In re M.H.

Filed 9/29/06 In re M.H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael Imhoff, Referee. Affirmed.

L.H. appeals the judgment terminating her parental rights over her son, M.H. She contends the juvenile court erred by denying her Welfare and Institutions Code section 388^[1] petition and by declining to apply the beneficial relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(A)). We affirm.

BACKGROUND

In March 2004, when M.H. was 18 months old, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition because he was exposed to violence in the home between L.H.'s sister and L.H.'s boyfriend, L.H. left him in the care of a neighbor she did not know and did not return for him when she said she would, she did not provide him a nebulizer for his asthma and reactive airway disease, and she and other adults in the home exposed him to cigarette smoke.

M.H. was detained then placed in foster care. In May 2004, he was moved to a concurrent planning foster home where he remains. The section 366.26 hearing and the hearing on L.H.'s section 388 petition took place in April 2006.

THE SECTION 388 PETITION

The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the dependent child's best interests. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 322; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) We review the juvenile court's order for an abuse of discretion. (In re Michael B., supra, at p. 1704; In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)

L.H.'s section 388 petition sought to modify the court's January 2005 six-month review order terminating her reunification services and setting a section 366.26 hearing. The petition requested that M.H. be placed with L.H. with family maintenance services, or, alternatively, that she be provided reunification services and unsupervised or supervised visits. As changed circumstances, the petition alleged she had "established and maintained stable and appropriate housing with her new husband, availed herself of services, visited [M.H.] as often as practicable, and maintained regular phone contact with [him]." The petition alleged the proposed changes were in M.H.'s best interests because he and L.H. had "an important biological and emotional relationship, that would be in [his] best interests to cultivate and preserve."

The court considering a request for change of placement at the permanency planning stage must recognize the focus has shifted to the child's need for permanency and stability "in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317.) "In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.] 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citation.]" (Ibid.)

Here, the juvenile court concluded that L.H. met her burden of showing changed circumstances, but did not meet her burden of showing that M.H.'s return to her was in his best interests. It stated, "[M.H.] has been in his current placement for virtually two-thirds of his life. He has formed primary attachments to his caretakers. [L.H.] has maintained regular and consistent contact but has had only four face-to-face visits over the course of the last year or so.

In addition, the evidence is compelling by virtue of the observed visits with [L.H.] and [M.H.] and based on the observations of the phone calls that [M.H.] does not look to [L.H.] as a parental figure at this juncture of his development. He looks to the foster parents and the foster mother in particular as the parental role model." The court determined it would not be in M.H.'s best interests for L.H. to have reunification services, citing "the depth and the frequency of the described anxiety that [M.H.] has in having phone conversations with [L.H.]" and his "outright quest . . . not to be forced into talking on the phone."

The focus at the section 388 hearing was on M.H.'s interests, not L.H.'s. (In re Stephanie M., supra, 7 Cal.4th at p. 324.) He had been in the care of his foster family for nearly two of his three and one-half years of life, more time that he had been in L.H.'s care. He was stable and safe in his foster home and needed permanence. His primary attachment was to his foster parents, and he was particularly close to his foster mother. L.H., on the other hand, still lacked insight into the reasons for the dependency.

During the year before the hearing, M.H. had had only four face-to-face visits with L.H., who moved out of state around April 2005.^[2] While the visits generally went well, at the beginning of visits M.H. usually clung to his foster mother, and when visits ended, he returned to her happily.

During the year before the hearing, L.H. had weekly supervised telephone calls with M.H. four times a week. M.H., however, usually did not want to talk to her. To help him relax and encourage him to talk to L.H., the foster parents established a routine of reading to him in a quiet area before the calls. Nevertheless, when the telephone rang, he usually ran away, hid his head, and sought his foster mother for comfort and security. If the telephone was handed to him, he often tried to throw it to the floor. Other times, he spat at it, tried to hang up, or said, "I don't like her" or "I'm going to hide from her." For most of the calls, he could be coaxed to speak with L.H. The conversations lasted between a few seconds and eight minutes. M.H. did not ask for L.H. between telephone calls and never asked to call her.

On one recent occasion, when the telephone rang M.H. ran into another room and hid behind a large chair. When his foster father approached the chair and said L.H. was on the telephone, M.H. said, "No, I don't want to talk," then climbed back over the chair, ran to his foster mother, hid behind her, and put his arms around her legs.

On another occasion, in November 2005, the foster mother was not home when the call came. M.H. panicked, hid, and looked for his foster mother. When he could not find her, he became very upset, crying and calling out, "I want my mom. Where's mommy. I want my mommy." He was so upset over the foster mother's absence that he was unable to speak on the telephone that day.

The court did not abuse its discretion by concluding that granting the section 388 petition would not promote M.H.'s best interests. It did not err by denying the petition.

THE BENEFICIAL RELATIONSHIP EXCEPTION

Section 366.26, subdivision (c)(1) requires termination of parental rights upon clear and convincing evidence of adoptability, but an exception exists if "[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)(A).) A beneficial relationship is one that "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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "[T]he 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." (Ibid.) 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." (Id. at p. 576.) The parent has the burden of proof. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) We apply the substantial evidence test. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

The juvenile court found that L.H. maintained regular contact with M.H., but any benefit from the contact was "greatly outweighed by his need for stability in placement which can only be achieved through adoptive placement." The court cited M.H.'s anxiety and his attachment to his caretakers. Examining the evidence in the light most favorable to the judgment, we determine substantial evidence supports the juvenile court's conclusion there was not a beneficial relationship.

By the time of the section 366.26 hearing, M.H. was three and one-half years old. He spent only his first one and one-half years in L.H.'s care, and had been out of her custody and in his prospective adoptive home for nearly two years. L.H. was never allowed unsupervised contact. As discussed above, M.H.'s primary attachment was to his foster parents, and he needed the stability, safety, and permanence their home provided. The social worker believed that termination of parental rights would not cause him to suffer great detriment. While his few recent visits with L.H. generally went well, he was happy to return to his foster mother when visits ended. L.H.'s telephone calls distressed him greatly, and he did not ask for her between telephone calls.

The juvenile court did not err by declining to apply section 366.26, subdivision (c)(1)(A).

DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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

^[2] She was also out of state for one or two months in 2004.