In re T.K.

















Filed 12/28/12 In
re T.K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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.K., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. CYNTHIA S., Defendant and Appellant.	G046892 (Super. Ct. No. DP019279) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Kimberly Menninger, Judge. Affirmed.

Nicole
Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Nicholas
S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County
Counsel, for Plaintiff and Respondent.

No
appearance by the Minor.

Cynthia S. appeals from
the juvenile court’s summary denial of a Welfare and Institutions Code
section 388href="#_ftn1"
name="_ftnref1" title="">[1]
petition, the court’s order terminating her href="http://www.mcmillanlaw.com/">parental rights under section 366.26,
and the denial of her request for a continuance of the permanency planning
hearing (§ 366.26 hearing). We affirm.

FACTS

On December 30, 2009, the Orange County Social Services Agency (SSA) filed a juvenile
dependency petition alleging parental neglect after Cynthia’s baby, T.K., was
born with a positive toxicology screen for methamphetamine. Both parents have criminal records. T.K.’s presumed father, C.K., had felony
convictions for burglary, receiving stolen property and narcotics possession.href="#_ftn2" name="_ftnref2" title="">[2] Cynthia had been convicted of misdemeanor
driving under the influence of alcohol or drugs approximately two years before
T.K.’s birth.

In
January 2010, T.K. was placed in the home of his paternal grandmother. In February, the juvenile court accepted the
parents no contest plea to the allegations of parental neglect contained in the
petition. In March, the court declared
T.K. a dependent child of the juvenile court and approved a case plan that
required Cynthia to stay away from drugs and alcohol, complete a parenting
class, a drug treatment program, submit to random drug testing, and attend
Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings. Cynthia enrolled in the Dependency Drug Court program and agreed to fully participate in substance abuse
treatment and counseling as required by the program. The court ordered unmonitored visitation
while T.K. was hospitalized, and regular, monitored visitation when the child
was placed with his paternal grandmother.


Cynthia
initially followed the case plan.
However, in April, she was discharged from the Dependency Drug Court program because of “several incidents involving lying, falsifying
her Court 12 step cards, and not showing up to previous Court
appearances.” She was discharged from
the perinatal drug treatment program in June 2010. The program allowed her to reenroll in
August, but she failed to provide NA and AA attendance records and had positive
drug tests. Consequently, the court
extended jurisdiction after the six-month review hearing.

Cynthia
repeated this pattern, i.e., brief periods of compliance with the case plan
mixed with longer periods of noncompliance, during subsequent review
periods. Cynthia regularly visited T.K.,
although she never progressed to unmonitored visits, nor did she ever care for
T.K. overnight. In June 2011, after 18
months of family reunification services, the juvenile court ordered a section
366.26 hearing.

T.K.
was placed with a prospective adoptive home in August 2011. In October, Cynthia filed a motion to
continue the section 366.26 hearing and for the appointment of a bonding
expert. The court continued the proceedings,
and in November, Cynthia filed a section 388 petition based on changed
circumstances.

According
to the section 388 petition, Cynthia sought immediate custody of T.K.,
additional reunification services, and liberalized visitation, which she stated
should include overnight visits and unmonitored visits. She submitted several letters of
recommendation from family and friends, a certificate of completion for the
perinatal program, and attendance cards for AA meetings in support of her
petition.

The
court denied the petition without a hearing, concluding Cynthia had failed to
make a prima facie showing of changed circumstances. The court noted, “This mother at this point
is attempting to change [her] circumstances.
That appears to be clear; however, without sounding trite, too little
too late. It’s long past the point in
time when she should have gotten it together, and there should not have been
shown anything except negative tests for drugs.” The court also denied Cynthia’s request for a
bonding study, noting, “there was plenty of time to make this request in a
timely fashion long before this point,” and Cynthia failed to demonstrate a
bonding study was in T.K.’s best interest.


The
permanency planning hearing began on November 17, 2011. The social worker reported
T.K. was doing well in his prospective adoptive parent’s home. As for Cynthia, the social worker reported
that she had been initially given 10 hours of visitation every week, but that
had been reduced to six hours per week after some positive drug tests. She had missed few scheduled visits, although
her visits were not without conflict with T.K.’s prospective adoptive
mother. Cynthia’s progress with the rest
of the case plan was minimal. She had
trouble addressing the underlying substance abuse issue as demonstrated by her
positive drug tests and intermittent compliance with drug treatment
programs.

Cynthia
testified she had a good relationship with T.K. in that he would smile and run
to her, play with her, and remember words from songs they sang together. She claimed T.K. accepted directions from
her, and that she was very attentive to his needs. Cynthia’s mother and father, the maternal
grandparents of T.K., also testified to the close bond between Cynthia and T.K.
that they had witnessed whenever T.K. and Cynthia were together at their house,
which included scheduled and a number of previously unreported, impromptu
visits. Both of them testified to a
dramatic change in Cynthia in the months before the hearing.

After the
hearing, the juvenile court reconsidered its ruling on Cynthia’s request for a
bonding study, stating, “after listening to the
testimony . . . and then reviewing with a lot of detail all
of the records that were submitted by social services, the court has found that
there were substantial dates that you did visit with your child between the
dates of February 16th and August 5th.
[¶] There were additional visits that have occurred after that, but the
substantial time that was, you know, multiple times each week occurred between
that time period to the point where the court does feel that you did have an
ongoing contact with your child more than anyone . . . is
aware of based on the contacts you had with your mother and father when they
took your son over the weekend. [¶] That
did add quite a lot of time that we didn’t know about. They’re probably unauthorized visitations,
but at the end of the day, they’re visitations nonetheless . . . .”

Dr.
Ronald H. Banner conducted a bonding study and filed his report in January
2012. The report stated, in pertinent
part, that Cynthia had “many unresolved psychological issues,” including a
borderline personality disorder that is “characterized by unstable and intense
interpersonal relationships, impulsivity, affective instability, inappropriate,
intense anger or difficulty controlling anger, and transient, stress-related
paranoid ideation.” He also observed
that while Cynthia had a strong emotional attachment to T.K., her need to
continue the relationship was more intense than T.K.’s “need
or . . . emotional attachment to the mother.” In addition, Dr. Banner believed T.K.’s
emotional and developmental issues were exacerbated by providing both
biological parents with visitation.
Ultimately, Dr. Banner concluded the termination of Cynthia’s parental
rights would not be detrimental to T.K.

On February 27, 2012, the date for the continued section 366.26 hearing, Cynthia filed a
motion to continue and another section 388 petition. The reason for the continuance, according to
counsel’s declaration, was Dr. Banner’s report had not included some recent
information, i.e., Cynthia had completed the perinatal program, obtained
employment, and arranged for child care in the two months before the continued
hearing. Counsel averred this
information could alter Dr. Banner’s opinion.


As for
the section 388 petition, Cynthia declared the fact she had recently secured
stable housing and employment, completed the perinatal program and achieved
sobriety constituted changed circumstances.
In sum, Cynthia believed she now had “the stability required to insure
the wellbeing of [T.K.].”

Without
specifically denying the motion to continue, the juvenile court conducted a
hearing on February 27. Cynthia’s
counsel cross-examined Dr. Banner. Dr.
Banner testified his opinion had been based, in large part, on Cynthia’s lack
of stability. He acknowledged the
positive relationship between mother and child, but recommended termination of
parental rights. The court asked Dr.
Banner if his opinion would change with information “the mother [has] housing,
has completed a perinatal course, has employment, [and] has
daycare . . . .” Dr.
Banner replied, “each of those items don’t sound substantial to me. I mean I would have to know a considerable
amount of additional information to feel secure that – that what she can offer
outweighs the benefit of adoption of this minor child. This minor child certainly deserves to have a
chance at a reasonably good – good life.
He’s a – it[] seems to me, from what I’ve evaluated, he already has
[been] compromised.”

The
court continued the hearing, but on March 1, Cynthia’s attorney declared a
conflict. On April 19, new counsel filed
another section 388 petition. Cynthia
now claimed six months of sobriety, graduation from the perinatal program and
participation in their aftercare program, attendance at 12-step meetings,
employment and the opportunity for a stable residence constituted changed
circumstances. She also filed a motion
for an updated bonding study.

On
April 24, at the continued section 366.26 hearing, the court denied Cynthia’s
section 388 petition without a hearing after finding she failed to make a prima
facie case for changed circumstances. As
the court characterized Cynthia’s efforts in this regard, the petition
“show[ed] a possibility of change in circumstances,” not changed
circumstances.

The
court also denied Cynthia’s request for an updated bonding study. After reviewing Dr. Banner’s testimony and
his report, the court concluded, “There is no question that there is a bond
between the mother and child of sorts, but it is not the type as it is
described by the psychologist of a mother/daughter or mother/son bond. It’s different. It’s still a bond but it’s not of a parental
sort. [¶] And [T.K.] deserves and needs
that parental bond with someone who is going to take care of his every need 24
hours a day every day for the rest of his life.”

After
hearing the arguments of counsel and reviewing the SSA reports submitted, the
court summarized the case as follows:
“What brought us here on this matter was the fact that the child was
born positive toxicology with methamphetamine in his system. The child was taken from the mother at the
detention and eventually placed with the paternal grandmother. [¶] On February 4th, 2010, mother and father
both plead nolo contendere to the petition, and they were both given a
plan. The concept in the plan was for
them to complete everything within the plan and the timelines given and
potentially to have their child come back into their care; however, that did
not occur. [¶] The parents did not meet
the timelines. The parents did not
comply with the plan. Mother’s visits,
by March of 23rd, 2010, were reduced to 10 hours per month. And by May of 2010, mother was told to no
longer breastfeed the child because she was still continuing to test positive
for methamphetamine. [¶] The mother
continued to test positive for methamphetamine through either a positive, a
dilute, or a missed test as recently as October 3rd, 2011, when she presented a
dilute following a missed test in September of 2011. [¶] Mother’s family reunification services
were terminated in June of 2011 because she failed to progress. [¶] The findings at this stage of the
proceeding require that the court make a finding by clear and convincing
evidence that the child is likely to be adopted and, number 2, that no
exceptions apply. [¶] Furthermore, the
court does find at this time by clear and convincing evidence that this
child . . . is likely to be adopted. [¶] He is not only generally adoptable, he is
cute and healthy, bo[th] mentally and physically. He is also specifically adoptable as he is
now currently residing with the pre-adoptive family who has been raising him in
their home since August of 2011 and wished to proceed. [¶] The second finding the court must make is
whether any exceptions apply, and the mother is asserting that the exception of
Welfare and Institutions Code section 366.26, (c)(1)(B)(1) applies. [¶] Mother asserts that the termination of
parental rights would be detrimental to the child due to her assertion that she
has maintained regular visitation with the child, and the child would benefit
from continuing the relationship, and secondly, there is evidence before the
court that this mother did maintain visitation [] between herself and
[T.K.]. [¶] We have received into
evidence the following facts: That she
has had approximately 81 visits with [T.K.] from August 2010 to October 31st,
2011. 37 of them occurred after
reunification services were terminated in June of 2011. [¶] The court is also aware that additional
visitations have occurred with mother since this proceeding began, and so would
also take into consideration the fact that there are even more visitations than
81; however, this child is two years and four months old. [¶] [T.K.] has lived approximately 850
days. Of 850 days, mother has spent
1/10th of them with [T.K.]. 9/10th of
those days, he has been alive and has spent them with someone else. [¶] The court finds by clear and convincing
evidence that the quantity of visitation does however rise to the level of
regular visitation. [¶] The court moves
now to the second prong, and that is whether or not the child would benefit
from continuing this relationship. [¶]
In the case of In re I.W., a 2009
case, 180 Cal.App.4th, 1517, the court was challenged as to a juvenile court’s
finding that there was no beneficial relationship that amounted to a contention
that the undisputed facts lead to only one conclusion. [¶] Unless the undisputed facts established
the existence with beneficial parental or sibling relationship is a substantial
evidentiary challenged to this component of the juvenile court’s determination
would not succeed. [¶] The same is not true
as to the other component of these adoption exceptions. The other component of both the parental
relationship exception and the sibling relationship exception is the
requirement that the juvenile court find that the existence of the
relationships constitutes a compelling reason for determining that termination
would be detrimental. [¶] A juvenile
court finding that the relationship is compelling reason for finding detriment
to the child is bad on the facts, but it is not primarily a factual issue. It is instead quintessentially a
discretionary decision which calls for the juvenile court to determine the
importance of the relationship in terms of the detrimental impact that its
severance can be expected to have on the child and to weigh that against the
benefit to the child of adoption. [¶]
The focus is on the child.
[¶] . . . [¶] In sum, mother has presented no
evidence that the minor’s relationship with her is sufficiently substantial and
positive such that the minor would be greatly harmed if the relationship were
severed. On the other hand all of the
evidence submitted before the court shows that the minor is thriving out of the
mother’s custody. [¶] The Legislature
has, in effect, found the best interests of the minor to be served by
permanence and stability afforded by adoption at this stage in the
proceedings. [¶] The juvenile court
would have to find an exceptional situation existed to forego an adoption. [¶] This court does not find [that] an
exceptional situation exists at this time and finds that any benefit of
continuing the relationship with mother does not rise to the type of
substantial, positive, and emotional attachment that would cause the minor
great harm if severed and does not outweigh the benefits of stable and
permanent home.”

DISCUSSION

>Summary Denial of Section
388 Petition

“Under
section 388,name=F00022027767266>href="#_ftn3"
name="_ftnref3" title="">[3]
a parent may petition the court to change, modify, or set
aside a previous court order. The name="SR;2875">petitioning party has the burden of showing, by a
preponderance of the evidence, that there is a change of circumstances or new
evidence, and the proposed modification is in the minor’s best interests. [Citations.]”
(In re S.M. (2004) 118 Cal.App.4th 1108, 1119.) A petition for modification under section 388
must contain a “concise statement of any change of circumstance or new evidence
that requires changing the [prior] order . . . .” (Cal. Rules of Court, rule 5.570(a)(7).)href="#_ftn4" name="_ftnref4" title="">[4] “Such petitions are to be liberally construed
in favor of granting a hearing to consider the parent’s request. [Citations.]”
(In re Marilyn H. (1993)
5 Cal.4th 295, 309.)
Furthermore, “[t]he parent [seeking modification] need only make a prima
facie showing to trigger the right to proceed by way of a full hearing. [Citation.]”
(Id. at p. 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.]”
(In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “‘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.’ [Citations.]”
(In re Brittany K. (2005)
127 Cal.App.4th 1497, 1505.) We review
the juvenile court’s determination to deny a section 388 petition without a
hearing for an abuse of discretion. name=SearchTerm>name="SR;2803">(Ibid.name="SR;2841">)

name=B00022027767266>name="SR;3187"> Cynthia
argues the juvenile court abused its discretion by summarily denying her
section 388 petition. We disagree. Throughout the reunification period,
Cynthia’s compliance with her case plan was minimal. She had periods of sobriety, but she also had
frequent relapses. She repeatedly
enrolled in drug treatment programs, only to be terminated for dirty tests or
behavior issues. She did eventually
complete the perinatal treatment program, but that was after reunification
services had been terminated. We applaud
her efforts at rehabilitation, but they simply came too late in T.K.’s life to
make a difference. Cynthia’s last
section 388 petition reasserted facts contained in previous petitions and
offered no assurance that her changing circumstances would coalesce into a
stable life suitable for a child. In
short, Cynthia has not demonstrated the juvenile court’s summary denial of her
section 388 petition was arbitrary or capricious.

>Section 366.2, subdivision
(c)(1)(B)(i) Benefit Exception

Pointing
to her frequent, consistent visitation, Cynthia argues the court’s finding with
respect to section 366.2, subdivision (c)(1)(B)(i) benefit exception. We emphasize that if the court finds by clear
and convincing evidence that a child is adoptable, it becomes the parent’s
burden to show termination of parental rights would be detrimental to the child
because a specified statutory exception exists.
(In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) “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.” (Id. at
p. 575.) When reviewing
whether there is sufficient evidence to support the trial court’s finding, the
appellate court reviews the evidence in the light most favorable to the trial
court’s order, giving the prevailing party the benefit of every reasonable
inference and resolving all conflicts in support of the order. (Id. at p. 576.) Substantial evidence supports the juvenile
court’s ruling.

Here, Dr. Banner
testified Cynthia’s bond with T.K. was substantial. However, he did not come to the same
conclusion with respect to T.K.’s bond with Cynthia. In fact, the record demonstrates T.K. had behavioral
problems after some of his visits with her.
Moreover, Cynthia had never cared for T.K. in a parental capacity. At most, she was just another interested
adult in his life. Cynthia attempts to
parse the record and rely on those facts which support her position. She recounts her own testimony and that of
her parents in this regard. But we do
not reweigh the evidence and give deference to the juvenile court’s resolution
of witness credibility. The court gave
credence to Dr. Banner’s testimony and SSA reports, and nothing in the record
suggests the court’s reliance on this evidence was misplaced.

“The reality is that
childhood is brief; it does not wait while a parent rehabilitates himself or
herself. The nurturing required must be
given by someone, at the time the child needs it, not when the parent is ready
to give it.” (In re Debra M.
(1987) 189 Cal.App.3d 1032, 1038.) By
the time Cynthia made enough progress to even be considered for unmonitored
visitation, T.K. had people in his life who were ready, willing, and able to
meet his needs as his parents. We are
mindful that after a court has terminated reunification services, “the focus
shifts to the needs of the child for permanency and stability.” (In re Hashem H. (1996) 45 Cal.App.4th
1791, 1800.) After nearly two years of
family reunification services, Cynthia simply could not meet T.K.’s need for
permanency and stability.

The existence of a
beneficial relationship is determined, in part, by “[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.” (In re Autumn H., supra, 27
Cal.App.4th at p. 576.) As the trial court noted, T.K. had lived approximately 850 days by the conclusion of the
section 366.26 hearing and for “9/10th of those days, he has been alive and has
spent them with someone else.” Thus,
substantial evidence supports the juvenile court’s finding.

>Abuse of
Discretion-Continuance

Dr.
Banner acknowledged his report had been prepared two months before the February
27 hearing. Cynthia’s first attorney
filed a section 388 petition and motion to continuehref="#_ftn5" name="_ftnref5" title="">[5] the section 366.26 hearing. Cynthia’s second attorney requested the court
dismiss former counsel’s section 388 petition, but there was no mention of the
continuance motion. On appeal, Cynthia
argues the motion to continue was pending on April 23 when new counsel filed a
third section 388 petition. She
contends, “it is unclear from the record whether the juvenile court considered
the two motions [the section 388 petition and the motion to continue] together,
utilizing an analysis pursuant to section 352, or whether the court only
considered the motion for an updated bonding study, whereby it only determined
whether or not such a report would assist the court.” We find no error.

The
juvenile court has broad discretion in determining
whether to grant a continuance. (In re Gerald J. (1991) 1 Cal.App.4th
1180, 1186-1187.) Reversal of an order
denying a continuance may be made “only upon a showing of
an abuse of discretion.” (>Id. at p. 1187.) Here, the court questioned Dr. Banner and
ascertained his opinion would not change even
assuming the facts Cynthia presented were true. While she had made some progress, it was, as
the court noted, “too little too late.”
“‘Section 352 mandates that before the court can grant a continuance it
must “give substantial weight to a minor’s need for prompt resolution of his or
her custody status, the need to provide children with stable environments, and
the damage to a minor of prolonged temporary placements.”’” (In re Elizabeth R. (1995) 35
Cal.App.4th 1774, 1798.) name="______#HN;F9">For the juvenile court, T.K.’s
need for a stable environment and a resolution of the dependency proceeding
outweighed Cynthia’s desire to prolong the proceedings. The court’s determination was sound and not
an abuse of discretion.



DISPOSITION

The
judgment is affirmed.







THOMPSON,
J.



WE CONCUR:







MOORE, ACTING P. J.







IKOLA, J.