In re C.G.
Filed 4/22/13 In re C.G. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
>
In re C.G. et al., Persons Coming Under the Juvenile Court Law. | |
KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. A.N., Defendant and Appellant. | F065594 (Super. Ct. Nos. JD126658 & JD126659) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
Jon E. Stuebbe, Judge.
Marsha F.
Levine, under appointment by the Court of Appeal, for Defendant Appellant.
Theresa A.
Goldner, County Counsel,
Kelley D. Scott, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
A.N. (mother) appeals from the juvenile court’s orders
denying her petition to modify the court’s previous orders (Welf. & Inst.
Code, § 388) and terminating her parental rights (Welf. & Inst. Code,
§ 366.26).
title="">[1] Mother contends: (1) the juvenile court abused its
discretion by denying mother’s request to reinstate her reunification services
for six months, and (2) the court further erred by failing to apply the
“beneficial relationship†exception to termination of
subd. (c)(1)(B)(i)).
We disagree
and affirm the court’s order.
FACTUAL AND
PROCEDURAL HISTORIES
When this
case began, mother and E.G. III, the presumed father (father), were living
together with their two daughters, C.G., born in 2009, and A.G., born in
2011. Mother also has an older daughter,
N.L., who was living in the home, but she is not a party in this case. (Mother has two other children; they live
with their fathers.)
C.G. and
A.G. were placed in protective custody
on June 30, 2011. The Kern County Department of Human Services
(Department) filed juvenile dependency petitions on the girls’ behalf on July 5, 2011. The petitions alleged that mother was
arrested on June 29, 2011,
for battery on a spouse (father), and C.G. and A.G. were present at the time of
the incident. Mother had a history of
agreed to protect her children from domestic violence between herself and
father. The home was reported to be
filthy and unsafe, and mother was advised to have the home cleaned up. On June 29,
2011, the home was found to be “deplorable, unsanitary and
unlivable†for the girls. The next day,
the home remained too dirty for the girls to reside in the home. Similar allegations were made against father. In addition, it was alleged that, in March
2011, father tested positive for methamphetamine at a level indicated to be
strong, and he had a history of drug abuse dating back to 2003.
At the
detention hearing on July 7, 2011,
the juvenile court found a prima facie showing that C.G. and A.G. were persons
described in section 300 and ordered them removed from the home of
parents.
On July 20, 2011, the Department
filed amended petitions, adding details to the original allegations. The Department alleged that, during the
domestic violence incident of June 29,
2001, mother struck father 15 to 20 times with an open hand and
closed fist. On June 16, 29, and
30, 2011, health and safety hazards were found in the home. The girls had access to an unconstructed
bedroom and bathroom with nails and unsecured air duct holes in the floor. There was little food in the home, trash and
clothes throughout the home, and trash and dirty diapers in the yard. The Department further alleged that the girls
were at substantial risk because of mother’s mental illness. Mother had been prescribed
disorder, but she did not take her medication on a regular basis.
The
Department prepared a social study for the jurisdictional hearing. It reported that mother had a history with
Child Protective Services in Los Angeles
County. In 2004, a referral of general neglect was
received for N.L. Mother’s sister
reported that mother had given her temporary custody of N.L. because mother was
on drugs. Mother entered a drug
rehabilitation center but left before completing the program. According to mother, she had been off drugs
for almost a year, and she was discharged from a treatment program because she
completed drug counseling and parenting
classes. The referral was determined
to be unfounded.
In the
current case, mother and father submitted to the amended petitions on the basis
of the social workers’ reports. On August 5,
2011, the juvenile court found the allegations of the amended
petitions true. At the hearing on
disposition held September 12,
2011, the court adjudged the girls dependent children of the court
and placed them in the custody of the Department for suitable home
placement. The court found that mother
and father made minimal progress toward alleviating the causes for the girls’
removal. The court ordered family
reunification services to be provided for the parents for a period of time not
to exceed six months. Mother was ordered
to participate in counseling for domestic violence as a perpetrator, parenting,
and neglect. She was ordered to comply
with mental health counseling and medication and to submit to random drug
testing. She was to have supervised
visitation with the girls twice weekly.
In a social
study for the six-month status review hearing, the Department reported that
mother refused or failed to test nine times from September 2011 to February
2012. In addition, mother tested
positive for amphetamine and methamphetamine in September 2011 and January
2012, the only two times she submitted drug tests. Mother moved to Los
Angeles in November 2011 and had not provided the
Department any documentation that she was attending counseling for domestic
violence, substance abuse, or parenting in Los Angeles. She failed to attend a scheduled appointment
with a psychiatrist on February 1, 2012.
For these reasons, the Department recommended termination of family
reunification services.
At the
status review hearing on April 5, 2012, the juvenile court found that
mother and father failed to participate regularly and make substantive progress
in their court-ordered treatment plans.
Since the children were under three years old and there was not a
substantial probability they would be returned to the home within six months,
the court ordered the termination of reunification services. The court specifically found that mother had
made minimal progress toward alleviating the causes of the children’s removal
and she made minimally acceptable efforts to facilitate the return of the
children to her care. A
section 366.26 hearing was set for August 2012, and notice was given that
the Department recommended terminating parental rights and implementing a plan
of adoption.
On
July 3, 2012, mother filed a petition under section 388 requesting
that the girls be placed with her in a sober living home or, alternatively,
that family reunification services be reinstated. Mother asserted that she had been in a sober living
home, Shields for Families, since March 2012 and was actively pursuing all
components of her former family reunification plan. She submitted documents showing that she
enrolled in Shields for Families on March 13, 2012, she was making good
progress in individual therapy, and she regularly attended visits with her
daughters. Shields for Families was
described as a community-based, multidisciplinary program for high-risk
families, providing substance abuse counseling, case management, parenting
classes, child development services, mental health, family reunification, and
other services. Mother also completed a
parent education class and had all negative results for two months of random
drug testing.
The
Department prepared a social study for the section 366.26 hearing, which
was submitted to the court on July 20, 2012. It described some of the supervised visits
between mother and the girls. In July
and September 2011, mother and father had supervised visits together. On January 6, 2012, mother and the
maternal grandmother visited the girls.
It was reported, “At all times, both women were patient with the
children and attended to their needs .…â€
On January 27, 2012, mother had a two-hour visit with the girls. She requested a visit in the morning so that
she could make it to the Greyhound station to go back to Los Angeles. In February 2012, mother asked to change
visits to every other week for four hours to accommodate her long travel from
Los Angeles County to Kern County, and the change was approved. In a visit on June 1, 2012, mother brought
her older daughter to visit with C.G. and A.G.
The supervising social worker observed that mother did not seem very
engaged during the visit, and the older daughter seemed to have a better bond
with C.G. When mother would ask C.G. to
do something, C.G. would either do the opposite, say no, or ignore mother
completely, but when her older half-sister asked C.G. to do something, she
seemed to respond better. Mother
appeared to pay more attention to A.G. while the older daughter seemed to do
well with both C.G. and A.G. In a visit
on June 22, 2012, mother appeared nonexpressive and the girls appeared
restless. Mother was appropriate with
the children and engaged them in conversation, but she did not smile much. Mother seemed tired, although she did show
affection. In a visit on June 29,
2012, the supervising social worker observed that the visit started off well,
but by the end of the visit, everyone was a bit tired. Regarding the mother-child relationship, the
Department concluded that, while “the mother appropriately interacts with the
girls,†“is attentive to their needs,†and “[t]he children appear to
reciprocate their mother’s attention and have an enjoyable time,†“[t]here is
no indication of a significant bond or attachment between the mother and the
children.â€
The
Department recommended terminating parental rights and referring the girls to
the county adoption agency. The girls’
current caretakers expressed a desire to adopt them. The girls had been living with their
prospective adoptive parents for over a year, and the girls called them “mamaâ€
and “papa.†The Department reported that
it appeared “the prospective adoptive parents and the children have bonded
together in a primary relationship that should continue.â€
On
August 2, 2012, the Department submitted a supplemental social study to
the court addressing mother’s section 388 petition. The supplemental study reported that mother
had initiated enrollment in her counseling components in October 2011, but she
failed to show consistent attendance in her programs or completion of any
counseling components until her most recent enrollment in Shields for
Families. It was noted that mother often
failed to submit to drug testing, and each failed test was recorded as a
presumptive positive. When mother did
submit to testing, she had three negative results in February and March 2012,
and one positive result in March 2012.
The Department wrote: “Between
September 2011 and April 2012, the mother was ordered to … complete
substance abuse counseling. She failed
to do so. Further the mother neglected
to drug test on a regular and consistent basis.
The mother attempted to enroll in several classes to address her court
ordered case plan; however, she was not consistent with her participation or
diligent with getting enrolled [in] the appropriate programs.†Mother has been in the Shields program for
only four and a half months, and “has not shown stability at this time.â€
The
Department opined: “[I]t is not in the
children’s best interest to be removed from their current pre-adoptive
placement and placed with the mother.
Nor, is it in the best interest of [C.G.] and [A.G.] for the mother to
receive Family Reunification Services at this time, as any other plan may only
delay the children’s permanence. Since
the children’s dependency[,] the mother had several chances to pursue the
issues that led to the children’s dependency; however, she did not until
recently, eight months later.… [T]he
mother’s circumstances [have] not changed, but [are] merely changing and the
children’s best interest would be best served by keeping them in their current
placement and pursuing a permanent plan of adoption.â€
A second
supplemental social study submitted on August 17, 2012, included
information that mother had all negative drug tests from April to early July
2012. Mother also completed a 12-week
parenting class and a course in job development from a vocational services
center. The Department continued to
recommend that mother’s section 388 petition be denied.
On
August 21, 2012, the juvenile court held a combined hearing on mother’s
section 388 petition and the section 366.26 permanency plan
hearing. Mother testified in support of
her petition. She testified that she was
attending domestic violence counseling and anger management, parenting class,
and substance abuse counseling. She
explained that her residential program generally lasts from 12 to 24 months,
depending on the person. Mother had been
living there for almost six and a half months and planned to stay for 18 to 24
months. (On cross-examination, she
acknowledged she had only been at the program for five and a half months. She also attended weekly individual therapy
and was stable on her medications.
Mother
recognized that A.G. was only two months old when she was taken away and C.G.
was two and a half years old. She
testified, “I understand I got a late start, and this time around, I am serious
about getting my kids and having my kids and living a full life with my
kids.†Mother believed it would hurt her
children if they were not able to see her anymore. She told the court that C.G. knows her as
“mom,†and “for [mother] to be cut out of her life just like that, it would be
detrimental to her.†Mother testified
that A.G. “knows [her] as mom, too.†She
continued, “[A.G.] probably doesn’t understand as much as [C.G.] does, but this
is the chance that I want to show the Courts and the Department that I’m
willing and I’ve been making the effort to come see my kids and doing—staying
in my program and doing what I need to do to get them back.â€
Mother’s
attorney acknowledged that mother only “got serious about what she needed to
do†in the last month of her original six-month reunification period, but since
then, she has “maintained that seriousness and commitment to doing what’s
necessary.†He argued, “[W]hile it was a
late start, the kids, especially [C.G], certainly have a significant
relationship with mom, spending the first two and a half years of her life with
the mother.… [¶] [A.G.], obviously less so, but you heard from
the mother’s testimony and you can see from the description of the visitation,
that even though [A.G.] has only been seeing mom on a visitation-type basis for
most of her life, she still seems to have a close relationship.†Mother’s attorney asked the court to find it
in the children’s best interest to give mother six additional months of family
reunification services. Father’s
attorney was in favor of mother’s section 388 petition and also argued
that father had such a close relationship with the girls that this may be an
appropriate case for guardianship. The
attorney for the children had no objection to mother’s request for six months
of reunification services.
After
hearing the attorneys’ arguments, the juvenile court denied mother’s
petition. The court explained:
“This is one of those cases where … it does appear
that there’s some evidence that the mother has finally pulled it together, is
headed in the right direction. The
question is whether or not at this stage of the proceeding and after this long
out of her care, the children’s need of stability and permanency in their life
outweighs any evidence that I have before me, that, in fact, she has started
heading in the right direction.
“So
it’s a difficult balancing kind of a decision to make. They are very young children, especially
[A.G.]. The decision, of course, is
easier. As to [C.G.], it’s a little more
difficult because she’s older and has more contact with the mother, but she
also … was very young at the time she was taken from the home.
“I
think at this point the children’s need for stability is—outweighs the need of
the parent. I don’t think that the
relationship between them is so strong as to outweigh the children’s need for
that, so I will deny the 388 petition.â€
The court
proceeded to the section 366.26 hearing.
It rejected father’s request for guardianship and accepted the
Department’s recommendations. Finding
clear and convincing evidence that the children were likely to be adopted, the
court terminated the parental rights of mother and father and referred C.G. and
A.G. to the county adoption agency for adoptive placement.
Mother
filed a notice of appeal the next
day.
DISCUSSION
I. Section 388
petition
Any parent
or other interested party may petition the juvenile court to modify or set
aside a prior dependency order pursuant to section 388 on grounds of
changed circumstance or new evidence.
(§ 388, subd. (a)(1).)
The party bringing a section 388 petition has the burden to prove
that the proposed change is in the best interests of the child. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie
M.).)
After the
termination of family reunification services, a parent’s interest in the care,
custody, and companionship of her children is 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.†(
A court deciding a section 388 petition “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.†(Ibid.) Further, “[a] petition which alleges merely
changing circumstances and would mean delaying the selection of a permanent
home for a child to see if a parent, who has repeatedly failed to reunify with
the child, might be able to reunify at some future point, does not promote
stability for the child or the child’s best interests.†(In re
Casey D. (1999) 70 Cal.App.4th 38, 47.)
We review a
juvenile court’s decision on a section 388 petition for an abuse of discretion. (Stephanie
M., supra, 7 Cal.4th at
p. 318.) “‘The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of
deduced from the facts, the reviewing court has no authority to substitute its
decision for that of the trial court.’â€
(Id. at
pp. 318-319.)
Mother
contends the denial of her section 388 petition was an abuse of
discretion. She asserts the court failed
to make the appropriate determination, that is, whether it was in the
children’s best interests to grant mother’s request to place the children with
her or provide her with an additional six months of reunification
services. Instead, she argues, it
appears the court prematurely applied the test for determining whether the
beneficial-relationship exception to termination of parental rights was
applicable. We are not persuaded.
In denying
mother’s petition, the court explained, “The question is whether or not at this
stage of the proceeding and after this long out of her care, the children’s
need of stability and permanency in their life outweighs any evidence that I
have before me, that, in fact, [mother] has started heading in the right
direction.†Mother’s position appears to
be that it was incorrect for the court to refer to “stability and permanencyâ€
rather than “best interest†in deciding the section 388 petition. Stability and permanency, however, are
primary considerations in determining a child’s best interest. (Stephanie
M., supra, 7 Cal.4th at
p. 317; In re Marilyn H. (1993)
5 Cal.4th 295, 310 [after termination of reunification services, it is presumed
that continued care is in best interest of child].) Consequently, it was appropriate for the
court to consider the girls’ stability and permanency in deciding mother’s
section 388 petition.
Mother also
relies on In re Kimberly F. (1997) 56
Cal.App.4th 519 (Kimberly F.), in
which the court identified three principle factors relevant to the juvenile
court’s evaluation of best interests in the context of a section 388
petition: “(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.†(Id.
at p. 532.)
The facts
of this case are easily distinguishable from the facts of Kimberly F. First, in
the reason for the dependency—a dirty home—“was not as serious as other, more
typical reasons for dependency jurisdiction, such as … illegal drug
use .…†(Kimberly F., supra, 56
Cal.App.4th at p. 522.) Here, in
contrast, the reasons for dependency included father’s drug use and mother’s
domestic violence, and mother does not dispute that she has a substance abuse
problem. Second, in Kimberly F., the petitioning mother demonstrated an undisputedly
strong bond with her children and also had a substantial amount of unmonitored
visitation. (Id. at p. 532.) In this
case, the Department reported “no indication of a significant bond or
attachment between the mother and the children,†while “the prospective
adoptive parents and the children have bonded together in a primary
relationship .…†Further, mother
did not have substantial or unmonitored visitation, seeing her girls in
supervised visitation only every other week.
Third, in Kimberly F., the
unsanitary conditions that led to removal had been eliminated, and the
appellate court rejected the juvenile court’s other rationale for denying the
mother’s section 388 motion—the mother’s alleged “narcissisticâ€
personality. (Id. at p. 533 [observing this was description of human
personality, not mental illness].) Here,
mother does not claim that the problems that led to dependency have been
eliminated; she argues only that she is headed in the right direction.
Mother was
given notice that failure to cooperate or avail herself of services could result
in the termination of services after only six months. Yet, she failed to complete her case plan
components within six months, failed to submit to drug tests, and tested
positive for drugs in September 2011, January 2012, and March 2012. There was evidence that C.G. and A.G. were
bonded with their caregivers, whom they called “mama†and “papa,†as well as
evidence that mother and the girls did not share a significant bond. At the time the court heard her section 388
petition, mother was addressing her problems but may not have been ready to
assume custody of her daughters. Under
these circumstances, we cannot say the juvenile court abused its discretion in
denying her section 388 petition.
(See In re Casey D.,
48-49 [no abuse of discretion in denying petition where mother was in drug
treatment and had been drug free for about five months; mother’s circumstances
“were changing, rather than changedâ€].)
II. “Beneficial
relationship†exception to termination of parental rights
Mother also
contends that the juvenile court erred in failing to apply the “beneficial
relationship†exception to termination of parental rights. (See § 366.26, subd. (c)(1)(B)(i).) We disagree.
The purpose
of a section 366.26 hearing is to select and implement a permanent plan
for the dependent child. (
532.) The Legislature’s preferred
permanent plan is adoption. (
290.) “At a section 366.26 hearing,
the court must terminate parental rights and free the child for adoption if [1]
it determines by clear and convincing
evidence the child is adoptable within a reasonable time, and [2] the
parents have not shown that termination of parental rights would be detrimental
to the child under any of the statutory exceptions to adoption found in
section 366.26, subdivision (c)(1)(B)(i) through (vi). (§ 366.26, subd. (c)(1).)†(Id.
at p. 290.)
In this
case, mother does not dispute that C.G. and A.G. are adoptable. She contends only that the beneficial
parent-child-relationship exception applies.
(§ 366.26, subd. (c)(1)(B)(i).) To avoid termination of parental rights under
the beneficial-relationship exception, the juvenile court must find “a
compelling reason for determining that termination would be detrimental to the
child†due to the circumstances that “[t]he parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.†(
It is the parent’s burden to prove that the exception applies. (In re
Autumn H. (1994) 27 Cal.App.4th 567, 574 (Autumn. H.).)
The
beneficial-relationship exception requires a finding that the parent-child
“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.†(Autumn H., supra, 27
Cal.App.4th at p. 575.) “[T]he
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.†(
The
beneficial-relationship exception requires the parent to show more than
frequent and loving contact or pleasant visits.
(In re C.F. (2011) 193
Cal.App.4th 549, 555; In re C.B.
(2010) 190 Cal.App.4th 102, 126; In re
I.W. (2009) 180 Cal.App.4th 1517, 1527.)
“The parent must show he or she occupies a parental role in the child’s
life, resulting in a significant, positive, emotional attachment between child
and parent. [Citations.] Further, to establish the
section 366.26, subdivision (c)(1)(B)(i) exception the parent must
show the child would suffer detriment if his or her relationship with the
parent were terminated. [Citation.]†(In re
C.F., supra, at p. 555.)
We review
the court’s ruling under the abuse of discretion standard. This means that we review the court’s
findings of fact for substantial evidence
and its conclusions of law de novo, and we reverse its application of law to
facts only if it is arbitrary and capricious.
(In re C.B.,
Mother
argues that the court erred in failing to apply the beneficial-relationship
exception in this case. She asserts
that, “[b]ecause mother visited the children regularly and consistently,
because she and the children shared a bond, and because the impact upon the
children of the juvenile court’s decision to remove her from their lives
forever is unknown, it cannot be said that adoption substantially outweighs the benefit to the children of maintaining
their relationship with mother.†After
termination of reunification services, however, the law does not require the
juvenile court to find that the benefits of adoption substantially outweigh the benefit of continuing the parental
relationship in order to terminate parental rights. To the contrary, it was mother’s burden to
show “a substantial, positive emotional attachment†sufficient to overcome the
preference for adoption. (
Further,
since mother had the burden of proof at trial, “the question for a reviewing
court becomes whether the evidence compels a finding in favor of [mother] as a
matter of law.†(In re I.W., supra, 180 Cal.App.4th at p. 1528.) The issue is whether mother’s evidence was
uncontradicted, unimpeached, and of such weight as to leave no room for a
judicial determination that it was insufficient to support the finding. (Ibid.) Here, there was evidence from the
Department’s social studies that there was no significant attachment between
mother and the girls. In response,
mother offered no evidence, other than her own opinion, that the girls would be
harmed if her parental rights were terminated.
On the record before us, we cannot say that the record compels a finding
that preserving the girls’ relationship with mother outweighs the benefits of
adoption. In other words, the juvenile
court did not abuse its discretion by not applying the beneficial-relationship
exception in this case.
DISPOSITION
The
juvenile court order is affirmed.
name="_ftn1" title=""> *Before Wiseman, Acting P.J., Cornell, J., and Peña, J.
name="_ftn2" title=""> [1]Subsequent statutory references
are to the Welfare and Institutions Code.
