In re Taylor Y.

Filed 8/31/09 In re Taylor Y. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order and judgment of the Superior Court of Orange County, Salvador Sarmiento, Judge. Affirmed.

Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

* * *

Sheri T., mother of Taylor Y., appeals from the order of the juvenile court summarily denying her petition under Welfare and Institutions Code section 388;^[1]she claims her petition presented a prima facie case that Taylors best interests would be promoted by further reunification services. The mother also appeals from the judgment terminating her parental rights, claiming the juvenile court should have found adoption to be detrimental due to her beneficial relationship with Taylor. We find no error and affirm.

FACTS

Three-year-old Taylor was detained by the Orange County Social Services Agency (SSA) in October 2004 when her parents were arrested and incarcerated, leaving her with no caretaker. A dependency petition was sustained, alleging the parents had unresolved histories of substance abuse and had never completed a drug treatment program. The juvenile court removed Taylor from parental custody and placed her with her maternal grandmother and stepgrandfather, Deanna and Donald M., who lived in Desert Hot Springs in Riverside County.

The case was transferred to Riverside County. At the six-month review hearing in July 2005, the juvenile court returned Taylor to her mother over the objections of the social worker. The mother had not participated in her case plan and had no means to provide for Taylor; she left the child with the maternal grandparents until September 2005, when she returned to Orange County. The Riverside County social worker reported the mother had ignored her case plan requirements and only drug tested when advised failure to comply would result in immediate removal of the child. The mother also allowed Taylor unauthorized contact with the father, Sheldon Y. The case was transferred back to Orange County in January 2006.

In February 2006, SSA reviewed the status of the case. The mother was unable to maintain stable employment and housing, she failed to notify the social worker of her whereabouts, and she had not participated in the programs required by her case plan. She had at least two positive drug tests and had been involved in criminal proceedings in August or September 2005; she acknowledged stealing money from her employer and was charged with credit card fraud. Despite the mothers difficulties, Taylor was doing well.

In June 2006, the Orange County juvenile court conducted a status review hearing and ordered six more months of family maintenance services. The mother had enrolled in the perinatal program in March 2006; subsequently, however, she was terminated from the program. She and Taylor moved several times, sometimes living with the father in violation of a court order. In December 2006, SSA detained Taylor again after the social worker found a crack pipe in an ashtray in the mothers apartment.

The juvenile court sustained a supplemental petition and placed Taylor back in the maternal grandparents home. It denied further reunification services to the mother and set a permanent plan selection hearing. In January 2007, Taylor was moved to the paternal grandparents home because the maternal grandmother became very ill and was told she did not have long to live. Then in June 2007, the paternal grandfather suffered a serious heart attack, and the paternal grandmother could no longer care for Taylor. The mother had reenrolled in her programs and was progressing, so the juvenile court ordered a 60-day trial release to the mother, which began in late June.

The trial release was initially successful, and the court continued the permanent plan selection hearing several times so the placement could be evaluated. But the mother was terminated again from her drug treatment program, she continued to allow the father to have contact with Taylor, and she lost her job and housing. The social worker removed Taylor from the mother and placed her back with the maternal grandparents.

The permanent plan selection hearing was held in October 2007. Pursuant to stipulation by all parties, the court found termination of parental rights would be detrimental to Taylor due to her beneficial relationship with the mother. The court ordered Taylor into long-term foster care with the specific goal of placement with a relative . . . . Due to the compromised health of both sets of grandparents, SSA was ordered to investigate Taylors adult half sister, Dana C., who lived in Utah, as a placement.

In April 2008, SSA prepared a report for the six-month status review hearing. Dana C. had declined placement and the maternal grandparents now wanted to adopt Taylor. The grandmother gave the social worker a document from her doctor stating her health was not a concern and she was capable of taking care of Taylor. Taylor was doing well in school and liked living with her grandparents. The grandparents named an aunt who lives in Texas as Taylors conservator if something happened to them.

The mother had once again been terminated from her drug treatment program. She called Taylor only half of the time she was allowed. She attended 61% of her monitored visitations with the child of which she was late 81% of the time. She was significantly late, between 20 and 90 minutes. In December, the mother became angry and yelled at the social worker when reminded she could not see the child without a monitor. In January, the mother got into a physical altercation with the maternal grandfather, throwing a water bottle at him hard enough for the bottle to reach the back patio sliding door and screaming and yelling. In February, the social worker monitored a visit and had to admonish the mother when she talked about the domestic violence and infidelity of a person both she and Taylor knew.

The social worker recommended that the court find Taylors placement in long-term foster care no longer appropriate and schedule another permanent plan selection hearing. The juvenile court agreed and set the hearing for July 31, 2008.^[2]

In the report prepared for the July 31 hearing, SSA stated Taylor was thriving in her maternal grandparents home. She finished the first grade in June with strong academic and social skills. Taylor invites her friends over to her house to swim, play, go on outings, and . . . [for] sleepovers.

Taylor had monitored visits with her mother for four hours every other Saturday and monitored telephone calls six days a week. The mother was more punctual for the visits and telephone calls than she had been previously, and the contact between her and Taylor was affectionate and appropriate. During this last reporting period the mother has been cordial and respectful towards the monitors and has accepted feedback regarding appropriate behavior during the visit. The mother has focused on the child and not bringing up the case in front of the child. Taylor enjoyed the visits, although she did not express any desire for more frequent contact. In May, Taylor refused a visit on consecutive weeks because she wanted a free Saturday. She told the social worker, however, she would love to stay here where Im at, but I want to go back with my mom.

Despite the mothers improvement in punctuality, she had not provided evidence of her attendance at a drug treatment program or clean drug tests. She also had an outstanding warrant for a probation violation with a pending jail sentence to serve. The social worker recommended termination of parental rights and adoption.

The permanent plan selection hearing was continued first to September, then to October 2008. SSA reported [t]he mother has been on time to most of her visits . . . . Both the mother and Taylor enjoyed the visits. When asked where she wanted to live, Taylor said I dont know . . . Its too hard. Taylor was assessed as adoptable, and an adoption home study was initiated for the maternal grandparents home.

The mother submitted a report from the Mariposa Women and Family Center (MWFC) dated September 11, 2008, indicating that she had completed the alcohol and drug treatment program. She also submitted a report about her progress in the case plan. When the social worker talked with the MWFC therapist, she discovered that no one connected with that facility had written the progress report; when confronted, the mother admitted she had written it herself. The mother claimed she was employed but had not submitted proof of income to SSA.

The mother filed a section 388 petition on the day of the permanent plan selection hearing, asking the juvenile court to place Taylor in her care and provide family maintenance services. She described the activities she and Taylor enjoyed during their visits and stated, My daughter is affectionate with me and looks to me for comfort.

The mother declared she had entered the MWFC program on March 11, 2008 and completed it on September 11, 2008. The program consisted of weekly individual counseling, alcohol and drug education classes, relapse prevention classes, 12 step meetings, and random drug tests. All her tests were clean. She had been employed in a sales position for one year, but was laid off on September 15, 2008. She was currently working as a bookkeeper. The mother asserted her last contact with the father was seven or eight months ago and she no longer had a relationship with him. She claimed she was capable of caring for my child and she had addressed the concerns which brought my daughter into protective custody.

The court denied a hearing on the petition based on lack of proof on the best interest of the child. It pointed out the mother had lost custody of Taylor three times, first in October 2004, next in December 2006, and then in September 2007. The court observed, She seems to be improving again, and seems to be making, again, remarkable improvements. My concern though is: What is in the best interest of the child? And I cannot conclude that it is in the childs best interest to put her through this process again.

The court proceeded to the permanent plan selection hearing. Taylor testified in chambers. She was not able to express a first choice of where she wanted to live because I like everybody in my family . . . . She liked living with her grandparents, and she would like to live in a place where she did not have to move again. But she liked talking and visiting with her mother, ranking their visits as a ten.

The social worker testified consistently with her reports. She had not explained to Taylor that adoption could mean she would never see her mother again because the grandfather had told the social worker Taylor would be allowed to see her mom after adoption. The mother had cleared up her warrant.

The court found the mother had not maintained regular and consistent visitation and that circumstances had not changed. She attempts to abstain from drugs and does, relapses, abstains, relapses and is presently in an extension mode. She has never progressed from this position. . . .  It is time to allow the child to move on forward. The court found even if the mother had maintained regular visitation and contact with the child, she has failed to met her burden to prove the second prong of the test. The court found Taylor adoptable and terminated parental rights.

DISCUSSION

Section 388 Petition

The mother contends the juvenile court erred in failing to order an evidentiary hearing on her section 388 petition. She claims she presented a prima facie case that her requested relief was based on changed circumstances and would be in Taylors best interests. We disagree.

Section 388 allows a parent to petition the juvenile court to change or modify a previous order upon grounds of change of circumstance or new evidence. ( 388, subd. (a).) The court must hold a hearing on the petition only [i]f it appears that the best interests of the child may be promoted by the proposed change of order. . . . ( 388, subd. (d).) Thus, the petition must state a prima facie case of both changed circumstances and best interests of the child. 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.)

Although the petition should be liberally construed in favor of granting a hearing (In re Mary G. (2007) 151 Cal.App.4th 184, 205), the juvenile court need not put blinders on when determining whether the required showing has been made. Rather, the court can consider the entire factual and procedural history of the case when evaluating the significance and strength of the allegations in the petition. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) Allegations of changing, rather than changed, circumstances are not sufficient to warrant a hearing. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) We review the juvenile courts decision to deny a hearing for an abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

Here, the mothers petition alleged facts showing she had completed a six month drug and alcohol program one month before the hearing; she claimed she was employed and able to take care of Taylor. Even if these allegations were sufficient to state a prima facie case of changed circumstances (which we expressly do not decide), she alleged no facts to support a best interest finding other than the description of her enjoyable visits with Taylor and their mutually expressed affection for each other.

Especially in the context of this cases history, these allegations are insufficient to support a finding that returning Taylor to her mother or engaging in further reunification efforts would be in Taylors best interests. Reunification services had been terminated a year earlier, at which time the focus of the proceedings shifted from the mothers interest in reunifying with Taylor to Taylors interest in permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) [A]t this point . . . , there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child. (Ibid.)

When determining whether the mother had made a prima facie showing of best interests, the juvenile court here correctly balanced the stability and permanence of Taylors current placement against the mothers allegations of her relatively recent progress and her positive relationship with Taylor. The balancing was not a simple comparison between two households decried by this court in In re Kimberly F. (1997) 56 Cal.App.4th 519, 530. Rather, it was an appropriate focus on Taylors best interests after four years in the dependency system. The juvenile court found returning Taylor to her mother would jeopardize the stability and permanence she had finally achieved and enjoyed for the previous year. This finding was not an abuse of discretion.

Beneficial Relationship Exception

The mother contends the juvenile court erred in failing to find her relationship with Taylor outweighed the benefits of adoption. She argues Taylor is strongly bonded to her, as demonstrated by their positive, loving visits and Taylors statements that she wanted to live with her mother. There was no error.

At a permanent plan selection hearing, the juvenile court will ordinarily terminate parental rights if it finds by clear and convincing evidence that a child is adoptable. The termination of parental rights to an adoptable child can be avoided, however, if the court finds a compelling reason for determining that termination would be detrimental to the child due to at least one of several statutorily-described circumstances. ( 366.26, subds. (c)(1)(B)(i)-(iv).) The so-called beneficial relationship exception describes circumstances where [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).) In order to prove that the exception applies, a mother must overcome the strong statutory presumption in favor of adoption and show that the relationship between her and the child is so beneficial that its severance would render the termination of parental rights detrimental to the child. (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.)

The beneficial relationship exception must be considered in view of the legislative preference for adoption when reunification efforts have failed. [Citation.] So viewed, the exception does not permit a parent who has 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. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) As in the section 388 analysis, any harm from terminating the relationship must be balanced against the childs need for stability and permanency. (Ibid.)

The mother here did not show that the termination of parental rights would be detrimental to Taylor, nor does the record compel such a finding. (Compare In re S.B. (2008) 164 Cal.App.4th 289, 301.) Rather, our review of the record reveals substantial evidence to support the juvenile courts determination that the mothers relationship with Taylor did not outweigh the benefits of adoption. The existence of such evidence requires us to affirm. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Taylor was thriving in her grandparents home. Her educational, social, physical and emotional needs were being met there. Although she loves her mother and would be sad if they no longer saw each other, she was equivocal about leaving her grandparents to return to her mothers care. The juvenile court correctly found no reason to apply the exception to adoption.

DISPOSITION

The order and judgment are affirmed.

SILLS, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] The mother petitioned for extraordinary relief from the setting order under California Rules of Court, rule 8.452. We denied the petition. (In re Sheri T. (2008) 166 Cal.App.4th 334.)