Filed 5/19/16 In re S.U. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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In re S.U. et al., Persons Coming Under the Juvenile C080798
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos. JD234519,
HEALTH AND HUMAN SERVICES, JD234520, JD234521)
Plaintiff and Respondent,
v.
T.R.,
Defendant and Appellant.
T.R., mother of the minors, appeals from orders of the juvenile court denying her
petitions for modification and terminating her parental rights. (Welf. & Inst. Code,
§§ 366.26, 388, 395 [further undesignated statutory references are to the Welfare and
Institutions Code].) Mother contends the juvenile court erred in denying her petitions for
modification without a hearing and further erred in failing to find she had established the
beneficial parental relationship exception to the preference for adoption as a permanent
plan. We affirm.
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FACTS
In March 2014, as a result of a police raid, the Sacramento County Department of
Health and Human Services (Department) filed petitions alleging two-month-old twins
S.U. and Y.U. and three-year-old A.U. were at risk of physical harm due to parental drug
possession and use and the filthy, unsafe condition of the home. Mother admitted she
and father used drugs when the minors were not present but said she had nothing to do
with the drugs and guns found in the home. The minors were detained in April 2014.
The jurisdiction/disposition report stated both parents tested positive for drugs.
During the first week in placement A.U. was dealing with the trauma of the raid and
subsequent removal by acting out the police raid in play. This behavior decreased over
time. A.U. disclosed that father beat mother. A.U. also showed some learning delays
due to lack of exposure to concepts and problem solving. In May 2014 the court
sustained the petitions and ordered reunification services for the parents. In August 2014
the juvenile court authorized placement with the paternal great-great-aunt.
The six-month review report filed in November 2014 recommended further
services for mother. Mother had no visits from April 2014 to October 2014 because she
was in custody. Thereafter, mother had twice-weekly supervised visitation. Because
father had been in custody since April 2014 and had not participated in services, the
report recommended termination of his services. The minors continued to do well in
their relative placement. The juvenile court terminated father’s reunification services and
ordered additional services for mother.
The 12-month review report, filed in April 2015, recommended termination of
mother’s services. Mother tested positive for cocaine in March 2015 and returned to
treatment but failed to complete the drug treatment portion of her case plan. Mother
visited the minors sporadically but spent her time sleeping or texting friends rather than
interacting with the minors. A.U., who was in therapy to deal with trauma suffered prior
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to removal, regressed after visits with mother, particularly if she did not set limits during
visits.
After a contested review hearing, the juvenile court terminated mother’s services
in June 2015 and set a section 366.26 hearing. In terminating services, the court noted
that criminality and drugs were key issues in the risks to the minors. As a result, drug
treatment and drug court were a part of mother’s plan because of clear indications of
polysubstance abuse. Mother was not initially eligible for drug court because she was in
custody; however, in November 2014, after her release, she moved for inclusion in the
program. Mother failed to appear at the hearing and the motion was denied. Mother
reapplied in February 2015 and in March 2015 was admitted to drug court but was again
dismissed in late March for failure to participate. The juvenile court observed that
mother’s testimony about her relapse showed she continued to blame others and make
excuses. Further, mother claimed to have attended 12-step meetings but was unable to
name any of the steps and showed no insight into her addiction. The juvenile court also
stated that mother said she participated in domestic violence counseling and benefitted
from it, but her behavior demonstrated that she had not. Mother attended services but,
according to the juvenile court, was “full of excuses” and lacked insight regarding her
choices and actions. The court found mother participated in the plan but had not
successfully completed it.
In September 2015 mother filed petitions to modify the order terminating services,
seeking an order for additional services. The petitions did not explicitly request the court
to vacate the section 366.26 hearing. Mother alleged she had enrolled in a residential job
training program, had a new support system, and had enrolled in a substance abuse
treatment program with individual and group counseling and was attending 12-step
meetings. Further, she alleged the modifications were in the minors’ best interests
because she was regularly visiting them, actively participating in visits, and increasing
her bond with them. Attached documentation showed mother had enrolled in the
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program and included test results as well as certificates of completion of several elements
of the program.
The court denied the petitions without a hearing, finding the “request does not
state new evidence or a change of circumstances” and did “not promote the best interest”
of the minors. Additionally, relying on section 366.21, subdivision (h), the juvenile court
denied the request because “the law does not allow for the provision of reunification
services to a parent when a [section] 366.26 hearing is pending.”
The assessment for the section 366.26 hearing stated mother had twice-weekly
supervised visits. The visits were appropriate and mother had not cancelled any. The
minors were healthy and developmentally normal. The twins had no behavioral issues;
however, A.U. continued to have some aggressive behaviors after visits with mother.
A.U. was in weekly therapy, working on various issues including visit transitions. The
minors continued to do well in the relative placement, and the paternal great-great-aunt
had begun the adoption home study process.
At the contested section 366.26 hearing, the father addressed the court, expressing
confusion about the proceedings and his desire to reunify with the minors when released
from custody. Mother’s counsel suggested there was a parent-child exception to
termination of her parental rights but presented no evidence on that point, relying instead
on the reports and history of the case. The court found the minors were likely to be
adopted, noting that while A.U. had some aggressive behaviors, he was subject to
redirection and was in therapy to deal with the issue. The court found there was some
level of parent-child bond, but it did not rise to a level where the minors would be
significantly harmed by termination of parental rights. The court noted A.U.’s need for
permanence and stability, and observed the level of the relationship between mother and
the minors was friendly but not necessarily parental. The court terminated parental
rights, selecting adoption as the permanent plan.
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DISCUSSION
I
Mother argues the juvenile court erred in denying her petitions for modification
without a hearing. She further contends the juvenile court erroneously relied on
section 366.21, subdivision (h) in denying her petitions.
a. Prima facie showing
A parent may bring a petition for modification of any order of the juvenile court
pursuant to section 388 based on new evidence or a showing of changed circumstances.1
“The parent requesting the change of order has the burden of establishing that the change
is justified. [Citation.] The standard of proof is a preponderance of the evidence.
[Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a
petition to modify is committed to the sound discretion of the juvenile court, and absent a
showing of a clear abuse of discretion, the decision of the juvenile court must be upheld.
(In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th
1057, 1067.)
The best interests of the child are of paramount consideration when the petition is
brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th
at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the
parent’s interests in reunification but to the needs of the child for permanence and
stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
1 Section 388 provides, in part: “Any parent . . . 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 . . . for a hearing to change,
modify, or set aside any order of court previously made or to terminate the jurisdiction of
the court.” (§ 388, subd. (a)(1).) The court must set a hearing if “it appears that the best
interests of the child . . . may be promoted by the proposed change of order . . . .” (§ 388,
subd. (d).)
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To establish the right to an evidentiary hearing, the petition must include facts
which make a prima facie showing that there is a change in circumstances and “the best
interests of the child may be promoted by the proposed change of order.” (In re
Daijah T. (2000) 83 Cal.App.4th 666, 672; see In re Zachary G. (1999) 77 Cal.App.4th
799, 806; see also In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414; see also Cal. Rules
of Court, rule 5.570(e)(1).) “The prima facie requirement is not met unless the facts
alleged, if supported by evidence . . . , would sustain a favorable decision on the
petition.” (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) “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.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) “In
determining whether the petition makes the necessary showing, the court may consider
the entire factual and procedural history of the case.” (In re Jackson W. (2010)
184 Cal.App.4th 247, 258.)
Mother’s petitions alleged she was once again in drug treatment and had
completed some elements of the program. She also alleged she was participating in job
training. However, these achievements must be viewed in light of the juvenile court’s
findings and orders at the time mother’s services were terminated. At that time, mother
had not completed drug treatment and had twice been excluded from drug court, although
by the hearing she had reengaged in the STARS program. Further, while mother had
attended the required sessions of domestic violence counseling, she had not benefitted
from the program and continued to maintain a relationship with father. Mother’s
petitions do not address this essential component of her service plan. At most, mother
alleged changing, not changed, circumstances. Further, her petitions only sought
renewed services, not return of the minors, and therefore if granted would delay
permanency for the minors, who had already waited for more than a year for mother to
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meaningfully engage in reunification. Mother failed to allege a prima facie case of
changed circumstances and the juvenile court could properly deny the petitions on that
ground alone.
Similarly, mother failed to allege that the minors’ best interests would be
promoted by the changed order since the petitions alleged only that she was now visiting
regularly and consistently and was now actively participating in visits and increasing the
parent-child bond. These allegations establish only that mother is now making efforts to
have a parental relationship with the minors, not that their interests in permanence and
stability would be furthered by the proposed modifications. The juvenile court did not
abuse its discretion in denying mother’s petitions summarily without a hearing.
b. Reliance on section 366.21, subdivision (h)
Section 366.21, subdivision (h) states, in relevant part: “In any case in which the
court orders that a hearing pursuant to Section 366.26 shall be held, it shall also order the
termination of reunification services to the parent . . . .”
It is true that the petitions did not specifically request that the section 366.26
hearing be vacated as part of the relief sought, and while that hearing is pending, no
reunification services should be provided. However, California Rules of Court,
rule 5.570(a) requires the court to liberally construe the petition in favor of its
sufficiency. (See also In re Mary G. (2007) 151 Cal.App.4th 184, 205.) In this case,
liberal construction would require the court to infer that, as part of the relief sought by the
petitions, mother also would request that the section 366.26 hearing be vacated. Without
such construction, the petitions are rendered meaningless due to a drafting oversight. The
juvenile court should have liberally construed the petitions on this point in favor of their
sufficiency. However, in light of the failure of the allegations to state a prima facie case
for relief, the error is harmless.
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II
Mother argues that the juvenile court erred in failing to apply the parent-child
beneficial relationship exception to termination of her parental rights.
At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental
rights absent circumstances under which it would be detrimental to the child.” (In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances
which permit the court to find a “compelling reason for determining that termination [of
parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The
party claiming the exception has the burden of establishing the existence of any
circumstances that constitute an exception to termination of parental rights. (In re
Melvin A. (2000) 82 Cal.App.4th 1243, 1252; In re Cristella C. (1992) 6 Cal.App.4th
1363, 1373; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code, § 500.)
Termination of parental rights may be detrimental to the minor when: “The
parents have maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) However, the
benefit to the child must promote “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; see In re C.F. (2011)
193 Cal.App.4th 549, 555.) Even frequent and loving contact is not sufficient to establish
this benefit absent a significant positive emotional attachment between parent and child.
(In re I.R. (2014) 226 Cal.App.4th 201, 213.)
Mother had no visits during the first five months of the dependency and visited
only sporadically prior to termination of her reunification services. According to the
review report, she did not interact significantly with the minors when she did visit. It was
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only in the last four months, after services were terminated and before the section 366.26
hearing, that she began to visit regularly and actively engage in visits. S.U. and Y.U.
were infants when removed from mother’s custody and had been in foster care more than
18 months. Mother’s visitation pattern was insufficient to establish a significant bond
with these two minors and she was, at best, a friendly visitor to them. A.U. was three
years old at the beginning of the dependency and clearly had some attachment to mother.
However, contact with her destabilized him and triggered aggressive, defiant behaviors.
The evidence did not establish there was a positive emotional attachment between A.U.
and mother.
All the minors, and particularly A.U., needed a permanent, stable home. The
strength and quality of the relationships between mother and the minors did not outweigh
the minors’ need for the benefit a safe, stable adoptive home would provide. The
juvenile court did not err in concluding mother failed to establish the beneficial parental
relationship exception to termination.
DISPOSITION
The orders of the juvenile court are affirmed.
RAYE , P. J.
We concur:
MAURO , J.
HOCH , J.
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