In re Summer B.

Filed 9/26/07 In re Summer B. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed. Request for judicial notice. Denied.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsels, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

Introduction

In April 2005, Summer B. was taken into protective custody by the Orange County Social Services Agency (SSA) shortly after her birth, 10 weeks premature. SSA provided reunification services to Summers mother and biological father for 18 months; at the end of that period, the juvenile court concluded the fathers progress on his case plan had been unsatisfactory, terminated reunification services, and set the matter for a permanency hearing.

Summers father filed a petition under Welfare and Institutions Code section 388, alleging changed circumstances required the juvenile court to modify the order terminating his reunification services. (All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.) The juvenile court concluded the petition did not establish a prima facie showing of changed circumstances or that modifying the previous order would be in Summers best interests, and denied the petition without a hearing. The court then determined Summer was adoptable, no statutory exception applied, and terminated the parental rights of Summers parents. Summers father appealed.

We conclude the juvenile court did not abuse its discretion in denying the section 388 petition without a hearing. The petition did not make a prima facie showing of changed circumstances or that it was in Summers best interests to modify the previous order. Additionally, there was substantial evidence supporting the juvenile courts finding that the parent‑child relationship exception to adoption ( 366.26, subd. (c)(1)(A)) did not apply. Visitation between Summer and her father had not been regular, and there was no evidence Summer would benefit from maintaining a relationship with her biological father. We therefore affirm.

Statement of Facts and Procedural History

Summer was born prematurely, and was taken into protective custody by SSA shortly thereafter. Summers mother, Stephanie B. (mother), is moderately mentally retarded, and unable to care for herself or to maintain a clean and safe residence. Mothers case manager at the regional center opined that mother is unable to care for herself on a daily basis, and did not have the developmental capacity to care for a child. Mother also had an unresolved history of substance abuse, and had failed to complete a court-ordered drug diversion program. Michael D. (father), who was confirmed as Summers biological father through genetic testing also had an unresolved substance abuse problem, and was residing in a locked recovery home at the time of Summers detention. Father also had an extensive criminal history, which included three convictions for possession of a controlled substance, and one conviction for having sex with a minor 14 years of age or younger.

The juvenile court sustained the allegations of SSAs petition, and declared Summer to be a dependent child of the court, pursuant to section 300, subdivision (b) (failure to protect). At the dispositional hearing in June 2005, the juvenile court found by clear and convincing evidence that returning Summer to the custody and care of her parents would be detrimental to her well‑being. Reunification services were authorized for mother and father. Fathers case plan required him to follow all conditions of probation and parole, avoid illegal drugs, maintain a stable and suitable residence for himself and Summer, complete a parenting class and a drug treatment program, and participate in random drug testing and in a 12-step program.

Summer was placed with her maternal great-aunt, Phyllis R. Father was arrested and incarcerated in connection with a probation violation in June 2005. Father maintained contact with SSA while incarcerated, and had in‑custody visits with Summer. Father resumed twice‑weekly visits with Summer after being released from custody in December 2005, which were supervised by Phyllis. Phyllis reported that father was always loving and appropriate toward Summer. Father also contacted Phyllis regularly to inquire about Summer.

Father attended parenting classes, obtained a job, and the results of all his drug tests were negative. At the six-month review hearing in February 2006, the juvenile court continued fathers reunification services. The court later amended fathers case plan to require he participate in counseling to address mental health issues, his history of inappropriate boundaries with mother, and his previous sex offense.

Father attended 12-step meetings and began an outpatient drug treatment program. In March 2006, father was diagnosed with bipolar disorder and prescribed psychotropic medication. Father took less than the prescribed dosage of the medication because it made him sleepy during the day. Fathers mental health counselor reported to SSA that she was working with father on stress management and controlling his angry outbursts.

Father continued to visit regularly with and act appropriately toward Summer, despite SSAs requirement that the visits be monitored by a professional monitor or an SSA visitation monitor.

At the 12‑month review hearing in May 2006, the juvenile court found father had made some progress on his case plan, and continued reunification services until the 18‑month review hearing.

Following the 12‑month review hearing, fathers compliance with his case plan and visitation plan became more sporadic. Father cancelled several visits with Summer in June, August, and September 2006. Father missed appointments with his individual therapist and was terminated from the therapy program. Father missed 20 drug tests between May and October 2006. Father missed appointments with SSA, yelled at the social worker, and accused SSA of kidnapping his child. Father was homeless and had left two sober living homes in quick succession. SSA recommended reunification services be terminated due to fathers unsatisfactory progress on his case plan and the deterioration of his emotional stability.

On October 25, 2006, the juvenile court terminated fathers reunification services and set a permanency hearing. Father continued to visit Summer after reunification services were terminated. He participated in a drug treatment program and had steady employment. But fathers therapist reported he still denied having an anger management problem, denied any history of sex crimes, and refused to accept responsibility for Summers dependency.

In April 2007, father filed a section 388 petition, asking the juvenile court to change its order scheduling the permanency hearing and return Summer to fathers custody under a plan of family maintenance services. In support of his petition, father provided a declaration detailing the significant changes in my life over the past several months to become a better person for my daughter and for myself.

On April 11, 2007, the juvenile court determined fathers section 388 petition did not present a prima facie case for the relief requested, and denied it without a hearing. All counsel agreed that, because services had been provided for 18 months, the courts only option with regard to the 388 petition (other than denial) would be an outright release of Summer to father. In response, the court stated, theres no way Im going to have this child go with Mr. D[.] at this time. The court found father was in the process of changing, but that his unstableness and mental health issues had not been resolved at all.

The juvenile court then conducted the permanency hearing. SSAs reports were admitted into evidence, and the court heard testimony from Phyllis, father, and the monitor for fathers visits with Summer. The juvenile court found Summer was adoptable, and that none of the section 366.26, subdivision (c)(1) exceptions applied. The court terminated fathers parental rights to Summer. Father timely appealed.

Discussion

I.

The juvenile court did not abuse its discretion in denying the section 388 petition without a hearing.

Father contends the juvenile court abused its discretion by summarily denying his section 388 petition. To succeed on a section 388 petition, a parent must show changed circumstances establishing that the proposed modification would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The parent seeking modification must make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

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, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Evidence that merely shows a parent is beginning on the road to recovery from his or her relevant problems is not sufficient to warrant a hearing. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610 [parents initiation of drug rehabilitation is not a changed circumstance sufficient to warrant a section 388 hearing].)

We apply the abuse of discretion standard in our review of the juvenile courts decision to deny the section 388 petition without a hearing. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We may not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) The juvenile courts decision will not be disturbed unless it is an arbitrary, capricious, or patently absurd determination. (Id. at p. 318.)

The juvenile courts denial of fathers section 388 petition without a hearing was not an abuse of discretion. The finding that fathers mental health issues had not been resolved was amply supported by the evidence, as set forth ante. Given fathers precarious mental state and his admirable, but not yet complete, recovery from substance abuse, the juvenile court correctly determined modification of the previous order terminating reunification services and setting the matter for a permanency hearing would not be in Summers best interests. There was no error in denying the section 388 petition without a hearing.

II.

Substantial evidence supported the juvenile courts finding the section 366.26, subdivision (c)(1)(A) exception did not apply.

Father contends the juvenile court erred by failing to find the parent-child relationship exception to the termination of parental rights applicable. Section 366.26, subdivision (c)(1)(A) allows the juvenile court to decline to terminate parental rights over an adoptable child if it finds a compelling reason for determining that termination would be detrimental to the child because [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. Father had the burden of proving both prongs of the parent-child relationship exception were satisfied. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 949.) We consider whether substantial evidence supported the juvenile courts determination the parent-child relationship exception did not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424‑425.)

Substantial evidence supported the juvenile courts finding that father had not had regular visitation and contact with Summer under section 366.26, subdivision (c)(1)(A). Father cancelled several visits in June, August, and September 2006. In September, the referral for monitored visitation was terminated because father had missed so many visits.

Substantial evidence also supports the juvenile courts finding that Summer would not benefit from continuing a parent‑child relationship with father. In In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576, the court stated: In the context of the dependency scheme prescribed by the Legislature, we interpret the benefit from continuing the [parent/child] 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 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 parents rights are not terminated. [] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. [] At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent. Social workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court. The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond.

Father failed to show Summer would benefit from continuing the parent‑child relationship. The evidence did not show fathers contacts with Summer continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The juvenile court found, whether or not hes in a parental role. I dont think he meets that burden either. Its more than just visiting and being friendly. Obviously, the child likes him, perhaps loves him, and he obviously loves the child. But to take her out of that situation shes in right now is going to be is wrong. And hes got a heavy burden as far as thats concerned. [] So I dont find that it would be detrimental to the child to be for termination at this point in time. I dont find he has met the burden of that exception [under section 366.26, subdivision (c)(1)(A)]. Fathers relationship with Summer, though loving and appropriate, simply did not rise to the level necessary for the section 366.26, subdivision (c)(1)(A) exception to apply.

III.

Request for Judicial Notice

After briefing on appeal was complete, father filed a request for judicial notice, asking us to take judicial notice of six documents, all of which are a part of the juvenile courts record and were filed after the permanency hearing: (1) a minute order dated June 26, 2007; (2) an SSA detention report dated June 25, 2007; (3) an SSA review report dated July 10, 2007; (4) an SSA review report dated July 24, 2007; (5) an SSA review report dated August 7, 2007; and (6) a minute order dated August 7, 2007. These are the types of documents of which judicial notice may be taken. (Evid. Code,  452, subd. (d).) All of these court orders and SSA reports contain information about Summers placement after the April 2007 permanency hearing. In general, they report that Summer was removed from Phylliss custody for her well-being, and is now in the care of a nonrelative.

None of these documents, however, was before the juvenile court when it entered its judgment terminating fathers parental rights. As the Supreme Court has instructed, consideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights, and the liberal use of such evidence to reverse juvenile court judgments and remand cases for new hearings, would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile courts orders and judgment. (In re Zeth S. (2003) 31 Cal.4th 396, 413.)

The Supreme Court noted that an exception to the rule precluding the consideration of postjudgment evidence to reverse a judgment terminating parental rights might be warranted in the rare and compelling case (In re Zeth S., supra, 31 Cal.4th at p. 399), and identified one such case: [W]here postjudgment evidence stands to completely undermine the legal underpinnings of the juvenile courts judgment under review, and all parties recognize as much and express a willingness to stipulate to reversal of the juvenile courts judgment, an appellate court acts within its discretion in accepting such a stipulation and reversing the judgment. (Id. at pp. 413‑414, fn. 11.)

The present case is not a rare and compelling one under the standard set by our Supreme Court, however. As noted ante, the juvenile court did not commit any legal error in terminating fathers parental rights based on the evidence then before it. (See In re Zeth S., supra, 31 Cal.4th at p. 412.) The evidence of which father asks us to take judicial notice is similar to that which the Supreme Court warned against in In re Zeth S. The evidence contained in the request for judicial notice was not before the juvenile court when it entered its judgment. Whether the evidence is an unsworn statement, as in In re Zeth S., rather than a minute order or SSA report, as here, is not of legal significance under these circumstances. Therefore, we deny fathers request for judicial notice.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

OLEARY, ACTING P. J.

IKOLA, J.

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