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In Re A.M. et al., Persons Coming Under the Juvenile Court v. G.R


August 12, 2011


(Super. Ct. Nos. 08JVSQ2643702, 08JVSQ2643802, 08JVSQ2684802)

The opinion of the court was delivered by: Duarte ,j.

In re A.M. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

G.R. (mother) appeals from the juvenile court's orders terminating her parental rights and ordering a permanent plan of adoption as to minors A.M. (a female born in 2003), Cod.M. (a male born in 2005), and Cou.M. (a female born in 2007). (Welf. & Inst. Code,*fn1 § 366.26.)

Mother contends the court erred by (1) summarily denying her section 388 modification petitions without a hearing, and (2) rejecting her claim that the beneficial parental relationship exception to adoption applied.

We disagree and shall affirm.


This is the second appeal in this case. In the first appeal, we affirmed the juvenile court's order denying reunification services to mother on grounds of mental disability. (§ 361.5, subd. (b)(2).) (In re A.M. et al. (Dec. 1, 2010, C062237) [nonpub. opn.].) We judicially notice our prior opinion and adopt and incorporate by reference the facts from that opinion, which discuss events occurring between April 2006 and April 2009. (Evid. Code, §§ 452, 459.)

Following a contested dispositional hearing on April 30, 2009, the juvenile court denied services to mother*fn2 but provided them to father. (In re A.M. et al., supra, pp. 15-17.) A status review report filed October 19, 2009, by the Shasta County Department of Social Services (Department) recommended terminating father's services and setting a section 366.26 hearing. The report concluded that, among other things, mother had made no progress.

An addendum report filed January 6, 2010, revealed that father had been sentenced to two years in prison and ordered to have no contact with A.M. and Cod.M. Mother had completed a program called Options for Recovery in October 2009, but her visits with the minors were still chaotic and had been reduced to one hour, twice per month.

At the six-month review hearing on January 15, 2010, the juvenile court terminated father's services and set a section 366.26 hearing.

The selection and implementation hearing report, filed April 23, 2010, recommended terminating mother's parental rights. The report stated that since February 22, 2010, the minors (at that time, ages six, four, and two) had been placed together in a prospective adoptive home. The minors were all adoptable, and the foster parents, who met all their needs and whom they called "Mom" and "Dad," wished to adopt them. The minors' overall behavior had improved now that mother's visits had diminished; the quality of her visits remained poor.

On May 12, 2010, mother filed section 388 petitions, seeking the return of the minors with termination of the dependency or under a family maintenance plan, or, alternatively, reinstatement of reunification services. Mother alleged she had "remained clean and sober for over 18 months. She has relocated to be away from the father[.] She has actively participated in over 21 additional Parents In Control classes with Barbara Sebastian. She continues to attend AA/NA meetings. She completed the Options group program[.]" Mother added: "Such an order will reunify these children with their mother and preserve the family unit. These children have a bond with their mother which should be preserved." The petitions did not attach documentation.

On May 14, 2010, the juvenile court set the section 388 petitions for hearing on June 11, 2010. On May 24, 2010, the Department filed opposition to the petitions.

An addendum report filed May 27, 2010, revealed that the Department had learned the circumstances surrounding the birth of another child to mother in March 2010. Apparently, mother had gone to a hospital in Oregon, requesting to have her labor induced. She gave an address in Redding, but would not explain why she did not go to a hospital there. The Oregon hospital declined to induce labor. Mother did ultimately give birth around March 15, 2010, in Oregon, and the Oregon Department of Human Services had removed the baby from mother's custody and initiated dependency proceedings.

Mother admitted that father was also the newborn's father, and that she had maintained written contact with him as recently as May 4, 2010, while he remained incarcerated--she added that she would [now] "stop writing to him." The social worker in Oregon had significant concerns about mother's dishonesty and denial as to the issues that had caused the removal of all four minors from her custody.

A.M., Cod.M., and Cou.M. were thriving in their current placement and appeared very happy. A.M. and Cod.M. stated their desire to be adopted as soon as possible; Cou.M. was too young to understand adoption, but said she was happy and expressed affection toward the prospective adoptive parents. The older minors were doing well academically and socially. The prospective adoptive parents reported no major behavioral concerns.

It was the Department's opinion that the minors had "endured a childhood of disruption, instability, uncertainty, and chaos" due to their parents' unresolved substance abuse, mental health problems, domestic violence, and criminal conduct, which likely contributed to the minors' prior behavioral problems and developmental delay. They had been in the dependency system for most of their lives. They needed and deserved the permanency and stability of adoption.

On June 11, 2010, the juvenile court heard argument on mother's section 388 petition. At the outset, the court stated: "[A]fter reading everything that I read, had I known it then, I would not have set this for hearing, and would have just summarily denied it. Because I, too, [like the Department], do not see a change in circumstances that would warrant the request. [¶] But let's make a record and maybe change my mind."

Mother's counsel made an offer of proof that if called to testify, mother would describe the services she had done on her own (thus allegedly rebutting the psychological evaluations which claimed further services would not benefit her) and would dispute the latest addendum report. Opposing counsel argued that such self-serving testimony, lacking support from experts or documentation (which had not been provided), would not show a change in circumstances. Finding that there had been no showing of changed circumstances, the juvenile court denied mother's petition.

On June 15, 2010, the juvenile court heard mother's testimony at the section 366.26 hearing. Mother testified that she had lived in Klamath Falls, Oregon, since November 2009. She continued to pursue services, including personal counseling, parenting classes, and domestic violence classes; she was also drug testing.*fn3 She had supervised visits with the minors, once a month for an hour at a time. Visits were filled with activities and conversation. There were no discipline problems. The minors were always happy and excited to see her and sad when she had to leave. They asked her if they could come home. A.M. had asked for her phone number, but the social worker supervising the visit said mother could not give it to her. She did not have contact with the minors other than visits.

After hearing argument, the juvenile court found: "I agree that termination of parental rights is in the best interest of these children. Whatever services mother may be participating in now, it is way too late in the game. Considering that . . . one child has been in this system for the child's entire life except for about a month and [Cod.M.] has been involved in this system for about two thirds of his life and . . . [A.M.] has been involved with the system for four years [or] just under five years of her life. So that is a significant period of time that these parents have had opportunities, time and time again, to reunify with their children. And the visits were chaotic for a long period of time. They may be improving now[.] I agree with [the minors' counsel], I think right now any comments by any of the children that they want to go home are more out of loyalty and they may have some divided interests, but they clearly have a strong bond with the foster parents. They are thriving in foster care. Both [Cod.M.] and [A.M.] are reportedly making statements can we stay here forever, referring to the foster home. They are referring to their foster parents as mom and dad, and it appears to the Court that they are clearly going to be adopted by those foster parents. And even if not, these children are highly adoptable and adoption is the appropriate plan."*fn4

The juvenile court then terminated mother's parental rights and ordered a permanent plan of adoption.



Section 388 Petition

Mother contends the juvenile court abused its discretion by denying her section 388 petitions without holding an evidentiary hearing. We disagree.

A. Standard of Review

We review a summary denial of a hearing on a section 388 petition for abuse of discretion. (In re A.S. (2009) 180 Cal.App.4th 351, 358.)

B. Petition Requirements

A petition to modify a juvenile court order under section 388 must allege facts showing that new evidence or changed circumstances exist, and that changing the order will serve the minors' best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) A parent filing a section 388 petition must make only a prima facie showing in order to obtain an evidentiary hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) A prima facie showing is one which alleges facts that, if supported by the evidence, would justify a favorable decision. (In re Daijah T., supra, 83 Cal.App.4th at p. 673.) The petition must be liberally construed in favor of its sufficiency. (In re Daijah T., supra, at p. 674, fn. 2.) However, if the juvenile court finds that the petition does not make a prima facie showing, the court may deny it summarily without an evidentiary hearing. (See In re Zachary G. (1999) 77 Cal.App.4th 799, 808; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799-1800; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

C. The Juvenile Court's Decision

We conclude the juvenile court did not abuse its discretion by summarily denying mother's petition.

First, the court was within its discretion to find that the petition did not make a prima facie showing of changed circumstances. But even assuming for the sake of argument that the section 388 petition set forth changed circumstances, it did not make a prima facie showing that the requested change was in the minors' best interests.

When a section 366.26 hearing has been set, a parent's interest in reunification is outweighed by the minors' interest in stability and permanence. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) In her attempt to demonstrate that reopening reunification services or returning the minors to her custody would be in their best interests at this late stage of the proceedings, mother alleged only that she and the minors were a family and their bond should be preserved. But the assumption that preserving a family's bond is in the minors' best interests, regardless of any other facts or circumstances, is contrary to the entire scheme of dependency law.

Particularly when considering the history of this case, the court could reasonably have denied mother's petition summarily on this ground alone; therefore there was no abuse of discretion. (See California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731.)


Exception to Adoption

Mother contends the juvenile court erred by ruling that she had not proven the existence of the beneficial parental relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.

A. Burden and Standard of Review

The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998; In re Zachary G., supra, 77 Cal.App.4th at p. 809; Cal. Rules of Court, rule 5.725(e)(3).) We uphold a juvenile court's ruling declining to find such an exception if the ruling is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

B. The Law

At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for the minors; the permanent plan preferred by the Legislature is adoption. If the minors are adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

To prove that the beneficial parental relationship exception applies, the parent must show that he or she "ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) It is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) There must be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) But even where such an attachment exists, it does not preclude adoption if the minors look to their prospective adoptive parents to meet their needs. (In re Zachary G., supra, 77 Cal.App.4th at p. 811.)

"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., supra, 78 Cal.App.4th at p. 1350.) This is not such a case.

Mother's evidence, even construed in the manner most favorable to her, established that she had visited these very young minors regularly and that some relationship may have remained, at least with A.M. It is not clear, however, that any attachment was "significant" or "positive." It is clear that all three minors looked to their prospective adoptive parents, whom they called "Mom" and "Dad," to meet their needs. This alone was substantial evidence in support of the juvenile court's ruling.


The juvenile court's orders are affirmed.

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

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