In re T.F. CA4/1 ( 2013 )

Filed 7/10/13 In re T.F. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re T.F. et al., Persons Coming Under the
Juvenile Court Law.
D063197
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518173A-D)
Plaintiff and Respondent,
v.
MARSHA S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Carol Isackson,
Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Marsha S., mother of dependent children T.F., Corey F., Kelly F. and Z.F. (collectively,
the minors), appeals a juvenile court order summarily denying her petition for modification
under Welfare and Institutions Code section 388,1 by which she sought to have the minors
returned to her custody, or alternatively, to have further reunification services. Marsha also
appeals orders terminating her parental rights to the minors, contending no substantial evidence
supports the court's findings that the beneficial parent-child relationship exception to adoption
did not apply. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2011, the San Diego County Health and Human Services Agency (Agency) filed
petitions in the juvenile court under section 300, subdivision (b), alleging eight-year-old T.F.,
six-year-old Corey, three-year-old Kelly and two-year-old Z.F. were at substantial risk of harm
because Marsha had a mental illness that caused her to threaten suicide, and she was unable to
provide regular care for the minors. Marsha said she had been coping with depression, was
overwhelmed with life and caring for her children and wanted to kill herself to end the pain.
She had previously lived in a confidential domestic violence shelter for more than a year after
being in an abusive relationship with the minors' father. The court detained the minors in out-
of-home care.
Marsha was admitted to a mental health treatment facility. She began taking medication
prescribed by her psychiatrist and was stable following her release. A short time later,
however, Marsha tried to overdose on sleeping pills, and was readmitted to the mental health
treatment facility, where she remained for almost a week.
Marsha was having unsupervised visits with the minors. The social worker
recommended Marsha's case plan include individual therapy, parenting classes and
1 All further statutory references are to the Welfare and Institutions Code.
2
psychotropic medication evaluation and monitoring. At jurisdiction and disposition hearings,
the court sustained the allegations of the petitions, declared the minors dependents, removed
them from Marsha's custody and placed them in licensed foster care. The court approved
Marsha's case plan and ordered her to comply with it.
During the next six months, Marsha did not engage in services. She eventually began
seeing a therapist, but was inconsistent in attending sessions with him. She had not seen a
psychiatrist for seven months, but was still taking her medications. Marsha did not complete a
parenting class. She continued having unsupervised visits with the minors for two hours a
week, although she periodically canceled. The minors said they enjoyed visits, at which they
ate and played at a park.
Marsha still struggled with her mental health, including having suicidal thoughts. In the
social worker's opinion, Marsha had difficulty caring for herself and she was not emotionally
healthy enough to participate in services that would prepare her to raise four young children.
Consequently, the social worker recommended the court terminate reunification services and
set a hearing under section 366.26 to select and implement permanent plans for the minors.
According to addendum reports, Marsha continued to have suicidal thoughts. She tried
to check herself into the hospital, but there were no beds available. She quit her job and
became homeless. Marsha missed three visits with the minors. She asked the social worker
for referrals to mental health services that offered housing, stating she needed structure to
address her problems.
3
In May 2012, Marsha informed the social worker that she missed the last court hearing
because she had been hospitalized. She also disclosed she had a drug addiction. Marsha failed
to meet with a substance abuse specialist when requested to do so by the social worker.
At the six-month review hearing, the court found Agency had provided Marsha with
reasonable services, but Marsha had not made substantive progress with her case plan. The
court terminated reunification services and set a section 366.26 selection and implementation
hearing.
The social worker assessed the minors as adoptable and recommended adoption as their
permanent plans. The minors were bonded to their caregiver, who was committed to adopting
all of them. T.F., Corey and Kelly said they wanted their caregiver to adopt them. Three-year-
old Z.F. was too young to express an opinion about adoption.
The social worker noted that during the early stages of the dependency proceedings,
Marsha consistently visited the minors, but by December 2011, visits became sporadic.
Marsha did not contact the caregiver to arrange for visits. In the social worker's opinion, there
was no stable parent-child relationship. She believed the minors needed stability, safety and
permanency, which their caregiver wanted to provide.
In September 2012, Marsha requested visits with the minors for the first time in seven
months. She had entered an inpatient recovery program in July after testing positive for
methamphetamine and marijuana. Drug tests in August and September were negative. Marsha
resumed visits with the minors on September 22. The first visit occurred at Marsha's drug
treatment facility, and Marsha provided backpacks, snacks and drinks for the minors. Later
visits took place at a park, and the minors seemed to enjoy their time with Marsha, although
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they sometimes sought the attention of their caregiver. The social worker and the caregiver
reported the minors had no negative reactions when visits ended.
Once visits with Marsha resumed, Corey began having behavior problems. He was
angry when he saw Marsha smoking a cigarette because there was a no smoking sign at her
drug treatment facility. Corey said Marsha told him and his younger sisters to do bad things so
that they could move to another home. He told the caregiver he did not want to return to
Marsha's home because "she will hit me with a belt with studs." Z.F. also began to show
anxiety about visits with Marsha by wetting the bed.
Marsha completed 12 parenting classes through her residential drug treatment program.
Once she completed the rehabilitation phase of the program, she would transition to a six-
month aftercare program.
In November 2012, Marsha filed a section 388 petition for modification, seeking to
have the minors returned to her care with family maintenance services. Alternatively, Marsha
sought further reunification services to the 24-month date. The petition alleged Marsha's
circumstances had changed and the proposed modification was in the minors' best interests.
The social worker observed two visits between Marsha and the minors in November.
Marsha cancelled a third visit because of rainy weather and admitted she had not followed
through on finding an alternative visitation site. Visits generally went well, although Marsha
sometimes focused on the older children while Z.F. wandered around confused and looking for
her. Marsha brought snacks, engaged the minors in play, took them to the restroom when
necessary and walked them to the car when visits ended. The minors experienced no distress
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at the end of visits. The social worker continued to recommend adoption as the minors'
permanent plans.
The minors' court-appointed special advocate (CASA) reported the minors were
thriving in the home of their caregiver. They called the caregiver "mom," and felt safe and
secure with her. T.F. and Corey wanted the caregiver to adopt them. The CASA noted that
during visits, Marsha did not pay attention to Kelly and Z.F., and instead relied on T.F. and
Corey to ensure their safety. The CASA recommended a permanent plan of adoption for all
four minors.
The court considered Marsha's section 388 petition, reviewed the information provided
and heard arguments of counsel. Finding Marsha had not made a prima facie showing of
changed circumstances or best interests, the court denied the petition without an evidentiary
hearing.
According to a December 2012 addendum report, Marsha recently disclosed she had
been seeing a psychiatrist and was taking three psychotropic medications. She telephoned
Agency to report the minors were in the hospital, unconscious, following a car accident. When
the social worker spoke to Marsha, she said the caregiver told her about the accident and said
only T.F. and Z.F., not Corey or Kelly, were unconscious. Marsha said the caregiver would
not tell her which hospital the minors were in.
The CASA went to the caregiver's home and learned there had been no car accident, the
minors were fine and the caregiver had not spoken to Marsha. When the social worker
followed up with Marsha, she insisted she had spoken to the caregiver on a pay telephone in
6
the rehabilitation facility, but there were no witnesses. The next visit was cancelled because
the social worker was concerned about Marsha's mental health.
At the contested selection and implementation hearing in December 2012, the court
received in evidence Agency's reports and the stipulated testimony of Corey and T.F. If called
to testify, Corey would say he enjoyed weekly visits with Marsha and they had fun. He missed
her between visits. Corey felt sad when Marsha told him to misbehave so the minors could
move to another home. Corey liked living with the caregiver and would be sad if he had to
leave. Although Corey was not afraid to live with Marsha, he preferred to be adopted by the
caregiver. He was "really, really sure" that he wanted the caregiver to adopt him.
According to T.F.'s stipulated testimony, visits with Marsha were good because she
played with the minors, was nice to them, brought them snacks and they had fun. If given a
choice, she would stay with the caregiver, who fed her and made her feel safe. T.F. would
choose to live in a big house with her siblings and the caregiver. She wanted to be adopted by
the caregiver.
Marsha testified she had been visiting the minors every Saturday for two hours, usually
in Balboa Park, for the past three months. She brought snacks and water to visits, and once
brought the minors backpacks with school supplies. Marsha played with the minors and
generally interacted with them. The minors referred to her as "mom" or "mommy Marsha."
They ran to her at the beginning of visits, and occasionally had difficulty separating from her
when visits ended.
7
After considering the evidence and arguments of counsel, the court found the minors
were likely to be adopted and none of the exceptions to adoption applied. The court terminated
parental rights and referred the minors for adoptive placement.
DISCUSSION
I
Marsha contends the court erred by summarily denying her section 388 modification
petition. She asserts she made a prima facie showing her circumstances had changed and
providing her with further reunification services was in the minors' best interests.2
A
A party may petition the court under section 388 to change, modify or set aside a
previous court order. The petitioning party has the burden of showing, by a preponderance of
the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed
change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal. 4th 398, 415; In re
Casey D. (1999) 70 Cal. App. 4th 38, 47.) The petition must be liberally construed in favor of
its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal. 4th 295,
309.) "The parent need only make a prima facie showing to trigger the right to proceed by way
of a full hearing." (In re Marilyn H., at p. 310.) " '[I]f the petition presents any evidence that a
hearing would promote the best interests of the child, the court will order the hearing.'
[Citation.]" (In re Jasmon O., at p. 415.) If, however, "the liberally construed allegations of
the petition do not make a prima facie showing of changed circumstances and that the
2 Marsha's section 388 petition sought return of the minors to her custody, or
alternatively, further reunification services. On appeal, Marsha has abandoned her request for
an order returning the minors to her custody.
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proposed change would promote the best interests of the child, the court need not order a
hearing on the petition. [Citations.] 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.) In determining
whether the petition makes the necessary showing, the court may consider the entire factual
and procedural history of the case. (In re Justice P. (2004) 123 Cal. App. 4th 181, 188-189.)
B
Here, Marsha's modification petition alleged her circumstances had changed because
she enrolled in residential drug treatment; she had been clean and sober for 115 days and
progressed to phase II of the program; she participated in various treatment groups; she
completed a parenting program; and she consistently visited the minors. The petition further
alleged that providing Marsha with additional reunification services was in the minors' best
interests because the minors were bonded to her and recognized her as their mother; visits were
positive; Marsha was able to practice the skills she learned from parenting classes; the minors
would benefit from more time with a mother who was sober and able to provide them with a
safe and loving home; and the goal of family preservation would ultimately be achieved.
Although Marsha was in the process of addressing her substance abuse and had
reestablished contact with the minors, "[n]ot every change in circumstance can justify
modification of a prior order." (In re A.A. (2012) 203 Cal. App. 4th 597, 612.) Instead, "the
problem that initially brought the child within the dependency system must be removed or
ameliorated." (Ibid.; see also In re B.D. (2008) 159 Cal. App. 4th 1218, 1230.) Here, the basis
for the juvenile court's intervention and the primary reason for the minors' removal was
9
Marsha's mental illness, which resulted in her inability to provide proper care for the minors.
Marsha had been depressed and overwhelmed, causing her to threaten suicide. While under
psychiatric care, Marsha again tried to commit suicide. Throughout the reunification period,
she continued to struggle with mental health issues, including having suicidal thoughts, which
prevented her from effectively participating in services that would allow her to reunify with the
minors. Contrary to Marsha's assertion, she was not yet "mentally sound" at the time she filed
her section 388 petition. In December 2012, Marsha's mental stability was again called into
question when she falsely claimed the caregiver told her the minors had been seriously injured
in a car accident.3 Thus, Marsha did not make a prima facie showing she had changed the
circumstance—her serious mental illness—that prevented her from reunifying with the minors
and resulted in the termination of her reunification services. (See In re A.A., at p. 612
[incarcerated mother did not show changed circumstances where, despite completing various
services and programs, she was still serving a prison sentence]; In re Kimberly F. (1997) 56
Cal. App. 4th 519, 532 [in evaluating changed circumstances, one criterion court should
consider is seriousness of problem that led to dependency and reason for continuation of that
problem].)
With respect to allegations concerning Marsha's sobriety, parenting and visitation, the
petition and supporting documentation show, at most, her circumstances were "changing," but
had not changed. (In re Casey D., supra, 70 Cal.App.4th at p. 47.) Marsha was three months
into a six- to nine-month substance abuse program, which then required three months of
aftercare. Although Marsha had been drug free for 115 days, the petition did not allege, and
3 This episode occurred while Marsha was under the care of a psychiatrist and receiving
treatment at a mental health facility.
10
the record did not show, she had taken steps to sustain her treatment gains such as having a
sufficient support system or obtaining a sponsor. Viewed in context, Marsha had just begun
the difficult task of maintaining her sobriety. (See In re Kimberly F., supra, 56 Cal.App.4th at
p. 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much longer period
than 120 days to show real reform."].) A petition like Marsha's that alleges changing
circumstances does not promote stability for a child or the child's best interests because it
would mean delaying the selection of a permanent home to see if a parent, who has failed to
reunify with the child, might be able to reunify at some future point. "Childhood does not wait
for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) Thus, the
changes alleged in Marsha's petition were "not legally sufficient to require a hearing on her
section 388 petition." (In re Angel B. (2002) 97 Cal. App. 4th 454, 465.)4
In any event, Marsha's petition did not make a prima facie showing that offering her
additional services, and thereby delaying permanency for the minors, would serve the minors'
best interests. Although the minors love Marsha, know she is their mother and enjoy visits
with her, "[t]he presumption favoring natural parents by itself does not satisfy the best interests
prong of section 388." (In re Justice P., supra, 123 Cal.App.4th at p. 192.) Marsha's absence
from the minors' lives for seven months caused their relationship with her to deteriorate. The
minors are thriving in the home of a caregiver who is committed to adopting them.
Where, as here, reunification services have been terminated, a parent's "interest in the
care, custody and companionship of the child [is] no longer paramount. Rather, at this point,
4 Nothing in the record indicates the court misunderstood the difference between the
"pleading burden" and the "burden of proof," or that the court misunderstood the law regarding
changed circumstances.
11
'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 of the child."
(In re Stephanie M. (1994) 7 Cal. 4th 295, 317; see also In re C.J.W. (2007) 157 Cal. App. 4th
1075, 1081 [summary denial of section 388 petition was proper where there was no showing of
how the children's best interests would be served by depriving them of a permanent stable
home in exchange for an uncertain future].) The proper focus of this case was the minors' need
for stability, continuity and permanency, regardless of Marsha's interest in reunification. (In re
Stephanie M., at pp. 317-318; In re Brittany K. (2005) 127 Cal. App. 4th 1497, 1507.) Because
the liberally construed allegations of the petition would not have sustained a favorable decision
on the section 388 petition, Marsha was not entitled to an evidentiary hearing. (In re Zachary
G., supra, 77 Cal.App.4th at p. 808; In re Mary G. (2007) 151 Cal. App. 4th 184, 205-206.)
II
Marsha challenges the sufficiency of the evidence to support the court's finding the
beneficial parent-child relationship exception to adoption did not apply to preclude terminating
her parental rights. She asserts she shared a bond with Kelly and Z.F., who considered her to
be their mother, enjoyed spending time with her and would be harmed by the severance of their
relationship with her. Marsha further asserts because Kelly and Z.F. were part of a bonded
sibling group that needed to remain together under the same permanent plan, her parental
rights should have been preserved as to all four minors.
A
After reunification services are terminated, the focus of a dependency proceeding shifts
from preserving the family to promoting the best interests of the child, including the child's
12
interest in a stable, permanent placement that allows the caregiver to make a full emotional
commitment to the child. (In re Fernando M. (2006) 138 Cal. App. 4th 529, 534.) At the
selection and implementation hearing, the court has three options: (1) terminate parental rights
and order adoption as the permanent plan; (2) appoint a legal guardian for the child; or (3)
order the child placed in long-term foster care. (Ibid.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re
Autumn H. (1994) 27 Cal. App. 4th 567, 573.) If the court finds a child cannot be returned to
his or her parent and is likely to be adopted if parental rights are terminated, it must select
adoption as the permanent plan unless it finds termination of parental rights would be
detrimental to the child under one of the specified statutory exceptions. (§ 366.26, subd.
(c)(1)(A) & (B)(i)-(vi); In re Erik P. (2002) 104 Cal. App. 4th 395, 401.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption
preference if termination of parental rights 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." We have interpreted the phrase " 'benefit from
continuing the . . . relationship' " to refer to a parent-child relationship 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 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. 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
13
parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord,
In re Jason J. (2009) 175 Cal. App. 4th 922, 936.)
To meet the burden of proof for this statutory exception, the parent must show more
than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re
Derek W. (1999) 73 Cal. App. 4th 823, 827.) The parent must show he or she occupies a
parental role in the child's life, resulting in a significant, positive emotional attachment from
child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal. App. 4th 318, 324.)
We review an order terminating parental rights for substantial evidence. (In re Autumn
H., supra, 27 Cal.App.4th at p. 576.) If, on the entire record, there is substantial evidence to
support the findings of the juvenile court, we uphold those findings. We do not consider the
credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence.
Instead, we draw all reasonable inferences in support of the findings, view the record favorably
to the juvenile court's order and affirm the order even if there is substantial evidence
supporting a contrary finding. (In re Casey D., supra, 70 Cal.App.4th at p. 53; In re Baby Boy
L. (1994) 24 Cal. App. 4th 596, 610.) The parent has the burden of showing there is no
evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L.
(2002) 101 Cal. App. 4th 942, 947.)
B
During the first few months of the dependency proceedings, Marsha had regular
unsupervised visits with the minors. However, by December 2011, visits became sporadic and,
by February 2012, Marsha stopped visiting altogether. She had no further contact with the
minors for seven months and resumed visits a little more than two months before the selection
14
and implementation hearing. This was not the type of regular visitation and contact
contemplated by the Legislature when it provided for an exception to the adoption preference.
(§ 366.26, subd. (c)(1)(B)(i).)
Even if the visitation and contact Marsha had with the minors can be characterized as
"regular," she did not meet her burden of showing there was a beneficial parent-child
relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(B)(i).
During Marsha's absence from the minors' lives, caused in part by her substance abuse,
the minors had to rely on others to meet their daily needs. Consequently, their relationship
with Marsha deteriorated and was no longer parental. T.F. and Corey were confused about
their permanent plans because Marsha told them they would be returning home to her.
Nevertheless, T.F. and Corey were clear about wanting the caregiver to adopt them. Marsha
showed love and concern for the minors, but sometimes had difficulty supervising Kelly and
Z.F. during visits, relying instead on T.F. and Corey to ensure their safety. Although Kelly and
Z.F. were affectionate toward Marsha and enjoyed weekly visits with her, they were not
adversely affected when visits ended. "A biological parent who has failed to reunify with an
adoptable child may not 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 Angel B., supra, 97 Cal.App.4th at p. 466.) The love and affection Marsha shared with
the minors during visits was not enough to show the minors had a " 'significant, positive,
emotional attachment' " to her such that terminating the parent-child relationship would result
in great harm to these children. (In re Jason J., supra, 175 Cal.App.4th at pp. 936-938; In re
Autumn H., supra, 27 Cal.App.4th at p. 575.)
15
Further, Marsha did not show that maintaining the parent-child relationship outweighed
the benefits of adoption for the minors. In the social worker's opinion, the minors' need for
stability, safety and permanency outweighed any possible detriment that would be caused by
severing the parental relationship. The court was required to, and did, weigh the strength and
quality of the parent-child relationship, and the detriment involved in terminating it, against the
potential benefit of an adoptive home for the minors. We do not reweigh the evidence or
substitute our judgment for that of the juvenile court. (In re Casey D., supra, 70 Cal.App.4th
at p. 53.)
Although Marsha believes that a permanent plan other than adoption would serve the
minors' best interests, adoption is the only option that would provide this bonded sibling set
with the stability and permanence that they so desperately need. (In re Beatrice M. (1994) 29
Cal. App. 4th 1411, 1419 [Legislature has decreed guardianship is not in best interests of
children who cannot be returned to their parents; only adoption affords the most permanent and
secure alternative]; In re Ronell A. (1996) 44 Cal. App. 4th 1352, 1368-1369 [parents'
preference to preserve family unit does not override best interests of minors in stability and
security of adoptive home].) Substantial evidence supports the court's finding the beneficial
parent-child relationship exception did not apply to preclude terminating parental rights.
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DISPOSITION
The orders are affirmed.
IRION, J.
WE CONCUR:
MCINTYRE, Acting P. J.
AARON, J.
17