In re T.A.
Filed 1/23/13 In re T.A.
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NOT TO BE PUBLISHED IN OFFICIAL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opinion has not been certified for publication or ordered published for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
In re T.A., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and
Respondent,
v.
M.S.,
Defendant and
Appellant.
G047384
(Super. Ct.
No. DP019578)
O P I N I O
N
Appeal from orders of
the Superior Court
of
County, Dennis J. Keough, Judge. Affirmed.
Pamela Rae Tripp, under
appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County
Counsel, and Karen L. Christensen,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the
Minor.
M.S. (mother) appeals
from the court’s orders denying her petition for modification (Welf. & Inst.
Code, § 388; all further statutory references are to this code) and terminating
her parental rights to her now almost
five-year-old son, T.A. (the child). She
contends the court abused its discretion in summarily denying the petition
without a hearing and finding the benefit exception under section 366.26,
subdivision (c)(1)(B)(i) inapplicable.
Finding no error, we affirm.
FACTS AND
PROCEDURAL BACKGROUND
Due to mother’s drug and
alcohol problems, the child was declared a dependent in June 2010 when he was
two years old. Mother initially received
reunification services but in November “reverted back to her old behaviors of
missing visits†without 24 hours’ notice and in December was jailed for failing
to pay her DUI fines and complete her program.
Mother did not appear capable of completing her case plan or DUI program
and seemed more concerned about her DUI than reunifying with the child. At the contested six-month review hearing,
the court terminated reunification services at the recommendation of
(SSA) and set a section 366.26 permanency hearing. It thereafter summarily denied mother’s
section 388 petition and declared the paternal grandparents the child’s legal
guardians.
Mother petitioned this
court for relief from the order denying her section 388 petition. In In
re T.A. (Nov. 15, 2011, G045597) [nonpub. opn.], we affirmed the order
denying the section 388 petition because although mother discussed at length
her changed circumstances, she had not shown the requested change would be in
the child’s best interests. (
388 petition, the child had been in the paternal grandparents’ care for 16
months. Although designated as the
child’s legal guardians, they intended to adopt him once they resolved the
paternal grandfather’s retirement circumstances. The child was doing well in their care and
had ‘an attachment with [them] that is not displayed
with . . . mother.’
He does not ask for mother or mention her and has no problem ending
visits.†(Id. at p. 7.)
In January 2012, SSA
reported the paternal grandparents wanted to adopt the child, whose behavior
had “greatly improved†after he was placed with them. He appeared “happy and healthy†in their care
and had a “strong attachment†to them, notwithstanding being diagnosed with a
mild case of “[r]eactive [a]ttachment [d]isorder.†Mother had been visiting the
child regularly for two hours twice a week and was appropriate, but the child
sometimes did not want to hold her hand, be carried,
“touched . . . or have anything to do with her,†and
occasionally spoke rudely to her. SSA
believed the current plan of legal guardianship was no longer appropriate and
proposed a section 366.26 hearing be scheduled.
The court agreed and set the hearing.
In the report prepared
for the permanency hearing, SSA recommended the child be found adoptable and
mother’s parental rights be terminated.
The child called the paternal grandparents “nana and papa†and
interacted with them in a way that showed he was attached to them. Mother continued to visit regularly but the
child began resisting and crying when picked up for visits, saying he did not
“‘want to see mommy.’†He was “distant
and nonresponsive†to mother and seemed more interested in being with the
paternal grandparents and his friends than visiting with mother.
The hearing was
continued and SSA provided an addendum report noting that for the last month
the child had been verbalizing his desire not to see mother and, although he
did go to the visits, he hid behind the visitation monitor and stated he wanted
“‘to go home to nana.’†It was continued
again after mother filed a section 388 petition in May 2012, requesting the
child either be returned to her care, a 60-day trial return to begin
immediately, or more reunification services.
Mother’s petition
alleged changed circumstances and attached, among other things, documentation
purportedly showing she had completed or was participating in various
programs. She also submitted visitation
notes from August 2011 to July 2012.
SSA reported mother had
continued to regularly visit the child.
At times, the child hugged mother, held her hand, called her “mama,â€
kissed and said he loved her, and was affectionate. Other times, the child said he preferred
“‘nana’s milk’†or wanted “‘to go with my nana,’†and that he did not “‘like
[or want] mama.’†Additionally, after
mother spanked the child in early July 2012 for running out to an ice cream
truck, the child’s behavior regressed and he began hiding during therapy
sessions, peeing on his bedroom floor, being more whiny, and throwing tantrums,
which had stopped before the incident.
When SSA met with the child at his current placement and asked how the
visits with mother were going, the child ran and hid in his room and put his
head in the corner.
After a continuance for
additional documentation, the court summarily denied the section 388 petition,
concluding mother had not demonstrated changed circumstances or that the
requested change would be in the child’s best interest. At the subsequent contested section 366.26
hearing, mother testified she had consistently visited the child during the
last year, missing only twice. She
brought him toys and healthy food, read to him, took him to the bathroom,
disciplined him, and allowed him to play with her cell phone. The child knew she was his mother and was
bonded to her because he “recognize[s] [her] out of a crowd†and “a child has a
sense of knowing who his parent is.†The
visits were not always perfect but there were many good ones. Although the child was not always
disappointed when visits ended, there were instances when he was. If mother was denied future visitation, the
child, despite being too young to understand now, would in the future know she
was gone and not forgive her.
Mother did not believe
the paternal grandparents would allow her continued contact if her parental
rights were terminated because shortly before Christmas they had closed the
door in her face when she tried to talk to them about visitation and had hung
up on her prior to that. They did not
allow her to see the child on his fourth birthday, Thanksgiving or Christmas.
Regarding the incident
before Christmas, the paternal grandfather testified he had asked her to leave
because she was talking about visitation in front of the child and voices were
raised. The child had a good visit with
mother and when they returned, he told mother future contact was up to
SSA. If parental rights were terminated,
he believed it “would be best for†the child to allow contact with mother.
After the parties
stipulated the child was adoptable, the court found mother had not sustained
her burden of establishing the benefit exception to the termination of parental
rights. Because the content of the
visits were not so rich as to outweigh the child’s interests in permanency, the
court terminated parental rights.
DISCUSSION
Section 388 Petition
Mother contends the
court erred in summarily denying her section 388 petition because the
documentation she provided, combined with SSA’s reports, sufficed under a prima
facie standard to entitle her to a full evidentiary hearing. We disagree.
Under section 388,
subdivision (a) “[a]ny parent . . . may, upon grounds of
change of circumstance or new evidence, petition the
court . . . to change, modify, or set aside any order of
court previously made . . . .†The petition “must be liberally construed in
favor of its sufficiency†(Cal. Rules of Court, rule 5.570(a)) and “[t]he
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). “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 child’s best interests will be promoted by the proposed change of
order, the dependency court need not order a hearing. [Citation.]
We review the juvenile court’s summary denial of a section 388 petition
for abuse of discretion.
[Citation.]†(
246, 250.)
After reunification
services have been terminated, dependency proceedings focus on providing a
child with permanency and stability (Kimberly
H. v. Superior Court (2000) 83 Cal.App.4th 67, 71-72), which “outweigh[s]
any interest mother may have in reunification.
[Citation.]†(
child’s best interest is to remain in his or her existing placement. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
“To rebut that presumption, a parent must make some factual showing that
the best interests of the child would be served by modification.†(In re
Angel B. (2002) 97 Cal.App.4th 454, 465.)
Mother has not done that and thus it is unnecessary to address her
primary argument she demonstrated changed circumstances sufficient to entitle
her to an evidentiary hearing.
Mother contends her
“section 388 petition was tailored to meet the best interests of the child†by
asking alternatively the child “be returned to
her, . . . additional time for services be allowed, or that
the court modify the visitation order to include overnight visits,†which gave
“the court a wide latitude in fashioning a modification which would be in the
child’s best interests.†But she herself
acknowledges it would not be in the “child’s best interest to be returned to
[her] abruptly after living with his grandparents for so long.†And she offers no reason why it would be in
the child’s best interest for her to receive additional services or overnight
visits. Mother does argue “she was
continuing to get closer and closer to [the child] through her regular
visits. They had a very affectionate
relationship. He called her mommy or
mama and thus was clear on who his mother was.
She was not just a friendly visitor, she was mommy.†This, however, shows only that mother may
have had a bond with the child. It does
not demonstrate “a delay in permanency†by reopening reunification services or
granting overnight visits was in the best interests of the child, whom the
paternal grandparents had cared for over half of his life and planned to
adopt. (In re A.S. (2009) 180 Cal.App.4th 351, 358 [section 388 petition
properly denied where no reason provided why continuing dependency proceedings
and delaying permanency would benefit the children]; In re Edward H. (1996) 43 Cal.App.4th 584, 594 [concluding allowing
a parent “additional six months of reunification to see if [she] would and
could†do what was necessary to regain custody “would not have promoted
stability for the children and thus would not have promoted their best
interestsâ€].) Because the liberally construed
allegations do not sustain a favorable decision on the section 388 petition,
mother was not entitled to an evidentiary hearing and no
Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Benefit Exception
Once the court
determines under section 366.26 a child is likely to be adopted, it “shall
terminate parental rights†(§ 366.26, subd. (c)(1)) and order the child placed
for adoption unless it “finds a compelling reason for determining that
termination would be detrimental to the child†because of one of the statutory
exceptions. (§ 366.26, subd.
(c)(1)(B).) One exception is where a
“parent[] ha[s] maintained regular visitation and contact with the child and
the child would benefit from continuing the relationship.†(§ 366.26, subd. (c)(1)(B)(i).) The parent has the burden of proving the
exception applies. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
A split of authority
exists on whether an abuse of discretion or substantial evidence standard of
review applies to a decision rejecting one of the adoption exceptions. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314 and cases cited therein.) Bailey
J. considered both standards and adopted an analysis we find
persuasive. Because whether a parent has
shown a beneficial relationship is a question of fact, we review this for
substantial evidence (ibid.),
considering it in the light most favorable to the decision (
567, 576). Regarding whether the
parent-child relationship is a “compelling reason for determining that
termination would be detrimental†(§ 366.26, subd. (c)(1)(B)), the court
exercises its discretion and we thus use an abuse of discretion standard (
Here, even assuming the existence of a beneficial relationship, mother
has not shown the court abused its discretion in concluding the relationship
did not outweigh the benefits adoption would bring.
To prove that the
beneficial parental relationship exception applies, it is not enough to show
“some benefit to the child from a continued relationship with the parent, or
some detriment from termination of parental rights.†(In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) The parent must show that the parental
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.†(
“When the benefits from a stable and permanent home provided by adoption
outweigh the benefits from a continued parent/child relationship, the court
should order adoption.†(
Factors courts consider in determining the applicability of the parental
relationship exception include “‘[t]he age of the child, the portion of the
child’s life spent in the parent’s custody, the “positive†or “negative†effect
of interaction between parent and child, and the child’s particular
needs . . . .’
[Citation.]†(
1200, 1206.)
Here, the child was four
and a half years old at the time of the permanency hearing and had spent less
than half of his life in mother’s custody.
Mother’s interaction with the child never progressed beyond a few hours
a week of monitored visitation. (
514, 523, disapproved of on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 414 [showing required for
benefit exception “‘difficult to
make . . . where . . . parents
have . . . [not] advanced beyond supervised
visitation’â€].) Mother acknowledges this but argues she and the child “had
established a loving and bonded relationship†over the last two years and that
the “visitation notes . . . revealed increasing displays of
love and affection between them over time.â€
But although mother did have some positive visits, the child began
resisting the visits four months before the section 366.26 hearing, crying and
stating he did not “‘want to see mommy.’â€
He also interacted less with mother, did not hold her hand when walking
to the car, and stated he did not “‘like [or want] mama.’†Moreover, one visit in which mother had
spanked the child had the negative effect of causing the child’s behavior to
regress, exemplified by his hiding during therapy sessions, peeing on his
bedroom floor, being more whiny, and throwing tantrums—all of which had
previously stopped before the incident.
When SSA subsequently met with the child at his current placement and
asked how the visits with mother were going, the child ran and hid in his room
and put his head in the corner.
By contrast, the child
appeared “happy and healthy†in the care of the paternal grandparents, who
wanted to adopt him, met all of his needs, and provided him “with a safe,
stable nurturing home.†He had a “strong
attachment†to them, notwithstanding his diagnosis of mild reactive attachment
disorder and referred to them as “nana and papa.†And during visits with mother, the child
indicated preferences for “‘nana’s milk’†or that he wanted “‘to go with my
nana.’†Under these facts, the court did
not abuse its discretion in concluding the contents of the visits were not “so
rich†as to outweigh the child’s “interests in permanency.â€
Mother notes courts have
recognized the beneficial parental exception does not require proof the child
has a “primary attachment†to the parent or that the parent maintained
day-to-day contact with the child. But
the court did not rely on the absence of primary attachment or day-to-day
contact. Moreover, the three cases
mother cites all recognize the exception nevertheless requires the beneficial
nature of the relationship be of such degree “that terminating parental rights
would be detrimental to the child and outweighs the child’s need for a stable
and permanent home that would come with adoption.†(In re
Casey D. (1999) 70 Cal.App.4th 38, 51; see also In re S.B. (2008) 164 Cal.App.4th 289, 301; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, 1538.) The evidence in this case does not rise to
that level. The exception does not allow
a parent who “failed to reunify with an adoptable
child . . . [to] derail an adoption merely by showing the
child would derive some benefit from
continuing a relationship maintained during periods of visitation with the
parent. [Citation.]†(In re
Angel B. (2002) 97 Cal.App.4th 454, 466.)
Mother asserts she
believed “it would be detrimental to [the child], over time, if the
parental-child relationship were permanently severed.†(Italics omitted.) But that is mere speculation and does not
show the court abused its discretion in concluding the benefits of adoption
outweighed mother’s bond with the child.
Mother maintains
“[t]here was no real need to change the permanent plan of guardianship†since
the child’s “needs were being well met by the grandparents and [he] was
enjoying fully the benefits of his relationship
with . . . mother.â€
But she acknowledges she “had been unable to regain custody†and may
“never [b]e able to do so.†In such
cases, “[t]he Legislature has decreed . . . guardianship is
not in the best interests of children who cannot be returned to their
parents. These children can be afforded
the best possible opportunity to get on with the task of growing up by placing
them in the most permanent and secure alternative that can be afforded
them.†(In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419; see also
Cal.App.3d 240, 251 [unlike adoption, guardianship is “not irrevocable and thus
falls short of the secure and permanent placement intended by the
Legislatureâ€].) The child, who could not
be returned to mother, deserved to have his custody status promptly resolved
and his placement made permanent and secure.
In her reply brief,
mother cites and analogizes this case to In
re Scott B. (2010) 188 Cal.App.4th 452 for the first time. The court there found compelling reason to
reverse an order terminating parental rights where mother had consistent weekly
visits, and a court-appointed special advocate found disrupting the close
mother-daughter relationship would be detrimental to a nine-year-old
developmentally disabled and emotionally vulnerable child who repeatedly
insisted on living with her mother. (
from a psychological expert or other disinterested person suggesting
termination of parental rights would be detrimental. The child’s behavior had “greatly improvedâ€
after being placed with the paternal grandparents and he had no emotional
fragility, “significant medical or developmental concerns.†He also did not want to visit or see mother
at times, much less insist on living with her.
Nor was there evidence the child was adversely affected by the paternal
grandparents’ purported refusal to allow visits or that he would suffer
detriment from any future interruption in visitation. The compelling reasons in
we will not disturb a court’s finding the parental benefit exception
inapplicable on the particular facts presented, where, as here, no abuse of
discretion has been shown.
DISPOSITION
The
orders are affirmed.
RYLAARSDAM,
J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
