In
re Cesar O.
Filed 7/18/12
In re Cesar O. CA2/4
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re CESAR O., a Person Coming
Under the Juvenile Court Law.
B235660
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DIANA G. et al.,
Defendants and Appellants.
(Los Angeles
County
Super. Ct.
No. CK73620)
APPEAL from
orders of the
Superior Court, Stephen Marpet, Commissioner.
Affirmed.
Karen B.
Stalter, under appointment by the Court of Appeal, for Defendant and Appellant
Diana G.
Catherine
C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant
Cesar O.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County
Counsel, Emery El Habiby, Deputy County Counsel for Plaintiff and Respondent.
Parents
Diana G. and Cesar O. appeal from orders of the juvenile court denying their
petitions under Welfare and Institutions Code section 388 for modification of
orders
366.26. They contend that it was in the
best interests of their son (also named Cesar O.
to modify orders of the juvenile court denying reunification services and
placing the child in the home of his paternal grandparents. They also contend the juvenile court erred in
finding that the beneficial parent/child exception to the preference for
adoption did not apply in selecting a permanent plan under section 366.26. We find no error and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Mother and
father (collectively parents) have a history of
abuse, arrests, and incarceration. They
have three older children, J.O., D.O., and A.O., who were dependents of the
juvenile court in a proceeding which was open when the child in this matter,
Cesar, was born in January 2010. The
older children was opened in 2008 when mother had positive drug tests on giving
birth to A.O. After parents failed to
participate in a voluntary family maintenance plan, a petition regarding the
three children was filed and sustained in 2008.
It alleged that both parents had a history of substance abuse and
domestic violence, and criminal histories that endangered the children. In addition, it was alleged that parents
failed to provide for the children. The
older children were placed with paternal grandmother. Parents were arrested on August 12, 2009 and
imprisoned.
Based on
this history, the Department of Children
and Family Services (the Department) concluded that Cesar was at risk and
placed the child in protective custody.
The child was detained in the home of paternal grandparents. In February 2010, a petition was filed under
section 300 alleging that Cesar should be found a dependent child because of
parents’ history with the three older children, including
activity, and failure to protect.
In March
2010, the parental rights of parents as to the three older children were
terminated. Adoption was recommended as
the permanent plan. The Department
recommended that no reunification services be offered parents as to Cesar O.
because of their failure to reunify with the three older children. Parents were released from state prison in
April 2010 and enrolled in inpatient drug rehabilitation programs. On June 17, 2010, Cesar was declared a
dependent under section 300, subdivisions (a) and (b), and reunification
services were denied (§ 361.5, subd. (b)).
A section 366.26 hearing was set to select and implement a permanent
plan for him.
Father
filed a request on November 15, 2010 under section 388 to change the court’s
order denying reunification services. He cited his completion of an inpatient drug
treatment program (on October 29, 2010) and parenting and anger management
classes, as changed circumstances. He
also was continuing to participate in a 52-week domestic violence course. Father was complying with random drug testing
and attached proof of his 17 clean tests.
He was visiting Cesar regularly.
Father asked the court to grant either family maintenance or family
reunification services, return the child to his care, or allow unmonitored
visits. The court set the matter for
hearing.
The
Department’s response to father’s request stated that there was no provision
for children to stay at the residential program in which father was
enrolled. It acknowledged father’s
completion of the programs outlined in the section 388 request. Father, with mother, had been visiting Cesar
and his siblings in the caregivers’ home for about two hours each weekend. In addition, father visited on
Thanksgiving. Father told the social
worker that he understood that Cesar could not be returned to him at this time,
and that he planned to stay in his residential
program. He was attending Narcotics
Anonymous meetings two times a week and was taking aviation mechanics classes
at the community college. Paternal
grandmother, the caregiver, said father visited regularly. In her opinion, she did not believe father
was ready for the child to be returned home.
While father was doing well in his program, paternal grandmother was
uncertain about how well he would do on his own. In light of the family history, the
Department continued to recommend that father not be offered family
reunification or maintenance services.
It recommended that he have unmonitored visits within the caregiver’s
home and monitored visits outside of that setting.
On February
8, 2011, mother filed a section 388 request to change the order denying
reunification services and setting a section 366.26 hearing. She requested reunification services and
liberalized visitation. Mother alleged
that she had been actively participating in substance abuse treatment, random
drug testing, 12-step meetings, parenting classes, individual therapy, anger
management classes, domestic violence classes, educational and vocational
training. Mother said she had been
visiting Cesar and had been working to address the issues that led to removal
of her children. She alleged she was in
a position to provide a stable and drug-free loving home and that Cesar would
benefit from a relationship with her.
The juvenile court set hearing on both parents’ section 388 requests for
the same date as the section 366.26 hearing.
The
Department advised the court that the paternal grandparents’ home study had
been approved and recommended that parents’ rights as to Cesar be terminated
and that he be placed for adoption. In a
June 2011 interim report, the Department reported that parents were living
together in a rented room. Other
residents included the owner, the owner’s adult son, and another tenant. Father was currently unemployed but
anticipated getting a job at his community college. Parents had completed inpatient drug programs
and parenting training. Each was
enrolled in domestic violence counseling (mother had completed 23 of 52 weeks,
father had completed 37 of 52 weeks).
Mother and father had multiple negative random drug tests and no
positive tests. Parents were visiting
regularly at the caregivers’ home for three to four hours on the weekends.
Paternal
grandmother was asked her position regarding the section 388 petitions. She said:
“‘I don’t know. It is very
difficult for me to make this decision.
I wouldn’t like the child [Cesar] to be separated from his
siblings. I feel the Department should
evaluate their progress out of the program since they were recently released
from their program. I have seen my son
to appear very motivated to get his son back.’â€
The Department recommended no reunification services be offered to
parents, that their rights be terminated, and that adoption be the permanent
goal for Cesar.
At the
outset of the combined section 388 and 366.26 hearing the parties agreed that
parents had demonstrated the change of circumstances required by section
388. Father testified that he and mother
had been visiting Cesar three days a week, for four to five hours. During these visits, father said he feeds the
child, changes his diapers, and takes him to the park. They had gone to the fair and
Disneyland. The child interacts with his
siblings, but spends more time with his parents. Father said he did not think it would change
anything or harm Cesar to leave his siblings and return to father’s
custody. Father said he thought Cesar
would need him even more because paternal grandfather is aging. He said his position as a father figure to
Cesar would not change if the child was adopted by paternal grandparents.
Mother
testified that she usually visited Cesar together with father, except during
the child’s physical therapy appointments if father was unable to attend. She described the physical therapy sessions
and helping the child with his exercises.
During her visits at the caregivers’ home she plays ball with the child,
goes to the park, changes his diapers, bathes, and feeds him. He calls her “mom†and father “dad.†He runs to them when he sees parents. He cries when they are leaving. Mother testified that paternal grandmother is
too overwhelmed with the three older children, each of whom has behavioral
problems. Cesar has a good bond with his
siblings, who participate in the visits, holidays, and birthdays. Mother wanted the child returned to her. She said she did not visit every day because
she was not allowed to by the social worker.
If paternal grandparents adopted Cesar, mother planned to continue
visits, to go with him to medical appointments, and to be a guiding force in
his life.
In
argument, counsel for the child acknowledged that parents had changed their
lives. But she argued that neither
parent had shown that it would be in the child’s best interest to provide
family reunification services. He has
been placed with loving grandparents his entire life, with his older
siblings. Although parents visited
regularly, they had not played a parental role with the child on a consistent
basis. The Department also urged denial
of the section 388 petitions on the ground that parents had not demonstrated
that reunification would be in the child’s best interest now that they were
again living together outside of a structured program.
The
juvenile court acknowledged the progress parents had made in their programs. But it concluded that they had not
demonstrated that it would be in the child’s best interests to grant the
section 388 petition since the child was in a stable placement, which was all
he had known since birth. The court also
declined to find that the parental relationship exception to adoption applied
under section 366.26, subdivision (c)(1)(B)(i).
It found no evidence that parents had played a parental role during
their monitored visits with the child.
The parental rights of father and mother were terminated and the matter
was ordered into adoption planning.
Father and mother filed timely appeals from denial of their section 388
petitions and from the order terminating parental rights.
DISCUSSION
I
Parents
argue the juvenile court erred when it concluded that granting their section
388 petitions was not in Cesar’s best interests.
“
parent or other person with an interest in a dependent child to petition the
juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) ‘Section 388 provides the “escape mechanism†that
. . . must be built into the process to allow the court to
consider new information.’
[Citations.] The petitioner has
the burden of showing by a preponderance
of the evidence (1) that there is new evidence or a change of circumstances
and (2) that the proposed modification would be in the best interests of the
child. [Citations.] That is, ‘[i]t is not enough for [the
petitioner] to show just a genuine change of circumstances under the
statute. The [petitioner] must show that
the undoing of the prior order would be in the best interests of the
child. [Citation.]’ (In re Kimberly F. (1997) 56
Cal.App.4th 519, 529.) Furthermore, the
petitioner must show changed, not changing, circumstances. [Citation.]
The change of circumstances or new evidence ‘must be of such significant
nature that it requires a setting aside or modification of the challenged prior
order.’ [Citation.]†(In re Mickel O. (2011) 197
Cal.App.4th 586, 615, italics omitted.)
“In evaluating whether the
petitioner has met his or her burden to show changed circumstances, the trial
court should consider: (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. (Kimberly F., supra,
56 Cal.App.4th at p. 532.) The petition
is addressed to the sound discretion of the juvenile court, and its decision
will not be overturned on appeal in the absence of a clear abuse of discretion. [Citations.]â€
(In re A.A. (2012) 203 Cal.App.4th 597, 612.)
It is significant that no
reunification services were offered parents and that the case was set directly
for permanent planning under section 366.26.
Where no services are offered, or services have been terminated, “the juvenile court’s focus shifts from
family reunification to the
child’s permanent placement and well-being, and the burden accordingly shifts
to the parent to show that a termination
of parental rights is not in the child’s best interests. (In re Marilyn H. (1993) 5 Cal.4th
295, 306–307, 309; In re Zachary G. (1999) 77 Cal.App.4th 799,
808.) A parent may regain custody after
been terminated only by
showing that changed circumstances demonstrate a return to parental custody is
in the child’s best
H., at p. 309; In re Kimberly F., supra, 56 Cal.App.4th 519, 528–529.)†(In re
Nolan W. (2009) 45 Cal.4th 1217, 1235.)
Whether an order should be modified is left to the sound discretion of
the juvenile court and we may not
disturb its order absent a clear abuse of discretion. (In re
Aaliyah R. (2006) 136 Cal.App.4th 437, 447.)
While parents made excellent
progress in their programs, they failed to demonstrate that an order granting
their section 388 petitions would have been in Cesar’s best interests. He was in the stable, approved, adoptive home
of his paternal grandparents with his three siblings. This was the only home he had known, because
for most of his young life his parents were incarcerated or residing in
rehabilitation programs. They were
unemployed and were living in a rented room.
Even paternal grandmother questioned whether parents would be able to
maintain a positive lifestyle free of substance abuse and domestic violence
outside the structure of an in-patient rehabilitation program. We find no abuse of discretion in the
juvenile court’s denial of the section 388 petitions.
II
Father and mother argue the trial
court erred in concluding that they had not demonstrated the applicability of
the parent/child relationship exception to adoption as the permanent plan for
Cesar. They contend that the evidence
established that they played a parental role in his life and that their
parental rights should not have been terminated.
Under section 366.26, the statutory
preference is to terminate parental rights and order the child placed for
adoption. (§ 366.26, subd. (b)(1);
190 Cal.App.4th 102, 123 (C.B.).) Parental rights cannot be terminated under
section 366.26, subdivision (c)(1)(B)(i), “where the
juvenile court ‘finds a compelling reason for
child’ because ‘[t]he parents have maintained regular visitation and contact
with the child and the child would benefit from continuing the
relationship.’ The exception does not
require proof the child has a ‘primary attachment’ to a parent or the parent
has ‘maintained day-to-day contact’ with the child. (See In re S.B. [(2008)] 164
Cal.App.4th [289,] 299.) [¶]
requiring that ‘the child would benefit from continuing the [parent-child]
relationship’ means that ‘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 re Autumn H. [(1994)] 27 Cal.App.4th [567,] 575.) The juvenile court ‘balances the strength and
quality of the natural parent/child relationship in a tenuous placement against
of belonging a new family would confer.’
(Ibid.) ‘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.’ (Ibid.)†(C.B., supra, 190 Cal.App.4th at pp. 123-124.)
Parents had the burden of showing that the
termination of their parental rights would be detrimental to Cesar under one of
the statutory exceptions to adoption. (
The abuse of
discretion standard governs review of an order terminating parental rights
where no exception to adoption is found, but the substantial evidence test
applies to pure findings of fact. (C.B.,
discretion standard, ‘the trial court’s findings of fact are reviewed for
substantial evidence, its conclusions of law are reviewed de novo, and its
application of the law to the facts is reversible only if arbitrary and
capricious.’ [Citations.]â€
The juvenile court must take “‘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.’ [Citation.]â€
(C.B., supra, 190 Cal.App.4th at p. 124.)
Mother
acknowledges that 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.’
(In re Brandon C. [(1999)] 71
Cal.App.4th [1530,] 1534 (citing In re
Autumn H., supra, 27 Cal.App.4th
567, 575.)†Cesar was only 19 months old
when the section 366.26 hearing was held, so he was unable to express whether
he had an emotional attachment to mother or father. There was testimony that he happily greeted
his parents at visits and cried when they left.
Parents had maintained regular monitored visits with the child since
their release from incarceration in April 2010, but the child had never lived
with them. Mother testified that she had
bathed, fed, and diapered the child and had gone to medical and physical
therapy appointments with him. Father
also testified that he diapered and fed the child during visits in addition to
playing with him.
The
juvenile court observed in denying the section 388 petitions that Cesar had
been raised by his grandmother. It
said: “[R]aising a child is not just
visiting six or eight hours a day even.
It’s getting up in the middle of the night. It’s taking care of them during the week when
the parents aren’t there. All of the
things a parent does. [¶] And this child
has been raised by his grandmother with his sisters all his life, that’s all
he’s ever known.†The same reasoning
applied in its conclusion under section 366.26.
The court noted that parents had never moved beyond monitored visitation
and found that they never had taken a true parental role in Cesar’s life.
The
record supports the juvenile court’s findings.
While parents visited the child regularly once they were released from
prison, they had not yet established a parental role in his life sufficient to
overcome the preference for adoption. We
find no error in the order finding that no exception under section 366.26
applied and terminating parental rights.
DISPOSITION
The orders
of the juvenile court denying the petitions for modification by mother and
father are affirmed. We also affirm the
order terminating parental rights for both parents as to Cesar.
NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS
EPSTEIN,
P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
Statutory references are to the
Welfare and Institutions Code.
We refer to the minor
as “the child†or “Cesar†to avoid confusion with his father, to whom we refer
as “father.â€
