification, mother argued it was safe to return the minor
home.  Her primary issue was her
medications, and she had stabilized with a return to effective medication.  Further, mother argued the visit logs showed
a significant bond with the minor. 
Father adopted mother’s argument, noting that mother was now stable and
a “different person.”  Minor’s counsel
argued for an extension of services to 24 months.  The court found there had been some change in
mother’s circumstances, but the changes were recent and the long-term results
were unknown.  The court further found
that the visitation logs were not sufficient evidence of a strong bond and that
there was little evidence of a parent-child bond.  The court denied the petition, observing that
the minor needed permanency.

            The
parties submitted on the selection and implementation issues without further
evidence or argument.  The court
terminated parental rights and selected adoption as the permanent plan.

DISCUSSION

I

            Mother
argues the juvenile court abused its discretion in denying her petition for
modification.

            A parent
may bring a petition for modification of any order of the juvenile court
pursuant to section 388 based on new evidence or a showing of changed
circumstances.href="#_ftn1" name="_ftnref1"
title="">[1]  “The parent requesting the change of order
has the burden of establishing that the change is justified.  [Citation.] 
The standard of proof is a preponderance of the evidence.  [Citation.]” 
(In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)  Determination of a petition to modify is
committed to the sound discretion of the juvenile court, and absent a showing
of a clear abuse of discretion, the decision of the juvenile court must be
upheld.  (In re Stephanie M.
(1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993)
21 Cal.App.4th 1057, 1067.)  The
best interests of the child are of paramount consideration when the petition is
brought after termination of reunification services.  (Stephanie M., at p. 317.)  In assessing the best interests of the child,
the juvenile court looks not to the parent’s interests in reunification but to
the needs of the child for permanence and stability.  (Ibid.; In re Marilyn H. (1993)
5 Cal.4th 295, 309.)

            Even
assuming mother’s recent stabilization on her medication established changed
circumstances, mother did not establish that the proposed modification was in
the minor’s best interests.  The
23-month-old minor had been out of parental custody since she was four months
old.  The visitation records showed that
the visits were unremarkable, albeit pleasant, interactions.  At most, visits demonstrated a friendly
visitor relationship.  While the minor
was happy to see her mother and father, she showed no distress at leaving the
visit and no particular bond.  This is
unsurprising given the minor’s tender years and limited interaction with
appellants.  The behavior is in stark
contrast to the minor’s behavior with her current caregivers, where she was
observed actively seeking reassurance, attention, and assistance from her
foster parents.  Moreover, appellants
have a history of instability.  Mother’s
current maintenance on Xanax appeared to have stabilized her for a short period
of time, but that stability depended on maintaining the drug and refraining
from alcohol abuse and other activities that impaired.  Mother had not participated in aftercare and
had a relatively short history of sobriety. 
The court did not abuse its discretion in denying the petition for
modification to return the minor to a home that had only recently shown signs
of stability.

II

            Mother
contends the court erred in failing to find that termination of parental rights
would be detrimental to the minor because the minor would benefit from
continuing the relationship.

            At
the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ â€˜possible alternative
permanent plans for a minor child. . . .  The
permanent plan preferred by the Legislature is adoption.’  If the court finds the child is adoptable, it
must terminate parental rights absent
circumstances under which it would be detrimental to the child.”  (In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1368 [citations omitted].)  There are only limited circumstances that
permit the court to find a “compelling reason for determining that termination
[of parental rights] would be detrimental to the child.”  (§ 366.26, subd. (c)(1)(B).)  The party claiming the exception has the
burden of establishing the existence of any circumstances that constitute an exception
to termination of parental rights.  (>In re Cristella C. (1992)
6 Cal.App.4th 1363, 1373; In re
Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court,
rule 5.725(d)(4); Evid. Code, § 500.)

            After
the court denied mother’s petition for modification, mother submitted the
selection and implementation issues on the same evidence as presented on the
petition for modification.  Mother’s
counsel did not argue termination of parental rights would be detrimental to
the minor within the meaning of any of the statutory exceptions.  (§ 366.26, subd. (c)(1)(B).)  The court did not specifically rule on the
existence of any exception.  Mother now
argues for the first time that the court erred in failing to find the benefit
exception applied to defeat termination of parental rights.  The issue is forfeited for failing to raise
it first in the trial court.  (>In re Christopher B. (1996)
43 Cal.App.4th 551, 558; In re
Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)

            Assuming
the issue is not forfeited, termination of parental rights may be detrimental
to the minor 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).)  However, the benefit to
the child must promote “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 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.”  (In re Autumn H. (1994) 27 Cal.App.4th, 567, 575.)  Even frequent and loving contact is not
sufficient to establish this benefit absent a significant positive emotional
attachment between parent and child.  (>In re Beatrice M. (1994)
29 Cal.App.4th 1411, 1418-1419; In re
Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)

            The
evidence established mother visited the minor regularly.  However, no evidence showed that the minor
would benefit from continuing contact with mother.  The visit logs do not show a “substantial,
positive emotional attachment” that would outweigh the minor’s need for
permanency.  At best, the visit records
showed mother and the minor had a pleasant, playful relationship.  Although the minor played happily with her
parents and clearly enjoyed the visits, the minor showed no distress at the end
of visits and there was little evidence of a parental relationship.  There was no error in failing to find an
exception to the preference for adoption.

            Because
we find no error as to mother, the order terminating father’s parental rights
is also affirmed.

DISPOSITION

            The orders
of the juvenile court are affirmed.

 

 

 

                                                                                                    RAYE                     , P. J.

 

 

 

We concur:

 

 

 

          NICHOLSON              ,
J.

 

 

 

          MURRAY                    , J.