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In Re Sa.G. et al., Persons Coming Under the Juvenile Court v. S.G

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


April 19, 2011

IN RE SA.G. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
S.G., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. JD227367, JD227368)

The opinion of the court was delivered by: Nicholson, J.

In re Sa. G.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

S.G., father of the minors, appeals from orders of the juvenile court terminating his parental rights and denying his petition for modification. (Welf. & Inst. Code, §§ 366.26, 388, 395.)*fn1 Appellant contends the court abused its discretion in denying his petitions for modification without a hearing and erred in failing to find he had established the benefit exception to the preference for adoption. We affirm.

FACTS

In April 2008, the minors, four-year-old Sa.G. and six-year-old Sh.G., were removed from the home of the maternal great-grandmother, at her request, due to her inability to provide for the minors. The minors were left in her care by appellant. Appellant had been arrested in March 2008 and remained in custody at the time of the removal.

In July 2008, the Sacramento County Department of Health and Human Services (Department) filed amended petitions alleging the mother had ongoing substance abuse problems and appellant was still in custody. The juvenile court sustained the petitions and ordered reunification services for both parents.

The six-month review report documented appellant was released from custody in December 2008 and was referred to services. Both minors were reported to be in therapy and beginning to stabilize in foster placement although Sh.G. had problems with aggression. The court ordered further services.

The permanency report documented appellant had visited the minors consistently following his release from prison and demonstrated appropriate parenting. Appellant had not complied with any part of his service plan except drug testing as a condition of his parole and had not provided proof of any services he completed in custody. He tested positive for methamphetamine in May 2009. Prior to the contested permanency hearing, appellant did provide proof of his in-custody services. The court adopted the Department's recommendation for further services.

The permanency review report discussed the minors' multiple placements, which had characterized the case. The multiple placements were due, in part, to problems with the foster homes, i.e., lack of room and no longer providing foster care, and to Sh.G.'s ongoing behavioral problems which resulted in a seven-day notice to remove her. At the time of the report in October 2009, the minors were placed separately. Both minors were still in therapy. Appellant continued to visit weekly and was allowed to stay at the hospital overnight when Sh.G. was admitted to deal with a medical malady. Visits remained appropriate. Appellant had not participated in services, except testing as a condition of his parole and the tests were negative. Appellant was arrested on a parole violation in November 2009, just prior to the permanency review hearing. The court terminated his reunification services and set a selection and implementation hearing.

The assessment for the selection and implementation hearing documented appellant was released from custody in February 2010 and went to an inpatient drug treatment program, but had not yet requested visits. The minors had again been moved to new placements and were currently separated. The minors were not in adoptive placements. The Department requested a continuance of the hearing to evaluate the maternal great-grandmother for placement.

An addendum filed in June 2010 documented the Department denied placement with the maternal great-grandmother. The addendum documented the minors were now placed together and the current caretakers, who had cared for Sh.G. for eight months and Sa.G. for four months, wanted to adopt them.

In late July 2010, appellant was again in custody. In August 2010, just prior to the contested selection and implementation hearing, appellant filed petitions for modification seeking return of the minors or reinstatement of reunification services. In support of the petitions, appellant alleged circumstances had changed because he engaged in substance abuse treatment after his release from custody in February 2010 and was attending a 12-step program from May through mid-July of 2010. Appellant alleged the modification would be in the minors' best interests because the minors would be back in the care of their biological father. Appellant further alleged he had visited consistently, had a positive relationship with the minors, and could provide them a stable home. The court denied the petitions for modification without a hearing.

No additional evidence beyond the Department's reports was presented at the contested selection and implementation hearing. Appellant objected to denial of his petitions for modification without a hearing and objected to termination of parental rights, arguing he had a bond with the minors and visits with them went well. The juvenile court found the minors generally adoptable and no exceptions to the preference for adoption were established. The court acknowledged visits between appellant and the minors went well and agreed there might be a bond between them, but that any bond did not outweigh the minors' needs for permanence and stability which adoption would offer them. The juvenile court terminated parental rights.

DISCUSSION

I

Appellant contends the juvenile court abused its discretion in denying his petitions for modification without a hearing.

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.*fn2 "The parent requesting the change of order has the burden of establishing that the change is justified." (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.)

To justify a hearing on the petition, the parent must make a prima facie showing of changed circumstances and the proposed order is in the minor's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) That is, the facts alleged, if supported by evidence at the hearing, would sustain a favorable decision on the petition. (Ibid.) "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.)

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 that 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.)

Here, appellant was in custody prior to the minors' removal until just before the six-month review hearing, did not comply with the reunification plan during the 18-month reunification period, tested positive for methamphetamine five months after his release from prison, and was again arrested just prior to the 18-month review hearing. His petition for modification alleges he completed substance abuse treatment in February and March of 2010, after services were terminated and following his release from custody. It is unclear whether participation in substance abuse treatment was a condition of his release. He also alleges he attended 12-step meetings from May 2010 to mid-July 2010. At that point he was again arrested on a parole violation. The evidence shows, at most, that appellant had made some effort to address his substance abuse problems; however, he continued to violate parole and return to custody, which was the circumstance that initially led to the minors' removal. Appellant did not make a prima facie showing of changed circumstances.

Even were we to consider appellant's efforts to address his substance abuse problems as a change in circumstances, which we do not, the petition alleges only conclusory statements about appellant's status as a biological parent and the minors' generalized interest in maintaining ties with family. These statements do not demonstrate it would be in the minors' best interests either to be removed from a stable adoptive placement and be returned to appellant or to face further uncertainty while additional services, which appellant had previously ignored, were offered. The juvenile court did not abuse its discretion in denying appellant's petition for modification without a hearing.

II

Appellant argues the evidence established the benefit exception to the preference for adoption as a permanent plan for an adoptable child. We disagree.

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.]' [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, original italics.) 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 which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code, § 500.)

One of the circumstances in which termination of parental rights would be detrimental to the minor is: "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).) 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 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 parent's rights are not terminated.'" (In re Autumn H. (1994) 27 Cal.App.4th, 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)

The benefit exception has two conditions which must be satisfied. Appellant did not meet his burden to satisfy either one. The first condition is that appellant maintained regular visitation and contact with the child. It is undisputed that when he was not in custody, appellant consistently visited the minors. However, during the two years of the dependency case, appellant was in custody for the first eight months, out of custody for almost a year, in custody for another three months, out of custody for five months and then back in custody, being released just prior to the selection and implementation hearing. During his incarceration, and part of the period when he was in substance abuse treatment, appellant did not visit the minors or have any contact with them. He cannot be said to have maintained regular visitation and contact.

The second condition is that continued contact must benefit the minors. Even conceding, as did the juvenile court, that there might be a bond between appellant and the minors, it is apparent that after their many placements and the uncertainties of life with their parents and in foster care, the minors desperately needed the stability which the current adoptive home afforded. Appellant's bond with the minors did not outweigh the benefit to them of a permanent and stable home. The court correctly concluded appellant failed to establish an exception to the preference for adoption.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: BLEASE , Acting P. J. MAURO , J.


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