Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County Super. Ct. Nos. DP012183 & DP012184, Carolyn Kirkwood, Judge. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Nicole Walsh, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
OPINION
FYBEL, J.
INTRODUCTION
C.G. (Mother) appeals following an order terminating her parental rights over her daughters A.G. and L.G., now five years old and four years old, respectively (collectively, the children). In August 2005, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition alleging, inter alia, Mother failed to protect the children. (Welf. & Inst. Code, § 300, subd. (b).) (All further statutory references are to the Welfare and Institutions Code.) The children were detained at that time and have never since been returned to Mother’s custody.
In May 2007, the juvenile court terminated reunification services and set a permanency hearing. Mother filed a petition under section 388 seeking the return of the children to her care, a 60-day trial visit, or reinstatement of reunification services including increased visitation. The juvenile court summarily denied the petition. In May 2008, following a hearing, the court terminated Mother’s parental rights.
Mother contends the juvenile court (1) abused its discretion by summarily denying her section 388 petition after granting SSA’s motion to strike portions of the petition; (2) erred by terminating her parental rights because it did not make a finding of current detriment at the time of the permanency hearing; and (3) further erred by finding the parent-child relationship exception to the termination of parental rights under section 366.26, subdivision (c)(1)(B)(i) inapplicable. We affirm.
First, even assuming Mother’s section 388 petition presented a prima facie case of a change of circumstances or new evidence, the petition failed to show Mother’s proposed modification would be in the children’s best interests. Furthermore, even if the juvenile court erred by granting SSA’s motion to strike certain portions of the petition, any such error would be harmless because the portions that were stricken did not show the proposed modification would be in the children’s best interests. The juvenile court, therefore, did not abuse its discretion by denying the petition.
Second, the record shows the juvenile court made sufficient findings of detriment, by clear and convincing evidence, throughout the dependency proceedings. We find no error.
Finally, although evidence at the permanency hearing showed Mother regularly visited the children and her interactions with them were positive, she did not satisfy her burden to show that severing her relationship with the children would deprive them of a “substantial, positive emotional attachment such that the child[ren] would be greatly harmed.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
BACKGROUND
I.
The Children Are Detained; Mother Pleads No Contest to Amended Juvenile Dependency Petition and Stipulates to Detriment Finding
In August 2005, two-year-old A.G. and 14-month-old L.G. were taken into protective custody and placed in Orangewood Children’s Home. At a pretrial hearing in October, Mother and the children’s presumed father, J.G. (Father), pleaded no contest to the amended juvenile dependency petition filed by SSA, which alleged Mother and Father failed to protect the children within the meaning of section 300, subdivision (b). The amended petition contained the following allegations: (1) Mother’s lack of supervision placed the children “at great risk of harm and possible death” in August 2005 when the children “accessed bottles of liquid Children’s Tylenol and generic cough syrup”; (2) “[o]n at least one occasion, the mother has left the children unattended in the home”; (3) “[o]n at least one occasion, the mother struck the child A[.G.], with an open hand causing bruising”; (4) Mother and Father have an “ongoing conflictual relationship, which on at least one occasion escalated into an incident of physical domestic violence, in which the mother hit the father in the face”; (5) Mother has a history of substance abuse, which includes the use of methamphetamine, and completed an outpatient drug treatment program in 2002; (6) Mother has “a current, unresolved, alcohol abuse problem”; and (7) Father has an unresolved substance abuse history including but not limited to alcohol. The juvenile court dismissed other allegations in the original petition which alleged the children also came within the provision of section 300, subdivision (a) (serious physical harm).
Father is not a party to this appeal. We only refer to Father as is relevant to the issues presented by Mother in this appeal.
At the same October 2005 pretrial hearing, Mother and Father further stipulated that (1) the juvenile court should declare the children dependent children of the court; (2) reasonable efforts had been made to prevent or eliminate the need for the children’s removal from their home; and (3) the court should make findings by clear and convincing evidence that section 361, subdivision (c)(1) applies, vesting custody with Mother and Father would be detrimental to the children, and vesting custody with SSA is necessary to serve the children’s best interests.
Section 361, subdivision (c)(1) provides in part: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody.”
The juvenile court accepted the stipulation into evidence and made findings consistent with the stipulation, including that the children came under section 361, subdivision (c)(1) by clear and convincing evidence. The court declared the children dependent children and vested custody of both of them with SSA. The court approved a service plan and a visitation order.
SSA had difficulty finding a foster family “willing to accommodate all the Court-ordered visitation.” The children remained at Orangewood Children’s Home until they were placed with a foster family on November 7, 2005. By December, however, the children were placed with a second foster family because the first foster family was inflexible regarding visitation. Mother took full advantage of her twice-weekly visitation, and her visits with the children “always appeared healthy, nurturing and an overall positive experience.” In a December 2005 interim review report, the social worker stated the children “appear very bonded and attached to their mother.”
II.
Six-month Status Review Report and Hearing
In SSA’s six-month status review report filed in March 2006, the social worker stated that Mother had drug tested consistently and always had negative toxicology results; maintained employment; was working toward obtaining suitable housing; and consistently attended visits with the children, therapy sessions, parenting education classes, and substance abuse classes. Mother, however, told the social worker “she was not prepared to reunite with her children.”
At the six-month review hearing, Mother stipulated that the juvenile court should find, inter alia, by clear and convincing evidence, that continued supervision was necessary and that the return of the children to Mother would create a substantial risk of detriment to their physical or emotional well-being. The juvenile court made orders and findings pursuant to the stipulation.
III.
Twelve-month Status Review Report and Hearing; the Children Are Removed from Placement and Placed with Maternal Grandfather
In SSA’s 12-month status review report filed in August 2006, the social worker stated that further progress was needed as to Mother’s cooperation with the case plan. The social worker reported Mother was complying with various aspects of the case plan; she consistently drug tested and never tested positive for drugs. Mother, however, was evicted from the sober living home, where she had been living, due to three curfew violations, and was living with her father (the maternal grandfather) with whom she had “a history of inappropriate interactions.” The social worker reported Mother “appears to have perpetuated a lifestyle of instability in terms of personal relationships, employment, and residency. Throughout the duration of the case plan, the mother has struggled with maintaining stable employment. Typically, the mother will resign within one month.”
At the 12-month review hearing in September 2006, Mother stipulated that the return of the children to her care would create a substantial risk of detriment to the physical or emotional well-being of the children. Again, the juvenile court made findings pursuant to the stipulation, including the finding, by clear and convincing evidence, the return of the children to Mother “would create a substantial risk of detriment to the physical or emotional well being of the [children].”
In November 2006, the social worker informed the juvenile court that, on November 3, the children were placed in an emergency shelter home following substantiated allegations of physical abuse by their foster mother against another child in the household. The children were placed in a third foster home on November 21, and, on December 18, the children were placed with the maternal grandfather.
IV.
Eighteen-month Status Review Report and Related Report; 18-month Review Hearing
In the 18-month status review report filed in January 2007, the social worker recommended that reunification services be terminated and that a permanency hearing be set. The social worker reported that Mother had been living with the maternal grandfather before she “impulsively moved out of the grandfather’s residence” on September 18, 2006. She lived with her boyfriend, J.C., who had recently been released from prison, was on parole, and had a history of substance abuse. She moved back into the maternal grandfather’s residence in November 2006. After she broke the maternal grandfather’s condition that she not go out late at night, she had to move out of his residence. Mother moved back in with J.C. in January 2007 and refused to or could not provide the social worker with her address. Although Mother was employed and continued to have “very appropriate visits” with the children, Mother admitted to the social worker she “did not have a stable living environment.” Mother also told the social worker in January 2007: “‘I don’t have the patience for them, mostly L[.G.]. I think I will lose it having to deal with her. I will snap . . . I don’t ever want to have kids again. I can’t handle it.’” Mother stated she would agree to have the maternal grandfather adopt the children and she would be interested in supporting him in raising them.
In a detention report dated February 21, 2007, the social worker informed the court that the children had been removed from the maternal grandfather’s care and placed back in Orangewood Children’s Home because he “was unable to adequately protect the children.” The social worker had conducted an unannounced visit at the maternal grandfather’s house on February 18, 2007, and learned that the children were not there but with Mother. When asked where Mother lived, the maternal grandfather stated, “‘I don’t know where she lives, somewhere in South County with her boyfriend.’” Mother admitted that she had the children for several overnight visits and that she had lied to the maternal grandfather by telling him that such overnight visits had been approved. The maternal grandfather had also allowed the children to visit the prior foster mother against whom allegations of physical abuse had been substantiated.
Mother told the social worker that her current boyfriend’s name was L.M. L.M. had “an extensive criminal record,” was on parole after serving a four-year prison sentence, and was someone “who had been actively involved in gangs his whole life.” Mother told the social worker, “‘[d]on’t even bother to run a background check on him because there is no way in hell he is going to get approved.’”
In a May 2007 addendum report, the social worker stated the children had been placed in a foster home. Mother missed a drug test on May 5 because she “‘just spaced.’” She told the social worker that the children should be returned to her even if L.M. was living with her. Mother also told the social worker that she had mental health problems she did not want to tell the social worker about.
At the 18-month review hearing, Mother stipulated that the juvenile court should make a finding by clear and convincing evidence that return of the children to her would create a substantial risk of detriment to the children’s physical or emotional well-being. Mother further stipulated to the termination of reunification services.
At the 18-month review hearing, the juvenile court made orders and findings pursuant to the stipulation, and found that by clear and convincing evidence the return of the children would create a substantial risk of detriment to the children’s physical or emotional well-being and that reasonable services had been provided. The court terminated Mother’s reunification services and set a permanency hearing. Mother did not file a writ petition challenging the court’s order.
On August 2, 2007, the social worker informed the court that the children had again been placed at Orangewood Children’s Home because their most recent caregiver stated she could no longer provide care for them. On August 7, 2007, the children were placed in the foster home of T.M. and W.M.
V.
Permanency Hearing Reports and Hearing
In the permanency hearing report dated September 13, 2007, the social worker stated that, although termination of parental rights would not be detrimental to the children, additional time was required to locate an adoptive family. The social worker recommended the juvenile court continue the permanency hearing for 180 days.
It appears the children’s placement with T.M. and W.M. was too recent at this juncture for them to be considered for the children’s prospective adoptive parents.
The social worker also reported in the permanency hearing report that Mother had stated she moved out of L.M.’s residence. The social worker stated SSA had offered to pay Mother’s first month’s rent and security deposit and provide a referral for assistance with full-time child care services. On August 29, 2007, Mother told the social worker she had located an apartment but could not provide any details, such as the address, phone number, landlord’s name, the amount of rent, or the amount of the security deposit. A few days earlier, the children had told the foster mother that they had gone to L.M.’s residence during a visit and that he had thrown them in a swimming pool. Mother denied taking the children to L.M.’s residence and said they had gone to her friend Sarah’s house; Mother did not know Sarah’s last name or address.
In an addendum report, the social worker stated that, on September 1, 2007 at 7:45 a.m., he observed Mother’s car parked in front of L.M.’s residence. When asked later that day about her living situation, Mother refused to disclose where she was living. The social worker concluded Mother had been deliberately dishonest about her ongoing relationships with different men who have extensive criminal histories.
The social worker further reported to the court that the children’s foster parents, T.M. and W.M., stated they had grown very fond of A.G. and L.G., were committed to caring for them, and were “100% certain that they want to adopt the children.” The caregivers were dealing well with the children’s frequent tantrums. The social worker reported, “[t]he children appear to respond well to the caregivers and feel very comfortable in the presence of the caregivers.” The social worker further stated the foster home appeared “highly conducive to the needs of the children.”
At the permanency hearing on September 13, 2007, Mother stipulated that, pursuant to section 366.26, subdivision (c)(3), termination of parental rights would not be detrimental to the children, and the children had a probability for adoption but were difficult to place and there was no identified or available prospective adoptive parent, and adoption should be the permanent placement goal. Pursuant to the stipulation, the juvenile court found, under section 366, subdivision (c)(3) that termination of parental rights would not be detrimental to the children; that, while the children have a probability of adoption, they are difficult to place; prospective adoptive parents have not been identified; and that adoption should be the permanent placement goal. The court ordered that efforts be made to locate an appropriate adoptive family for the children within 180 days.
VI.
SSA’s Additional Reports for Continued Permanency Hearing; Mother’s Section 388 Petition
In a report dated January 10, 2008, the social worker recommended the juvenile court terminate Mother’s parental rights. The report stated the children have remained placed with prospective adoptive parents, T.M. and W.M., who “have been able to provide the children with a consistent and stable home.” The report further stated the prospective adoptive parents “love the children and would like to adopt them”; understand the children’s physical, developmental, and emotional needs; “have made several adjustments in their life to ensure that those needs are met”; and are “invested in the children’s future and display a great love for them.”
The social worker reported the prospective adoptive parents have provided a nurturing, loving, and stable home for the children since their initial placement on August 7, 2007, and have fully integrated the children into their family. The social worker stated, “[t]he children demonstrate the potential for secure attachment with the prospective adoptive parents. . . . [and] were observed to be happy and safe with the prospective adoptive parents.” The social worker further observed the children seemed “very comfortable in the prospective adoptive parents’ home and engage with them in a healthy and appropriate manner.” The social worker added, “[t]he prospective adoptive parents’ relationship with the children appears to be close, affectionate, loving, and stable.”
The social worker further stated, “[d]ue to the children’s young ages, they are unable to fully comprehend the meaning of adoption. However, it was observed that both children appear to be adjusting extremely well to their current living situation and are attaching secur[ely] to the prospective adoptive parents. Both children call the prospective adoptive parents ‘mommy’ and ‘daddy,’ and reported that they ‘love them both very much.’ The girls have an appropriate amount of toys and developmental stimulation available to meet their needs. The children appear to be loved, nurtured and well cared for.”
In January 2008, Mother filed a section 388 petition seeking the return of the children to her care, a 60-day trial visit, or the reinstatement of reunification services with increased visitation. Mother alleged that she now had her own apartment, no longer had a relationship with L.M., and could provide a stable living environment for the children. SSA moved to strike various portions of Mother’s petition on grounds they were irrelevant and/or speculative.
In an addendum report dated February 19, 2008, the social worker provided further information about the prospective adoptive parents: “The household consists of the foster parents and the children; there are no other children in the home. In addition, [the therapist] reported the foster parents have made the best attachment with the children th[a]n any previous caretaker. The foster parents provide a stable and consistent home for the children. The foster parents are willing to work with the children, implement interventions daily, and are patient. [The therapist] reported the foster parents not only follow through with her suggestions, but may be ‘two steps ahead’ as the foster parents educate themselves on how to care for the children. [The therapist] reported the foster parents are invested in doing whatever it takes to have the children thrive. With the stability and consistency the foster parents provide, the children appear to be comfortable and settled in the home. [¶] [The therapist] reported the children’s behaviors overall have improved; however recently there has been an increase in behaviors due [to] a recent visit with the maternal grandfather, and the arrival of the mother’s baby. [The therapist] reported the children historically regress behaviorally whenever there is a visit with their biological family.”
The record shows Mother gave birth to a child in January 2008.
VII.
At Continued Permanency Hearing, Juvenile Court Summarily Denies Section 388 Petition and Terminates Parental Rights; Mother Appeals
At the continued permanency hearing on May 27, 2008, the juvenile court first addressed Mother’s section 388 petition. The court denied SSA’s motion to strike the portion of the section 388 petition in which Mother requested the reinstatement of reunification services, but otherwise granted SSA’s motion to strike portions of the petition, including an exhibit of paystubs dated April and May 2007 and statements in Mother’s declaration regarding others’ beliefs. The court summarily denied the petition on the ground the petition failed to show how the proposed modifications would serve the children’s best interests.
At the permanency hearing, Mother testified she never missed a visit with the children. She testified that when she arrived for visits, the children would run up to her screaming “mommy” and give her a hug and kiss, and she would share that affection with the children. Mother stated that she would bring games, books, and arts and crafts to the visits. She brought a birthday cake for A.G. and presents at Christmas. She brought them food, engaged in school activities with them, and played games with them. Mother stated she comforted the children when they were frightened and disciplined them when they misbehaved. She testified the children would ask her, “when am I going to come home,” and that A.G. asks why she cannot see Mother and when can she see Mother again. She stated L.G. asks Mother if she can go to Mother’s house. Mother stated both the children expressed the desire to return home.
One of the assigned social workers testified that there had been no concerns at Mother’s visits with the children and that Mother interacted appropriately. The social worker testified she had observed the children with the foster parents. She stated the children seemed to be attached to the caretakers and that they have “worked really hard to try to get the girls to attach to them.” The social worker stated, “I think it’s a process that the girls are going through. They have been moved multiple times historically. . . . I think recently now the girls are feeling this is solid, this is stable. They have been in this placement for nine months and are starting to trust them.”
The social worker testified she recommended that the court terminate parental rights because “[t]he mother has been provided with 18 months of family reunification and has failed to reunify with the children. The children have gone through multiple placements, and they are finally in a home where they are doing really well. There’s been a behavioral coach, and she has tracked the two girls since January of ’06 and has mentioned to me that this is the best placement the girls have ever had. The two girls are in this home by themselves; no other siblings. So, the foster parents can focus solely on the two girls.”
The social worker further testified, “[t]he foster parents are the ones who are there redirecting, going to family therapy, working with the behavioral coach. And I think the foster parents currently have shown that they can take care of these two children, and they want to adopt and provide a permanent home for them.”
A visitation monitor also testified at the continued permanency hearing. She testified she heard Mother and the children say they loved each other. She thought Mother and the children had a close bond, and that, in her opinion, terminating parental rights would be detrimental.
Following the hearing, the juvenile court found it likely the children would be adopted and ordered Mother’s parental rights terminated. The court found that the provisions of section 366.26, subdivision (c)(1)(A) and (B)(i)-(vi) did not apply and that adoption of the children and the termination of parental rights were in the best interests of the children.
Mother appealed from the juvenile court’s order summarily denying the section 388 petition and the court’s order terminating her parental rights.
DISCUSSION
I.
The Juvenile Court Did Not Abuse Its Discretion by Summarily Denying Mother’s Section 388 Petition.
Mother contends the juvenile court abused its discretion by summarily denying her section 388 petition seeking to change the court’s May 16, 2007 order terminating reunification services and setting a permanency hearing.
To succeed on a section 388 petition, a parent must show changed circumstances establishing that the proposed modification would be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) “The parent seeking modification [through a section 388 petition] must ‘make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]’ [Citations.] There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child’s best interests will be promoted by the proposed change of order, the dependency court need not order a hearing.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
We apply the abuse of discretion standard in our review of the juvenile court’s decision to deny the section 388 petition without a hearing. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We may not reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4tn 295, 319.) We affirm the order unless it “‘“exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’” (In re Brittany K., supra, 127 Cal.App.4th at p. 1505.) The juvenile court’s decision will not be disturbed “‘“unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.”’” (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Here, the juvenile court summarily denied the section 388 petition on the ground “there has [not] been [a] sufficient showing the best interests of the children would be addressed by the requested relief.” We agree that the petition insufficiently addressed the children’s best interests, and conclude the juvenile court did not abuse its discretion by summarily denying the petition.
In determining whether a section 388 petition addresses the best interests of the child, the following factors should be considered: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, 56 Cal.App.4th 519, 532.) The strength of the relative bonds between the dependent children to both parent and caretakers becomes an even more important factor when a section 388 petition is filed after reunification services have been terminated. In In re Stephanie M., supra, 7 Cal.4th 295, 317, the California Supreme Court stated, “[a]fter the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘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 interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.”
Here, the petition did not in any way address the strength of the relative bonds of the children to Mother and to the foster parents. The children had been placed in the home of the foster parents since August 2007. The social worker reported that the foster parents were “highly motivated to care for the children” and interested in adoption, and that the children were doing well in that placement.
“At this point in the proceedings, on the eve of the selection and implementation hearing, the children’s interest in stability was the court’s foremost concern, outweighing any interest mother may have in reunification.” (In re Anthony W., supra, 87 Cal.App.4th 246, 251-252.) As in In re Anthony W., here, Mother “made no showing how it would be [in] the children’s best interest to continue reunification services, to remove them from their comfortable and secure placement to live with [M]other . . . . The children should not be made to wait indefinitely for [M]other to become an adequate parent.” (Id. at p. 252.)
In the opening brief, Mother cites In re Aljamie D. (2000) 84 Cal.App.4th 424, in which the appellate court concluded the juvenile court abused its discretion by summarily denying the mother’s section 388 petition. That case, however, is factually distinguishable given the older ages of the children involved and their expressed desire to live with their mother. The appellate court in In re Aljamie D., supra, 84 Cal.App.4th at page 432 concluded that the petition showed changed circumstances and that the best interests of the children might be served by a change in the juvenile court’s prior order, stating, “[a]ppellant’s petition showed that the best interests of the children potentially would be advanced by the proposed 60-day visit and eventual change in the placement order. The children, ages 9 and 11, repeatedly made clear that their first choice was to live with their mother. While a child’s wishes are not determinative of her best interests, the child’s testimony that she wants to live with her mother constitutes powerful demonstrative evidence that it would be in her best interest to allow her to do so.” The appellate court in In re Angel B. (2002) 97 Cal.App.4th 454, 463 observed that the petition’s reference to the children’s wishes “is clearly important and relevant to the outcome in In re Aljamie D.”
Here, in contrast, A.G. was two years old and L.G. was 14 months old when they were detained in August 2005. They have never returned to Mother’s custody since that time and, unlike the petition in In re Aljamie D., supra, 84 Cal.App.4th 424, the petition filed by Mother did not allege the children wished to leave their foster parents with whom they had been placed since August 2007.
Mother also contends the juvenile court erred by granting SSA’s motion to strike the following portions of the section 388 petition: (1) two paystubs attached as exhibit B to the petition, on the ground they predated the juvenile court’s May 2007 order terminating reunification services and thus were irrelevant; (2) the portion of paragraph 2 of Mother’s declaration stating, “[i]t was the understanding of all the parties that I would move in with my father, and, at this point my visitation would be increased and liberalized”; (3) paragraph 3 of Mother’s declaration in which she described her decision to move in with the maternal grandfather and the social worker’s concerns about the maternal grandfather and Mother’s relationships with men with violent criminal histories, on the grounds it was speculative and irrelevant; and (4) Mother’s statement in paragraph 6 of the declaration that the social worker, Mother’s therapist, and the monitor “all believe that there is a significant attachment between myself and my children,” on the ground it consisted of mere speculation on the part of Mother.
We do not need to address the issue whether the juvenile court erred by striking portions of the petition before summarily denying it because none of the stricken material was relevant to the issue presented—whether Mother set forth a prima facie case that her proposed modification of the court’s order terminating reunification services would benefit the children. None of the stricken material addressed the strength of the relative bonds between the children to both Mother and the foster parents.
The juvenile court did not abuse its discretion by summarily denying the section 388 petition.
II.
The Juvenile Court Did Not Err by Terminating Mother’s Parental Rights.
Mother argues, “[a]lthough the juvenile court subsequently summarily denied Mother’s 388 petition, it only did so on the basis that Mother did not make a prima facie showing that the requested relief was in the children’s best interests. . . . Implicit in this determination, then, is an acknowledgment by the juvenile court that Mother had in fact addressed the remaining concern, thereby eliminating any current risk of detriment. As such, the juvenile court was precluded from subsequently terminating parental rights.”
Mother’s argument fails for two reasons. First, Mother incorrectly assumes the juvenile court found the section 388 petition sufficiently alleged evidence of a change of circumstances, based on the court’s order summarily denying the petition. Because the court found the petition failed to show how the proposed modification would be in the children’s best interests, it did not need to determine whether the petition sufficiently alleged evidence of a change of circumstances, and the record does not provide any basis for assuming the court resolved that issue in favor of Mother.
Second, as the juvenile court had made requisite findings of detriment throughout the dependency process, the court was not required to make a “current” finding of detriment at the time of the May 2008 permanency hearing before terminating Mother’s parental rights.
In Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253, the California Supreme Court explained: “[S]ection 366.26 cannot properly be understood except in the context of the entire dependency process of which it is part. . . . [T]he purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement. By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness. Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard [citation]; in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. [Citations.] Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached.” (Fn. omitted.)
The Supreme Court in Cynthia D. v. Superior Court further stated, “[b]y the time termination is possible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer ‘reason to believe that positive, nurturing parent-child relationships exist’ [citation], and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished. At this point, . . . it has become clear ‘that the natural parent cannot or will not provide a normal home for the child’ [citation], and the state’s interest in finding the child a permanent alternate home is fully realized. In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness, let alone evidence that meets an elevated standard of proof.” (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256.) Thus, in order to terminate parental rights, the juvenile court “need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated.” (Id. at pp. 249-250.)
The Supreme Court further noted that the task force involved in the comprehensive revision of the juvenile court dependency statutes in January 1988 stated, “‘the critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.’ [Citation.]” (Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 247, 250.) The Supreme Court stated, “[t]he task force’s intent was ‘to eliminate duplication between the regular review hearings and the termination hearing. Therefore, the decisions made at the review hearing regarding reunification are not subject to relitigation at the terminate hearing. This hearing determines only the type of permanent home.’” (Id. at p. 250.)
Here, Mother stipulated to the juvenile court’s findings of detriment by clear and convincing evidence at the October 2005 pretrial hearing, the six-month review hearing, the 12-month review hearing, and the 18-month review hearing. Mother also stipulated to the termination of reunification services at the 18-month review hearing and to a finding that termination of parental rights would not be detrimental to the children at the September 13, 2007 permanency hearing. The record supports these findings. The juvenile court was not required to make a separate finding of “current detriment” at the continued permanency hearing in 2008. We find no error.
Mother cites In re P.C. (2008) 165 Cal.App.4th 98 in support of her argument the juvenile court erred by terminating parental rights in the absence of a sufficient showing of detriment at the time of the continued permanency hearing in 2008. In re P.C., supra, 165 Cal.App.4th 98 is wholly distinguishable from the instant case. In that case, at the time of the 18-month review hearing, the mother had completed her case plan. (Id. at p. 101.) Her children, however, were not returned to her because of her “lack of stable, suitable housing” which “was due in large part to her lack of funds.” (Id. at p. 100.) The record showed that, although the mother worked steadily, she was unable to find affordable housing in Orange County and SSA failed to provide her reasonable assistance to obtain safe, affordable housing. (Ibid.) Nevertheless, the juvenile court found by clear and convincing evidence that the return of the children to the mother would create a substantial risk of detriment to the physical and emotional well-being of the children. (Id. at p. 102.) The court terminated reunification services and set the matter for a permanency hearing. (Ibid.)
On appeal, a panel of this court reversed the subsequent termination of parental rights, holding that poverty alone, even when it results in homelessness or less than ideal housing arrangements, is not a sufficient ground to deprive a mother of parental rights to her children. (In re P.C., supra, 165 Cal.App.4th at pp. 99-100.) In that case, we rejected SSA’s argument that “‘[n]o further detriment finding was necessary’ to terminate mother’s parental rights because when the court entered its order following the joint jurisdiction/disposition hearing, it found vesting custody of the children with mother would be detrimental,” stating “[i]f that were true, however, then no parent would ever have the incentive to try to reunify with his or her child.” (Id. at p. 106.) Thus, the juvenile court was required at the 18-month review hearing in that case to make a finding of detriment before terminating reunification services; it did make a finding of detriment; and this court concluded that finding was unsupported by the record. (Id. at pp. 102, 106.) This court did not hold in In re P.C. that the juvenile court is required to make a “current” finding of detriment at the permanency hearing itself. (See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2008) § 2.171[5][b], p. 2-383 [citing Cynthia D. v. Superior Court, supra, 5 Cal.4th 242, states, “[i]n most instances one or more findings of detriment will already have been made regarding each parent before the case ever gets to a Welf. & Inst. Code § 366.26 hearing, and that prior finding forms part of the basis for the termination of parental rights”].)
We find no error.
III.
The Juvenile Court Did Not Err by Finding the “Beneficial Relationship” Exception Under Section 366.26, Subdivision (c)(1)(B)(i) Inapplicable.
Mother contends the juvenile court erred by failing to find the parent-child relationship exception to the termination of parental rights applicable. Section 366.26, subdivision (c)(1)(B)(i) allows the juvenile court to decline to terminate parental rights over an adoptable child if it 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.” Mother had the burden of proving both prongs of the parent-child relationship exception were satisfied. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 949.) We consider whether substantial evidence supports the juvenile court’s determination the parent-child relationship exception did not apply. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
Effective January 1, 2008, section 366.26 was amended. (Stats. 2007, ch. 583, § 28.5.) The amendment redesignated section 366.26, former subdivision (c)(1)(A) as (c)(1)(B)(i) but did not substantively modify that subdivision.
In In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, the appellate court acknowledged that courts have “routinely applied the substantial evidence test” to the juvenile court’s finding under section 366.26, subdivision (c)(1)(B)(i). The appellate court in In re Jasmine D. stated that the abuse of discretion standard is a more appropriate standard even though “[t]he practical differences between the two standards of review are not significant.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either standard, however, Mother’s argument fails for the same reasons.
The record shows Mother has had “regular visitation and contact” with the children under section 366.26, subdivision (c)(1)(B)(i). However, she did not satisfy the second prong of the exception, by showing the children would benefit from continuing their relationship with Mother, within the meaning of section 366.26, subdivision (c)(1)(B)(i).
In In re Autumn H., supra, 27 Cal.App.4th 567, 575-576, the court stated: “In the context of the dependency scheme prescribed by the Legislature, we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean the relationship 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 parent’s rights are not terminated. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. [¶] At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent. Social workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court. The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.”
Substantial evidence supports the juvenile court’s finding the parent-child relationship exception did not apply. Angelina was two years old and Lydia was 14 months old when they were detained. They have been in the dependency system since August 2005 and have spent the vast majority of their lives in the care and custody of multiple foster parents. They have never returned to Mother’s custody.
The record shows Mother consistently visited the children and, in doing so, helped take care of them. SSA’s reports showed Mother was loving and appropriate during visits.
However, the record also shows the children have attached to the prospective adoptive parents with whom they have lived since August 2007. The prospective adoptive parents have worked to address the children’s behavioral problems through family therapy and the assistance of a behavioral coach. They have demonstrated their commitment to providing the children a stable, nurturing, and permanent home. The children appear comfortable and settled in the home.
In short, the record shows the prospective adoptive parents have occupied a parental role in the children’s lives since August 2007 and the termination of Mother’s parental rights would not deprive the children of a “substantial, positive emotional attachment such that [they] would be greatly harmed.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Substantial evidence supports the juvenile court’s finding the parent-child relationship exception was inapplicable.
DISPOSITION
The orders are affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.