Opinion
D059064
09-13-2011
In re C.E. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.G. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. 516434C-D)
APPEAL from a judgment of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.
M.G. and Benjamin E. (together, the parents) appeal a juvenile court judgment terminating their parental rights to C.E. and V.E. (the children), under Welfare and Institutions Code section 366.26. Benjamin E. challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception to adoption did not apply, an argument, which M.G. joins. M.G. contends the court abused its discretion by summarily denying her section 388 petition seeking the children's return to her custody. We affirm.
All further statutory references are to the Welfare and Institutions Code.
The children's appellate counsel supports the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
M.G. is the mother of four children, none of whom are in her custody. This appeal concerns M.G. and Benjamin E.'s five and one-half-year-old son C.E., and two and one-half-year-old daughter V.E. M.G.'s son Brandon, age 13, and daughter Brianna, age 10 (half siblings), were placed with their father James P.
In 2006 the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of C.E. and his half siblings alleging general neglect, and that Brianna and C.E. were at a risk of harm due to Brandon's aggressive and sexualized behavior. M.G. received over seven months of voluntary services, including an intensive family preservation program (IFPP), in-home parenting classes, independent living skills and in-home supportive services (IHSS). The voluntary cases for C.E. and Brianna were terminated in February 2008, and jurisdiction over Brandon was terminated by May 2008. In July 2008 the Agency filed a new dependency petition on behalf of Brandon because he had been physically aggressive toward M.G. and his siblings. The juvenile court placed Brandon in a group home, and ordered M.G. and James P. to participate in reunification services.
Since birth M.G. has suffered from chronic and debilitating seizures which vary in frequency, are exacerbated by stress, and necessitate in-home assistance. In September 2008 M.G. was living alone with Brianna, pregnant with V.E. and suffering up to three seizures daily. C.E. was staying with his maternal grandmother (grandmother) because M.G. was unable to care for both children by herself. During September eight-year-old Brianna missed at least 10 days of school so she could care for M.G. and because M.G. had been in and out of the hospital and was too ill to drive or walk Brianna to her school located one block away. At the social worker's recommendation, M.G., Brianna, and C.E. moved in with grandmother so she could care for them and M.G. agreed to accept voluntary services from the Agency.
Grandmother's social worker opposed this living arrangement because grandmother was in the process of reunifying with five of her dependent grandchildren.
Following V.E.'s birth the Agency discovered M.G. was living alone with Brianna and the children. M.G. was having daily incapacitating seizures and did not believe she could care for her children without assistance, but knew of no adult who could live with the family. Brianna was getting up several times during the night to care for M.G. and to feed one-month-old V.E. and change her diaper. Grandmother was at M.G.'s home almost daily to cook, clean and care for M.G., Brianna, and the children. Grandmother believed M.G. could not cope without the assistance of another adult. In December 2008 the Agency filed dependency petitions on behalf of C.E., V.E., and Brianna under section 300, subdivision (b), alleging M.G.'s daily seizures made her unable to care for them. Despite having received significant educational and supportive services, M.G. lacked judgment and insight into the safety of the children. C.E. and V.E. were detained in foster care and Brianna was detained with M.G., but Brianna was to reside with grandmother during the week so she could attend school.
M.G. suggested Benjamin might help her care for the children but the Agency advised her not to allow Benjamin to move into the home because he had previously assaulted M.G., Brandon, and Brianna, and M.G.'s 2006 restraining order against Benjamin remained in effect. M.G. insisted that Benjamin had not been physically violent toward her, excusing Benjamin's violence with Brandon as a result of his drinking and claimed Benjamin no longer drank alcohol.
In 2006 M.G. had informed the Agency of Benjamin's ongoing physical abuse of her, and had made the same allegations in her declaration in support of the 2006 restraining order against Benjamin. Benjamin claimed M.G. was forced by her family to accuse him of domestic violence to prevent Benjamin from reporting her family's alleged incest. However, Benjamin admitted several domestic violence charges had been filed against him by women other than M.G.
Approximately two weeks after the dependency petitions were filed, the Agency discovered Benjamin was living with M.G. and removed Brianna from M.G.'s custody. The Agency filed amended petitions alleging Brianna and the children were at substantial risk of harm due to Benjamin's history of physical abuse and M.G.'s daily seizures, anxiety disorder, depression and arthritis, as well as her lack of judgment concerning the children's safety. At the contested jurisdiction and disposition hearing, the juvenile court declared Brianna and the children dependents, placed them in foster care, and ordered reunification services for the parents.
In January 2010 the Agency requested discretion to place the children with Benjamin for a 60-day trial visit, and recommended an additional six months of reunification services. Benjamin had successfully completed substance abuse and parenting programs, and was participating in a domestic violence program during which he admitted fault for his past abuse, although he did not score well on assigned tasks. Benjamin's visits with the children were positive and appropriate and C.E. looked forward to them. However, during one unsupervised visit, Benjamin took the children to the beach without a change of clothes and brought them home in wet clothes, after which V.E. became ill.
During the first year of the dependency, M.G. had been discharged from therapy due to several no-shows, reportedly because she was too anxious to board a bus and had been hospitalized several times as a result of her seizures. By January 2010 M.G. was participating in therapy but continued to lack insight into the protective issues which necessitated the children's removal; continued to minimize the effects of domestic violence on them; did not fully understand how her chronic medical conditions affected her parenting; and her seizures caused her to forget what she had learned. M.G.'s supervised visits with V.E. had been temporarily suspended because she had difficulty interacting with V.E., who cried continually for the duration of each one and one-half-hour visit. When visits were reinstated M.G. still had some difficulty interacting with V.E., was unable to supervise the children adequately, and when she was unhappy, M.G. refused to interact with the children or say goodbye to them.
At the contested review hearing in May 2010, the Agency recommended termination of reunification services for the parents. Benjamin had demonstrated several lapses in judgment during unsupervised visits with the children resulting in termination of his unsupervised visitation. In addition to the beach incident when the children were brought home in wet clothing, Benjamin reportedly had forgotten to feed them during lengthy visits and contrary to Agency instructions, had taken the children to his home where other adults were present. Finally, when confronted with the fact that C.E. had begun using swear words, Benjamin admitted he had not considered the potential effects of using inappropriate language in C.E.'s presence. The court found neither parent had made substantive progress in resolving the protective issues which led to the children's removal. The court found by clear and convincing evidence that there was no substantial probability the children would be returned to parental custody by the 18-month date, terminated reunification services, and scheduled a section 366.26 hearing.
The Agency recommended adoption as the permanent plan for the children. The children were very attached to the foster parent with whom they had lived since April 2009, and the foster parent was "extremely committed" to adopting them. The Agency believed the children were highly adoptable; in addition to the foster parent, there were several approved homes interested in adopting both children. The children did not appear to have a strong relationship with the parents. V.E. had not lived with M.G. since she was one month old and had never lived with Benjamin. C.E. had lived with M.G. his first three years and Benjamin his first two and one-half years, but by the section 366.26 hearing C.E. had spent over two years in foster care. M.G.'s epilepsy made it impossible for her to safely parent the children alone. Although Benjamin's supervised visits were appropriate and the children seemed to enjoy them, his unsupervised visits had been terminated because he showed poor judgment.
In October 2010 the Agency asked the parent's to decrease the frequency of their visits with C.E. because he was exhibiting regressive behaviors which it was suspected were exacerbated by the visits. Although the parents' visits were reduced to every other week, C.E. still suffered incidents of encopresis after visits with M.G., encopresis and tantrums before several visits with Benjamin, and became uncontrollable and smeared feces on his hands after telephone conversations with M.G.
Eight months after reunification services were terminated, M.G. filed a section 388 petition alleging her circumstances had changed and it was in the children's best interests for the court to reconsider its order terminating reunification services. After considering the evidence and argument, the court denied M.G. a hearing on her section 388 petition and found she had not met her burden to establish a prima facie showing her circumstances had changed, or that the proposed change of order was in the children's best interests. The court also noted M.G.'s section 388 petition had been filed at the last minute, after several continuances of the section 366.26 hearing.
At the section 366.26 hearing, the court found M.G. had "marginally established" consistent and regular visitation with the children, but had not proved that maintaining her relationship with the children outweighed the benefits of their adoption. The court found the record clearly established that C.E.'s encopresis, enuresis and anxiety was associated with M.G.'s visitation. Benjamin had established regular contact with the children, but his relationship with them did not outweigh the security and sense of belonging they would experience in an adoptive home. The court found by clear and convincing evidence that none of the circumstances listed in section 366.26 (c)(1)(B) applied to make termination of parental rights detrimental to the children; the court found adoption was in the children's best interests and terminated parental rights.
DISCUSSION
I. Section 388 Petition
M.G. contends the court erred by not granting an evidentiary hearing on her section 388 petition seeking to change the juvenile court's order terminating reunification services. M.G. claims her petition made a prima facie showing her circumstances had changed, and that it was in the children's best interests to change the court's order terminating reunification services.
In his reply brief Benjamin joins in M.G.'s arguments on appeal.
Section 388, subdivision (a) permits a parent to petition the court to change, modify or set aside a court order if the parent shows by a preponderance of the evidence his or her circumstances have changed and the proposed modification would be in the children's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re B.D. (2008) 159 Cal.App.4th 1218, 1228.) A petition for modification should be liberally construed in favor of its sufficiency, but the court has the discretion to summarily deny a hearing on the section 388 petition where there has been no prima facie showing the parent might be entitled to the requested relief if the allegations are found to be true. (In re Justice P. (2004) 123 Cal.App.4th 181, 188; In re B.C.E. (2011) 192 Cal.App.4th 129, 141.) In determining whether the requisite showing has been made the court may rely on facts alleged in the petition as well as the factual and procedural history of the case. (In re Justice P., supra, 123 Cal.App.4th at pp. 188-189.) This court will not disturb the juvenile court's exercise of discretion unless it " ' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citation]." ' " (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Section 388, subdivision (a) provides: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence that are alleged to require the change of order or termination of jurisdiction."
M.G. 's section 388 petition alleged her circumstances had changed because she had family support, was receiving services from various social service entities, had a provider available to her 24 hours a day, was in therapy, had no contact with Benjamin, her medication had changed, and she had unsupervised visitation with the children and their half siblings. The court found none of the circumstances identified by M.G. had changed since reunification services were terminated. M.G. had been eligible for and was receiving the same supportive services, and the existence of those services did not indicate M.G.'s ability to parent the children had improved; M.G.'s family, which had its own child protective issues, had been available; M.G. had not resided with Benjamin; her unsupervised visitation of the children and half siblings did not represent a change; M.G.'s performance during visitation with the children was still of concern; and there was no evidence on the face of M.G.'s section 388 petition that she had a provider available to her 24 hours a day. The court also found M.G. had not established a prima facie case it was in the children's best interests to change the order terminating reunification services because nothing in the record supported M.G.'s claims that it would benefit the children to grow up in a bilingual household or that the children could more easily visit their half siblings if they were in M.G.'s custody.
The juvenile court properly exercised its discretion in denying a hearing on M.G.'s section 388 petition. M.G.'s allegations may have shown some of her circumstances were changing but not that her circumstances had changed. "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 child's best interests. [Citation.] ' "[C]hildhood does not wait for the parent to become adequate." ' [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The reunification phase had concluded eight months prior to M.G.'s section 388 petition. At this stage of the proceedings, " 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest[s] of the child. [Citation.]" (In re Stephanie M., supra, 7 Cal.4th at p. 317.) This is particularly true "when such placement is leading to adoption by the long-term caretakers. [Citation.] 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.)
M.G.'s section 388 petition did not make a prima facie showing that delay in permanency was in the children's best interests, or that she currently was able to provide a stable, safe home for the children. (In re A.S. (2009) 180 Cal.App.4th 351, 357-358; In re Angel B., supra, 97 Cal.App.4th at p. 463.) The children were stable and happy in the home of their foster parent who was committed to adopting them. Additionally, the bonds between the children and the parents were no longer as strong as the bond between the children and their foster parent, interactions between the parents and children were not always positive, C.E. suffered encopresis, enuresis and anxiety in connection with visitation, and the children separated easily from the parents. (In re B.D, supra, 159 Cal.App.4th at p. 1229.)
M.G. relies on In re Aljamie D. (2000) 84 Cal.App.4th 424, in which the appellate court reversed the trial court's summary denial of the parent's section 388 petition. The petition in In re Aljamie D. "alleged several concrete changes in the mother's situation. . . . as well as consistent visitation and strong bonding with the children" who "repeatedly expressed" their desire to live with their mother. (In re Angel B., supra, 97 Cal.App.4th at pp. 462-463.) None of these factors are present here. M.G. also relies on In re Hashem H. (1996) 45 Cal.App.4th 1791, 1801, in which the appellate court reversed the trial court's denial of a hearing on the mother's section 388 petition. In In re Hashem H., the mother had attached to her section 388 petition a detailed letter from her therapist which listed the reasons for his recommendation that she be given custody of the child. (In re Hashem H., at p. 1797.) The trial court refused to consider the therapist's letter because it was "unverified hearsay," and found no facts had been pleaded which showed mother successfully completed therapy. (Id. at pp. 1798-1799.) The appellate court correctly reversed because the therapist's letter "demonstrated the availability of admissible evidence to support appellant's allegations of changed circumstances." (Id. at p. 1799.) In contrast, M.G.'s section 388 petition presented no indicia of independent evidence showing her circumstances had changed.
Taken as a whole, the facts summarized above support the juvenile court's finding that M.G.'s section 388 petition did not establish a prima facie case of changed circumstances or that it would be in the children's best interests to have their permanency delayed by reinstatement of reunification services.
II. Beneficial Parent-Child Relationship Exception
Benjamin argues the court erred when it terminated his parental rights because there was substantial evidence he had a beneficial relationship with the children within the meaning of section 366.26, subdivision (c)(1)(B)(i). The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals; we uphold the juvenile court's findings if there is substantial evidence to support them. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Instead, we draw all reasonable inferences in support of the findings, consider the record favorably to the juvenile court's order, and even if there is conflicting evidence we affirm the order if it is supported by substantial evidence. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of showing there is not substantial evidence to support the finding or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
M.G. joins in the arguments set forth in Benjamin's appellate brief.
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing, unless the parent establishes the existence of a statutory exception. (§ 366.26, subd. (c)(1).) One such exception is if "[t]he court 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." (§ 366.26, subds. (c)(1)(B), (c)(1)(B)(i).) In determining whether there is a beneficial parent-child relationship, the court takes into consideration "[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. (1994) 27 Cal.App.4th 567, 576.) "[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." (Id. at p. 575)
The parents do not contest the court's finding that the children are adoptable.
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The court found that Benjamin satisfied the first prong of the beneficial parent-child exception, because he frequently visited the children. However, the court found Benjamin did not satisfy the second prong of the beneficial parent-child relationship exception because he did not show that he shared a relationship with the children which "promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th. at p. 575; In re C.F. (2011) 193 Cal.App.4th 549, 557.)
The evidence permits the reasonable inference that the parent-child relationships were not beneficial to the children. V.E. had never lived with Benjamin and C.E. lived with Benjamin for just over one-half of his life. By the time of the section 366.26 hearing, the children had been in foster care over two years, most of that time with the foster parent. The children showed no distress when separating from Benjamin at the end of their visits, and reacted negatively to some of the visits. Benjamin's lapses in judgment during unsupervised visits with the children raised concerns about his ability to apply what he had learned, and M.G.'s significant and debilitating seizures and inability to supervise the children prevented her from providing a safe home for them. In contrast, the foster parent provided the children with a safe and stable home and was committed to adopting them.
Although Benjamin E. compares the circumstances here to those of In re Brandon C., supra, 71 Cal.App.4th 1530, that case addressed a different procedural posture than here. In In re Brandon C., the juvenile court found there was a beneficial parent-child relationship and the reviewing court, declining to reweigh the evidence, held there was substantial evidence to support that finding. (Id. at pp. 1537-1538.) We also do not reweigh the evidence; the determination on this appeal is whether there is substantial evidence to support the trial court's findings that the beneficial parent-child relationship exception did not apply. We conclude that on the facts of this case, the court's findings are fully supported.
Benjamin argues that a parent's "serious shortcomings" do not justify termination of parental rights, citing In re Amber M. (2002) 103 Cal.App.4th 681, 691, where we held there was insufficient evidence to support the court's finding that the beneficial parent-child relationship exception did not apply, and remanded the matter for a new section 366.26 hearing. While factual comparisons between cases provide insight, such comparisons can be misleading. In In re Amber M., three experts believed the minors had beneficial relationships with their parent that clearly outweighed the benefit of adoption. (In re Amber M., at p. 690.) Here, no expert disagreed with the Agency's opinion that there was no beneficial relationship.
Benjamin argues the court should have ordered additional reunification services to help him resolve his shortcomings, and selected long-term foster care or guardianship for the children until he was able to reunite with them. However, "[t]he Legislature's goals are clear: 'We have long recognized that providing children expeditious resolutions is a core concern of the entire dependency scheme.' [Citation.] '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.' " (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1061.) The children already had been in limbo for over two years and there was no guarantee Benjamin would ever be ready to parent the children appropriately. Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Because neither Benjamin nor M.G. could meet the children's needs, the children deserved to have their custody status promptly resolved and their placement made permanent and secure.
Finally, Benjamin argues there was no evidence of the long-term effect on the children of terminating the parent-child relationship or that termination would not be detrimental to the children. At review hearings, the Agency has the burden to establish by a preponderance of the evidence that return to the parents would be detrimental to the child. Once reunification services are terminated, the burden shifts to the parent to show termination of the relationship would be detrimental to the children. (In re Nolan W(2009) 45 Cal.4th 1217, 1235; In re Cynthia D. (1993) 5 Cal.4th 242, 249; see also In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Jesse B. (1992) 8 Cal.App.4th 845, 851 [finding of no detriment is implied from entry of termination order]; In re Cristella C.E. (1992) 6 Cal.App.4th 1363, 1372-1373 [no requirement that an absence of benefit from continuing the relationship be proved for termination of parental rights].)
Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the juvenile court's findings that Benjamin maintained regular visitation and contact, but the benefits to C.E. and V.E. of maintaining that relationship were outweighed by the benefits of their adoption.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR:
HUFFMAN, J.
O'ROURKE, J.