In re Damian C.
Filed 1/22/14 In
re Damian C. CA2/4
NOT TO BE PUBLISHED IN THE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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re Damian C.
et al., Persons Coming Under the Juvenile Court Law.
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.C. and M.D.,
Defendants and Appellants.
B249974
(Los
Angeles County
Super. Ct. No. CK88432)
APPEAL
from orders of the Superior Court of Los
Angeles County, Philip L. Soto, Judge.
Affirmed.
David
A. Hamilton, under appointment by the Court of Appeal, for Defendant and
Appellant S.C.
Roni
Keller, under appointment by the Court of
Appeal, for Defendant and Appellant M.D.
John F.
Krattli, Office of the County Counsel, James M. Owens, Assistant County Counsel
and Navid Nakhjavani, Deputy County Counsel,
for Plaintiff and Respondent.
Appellants
M.D. (Mother) and S.C. (Father) appeal the orders denying their petitions for
modification under Welfare and Institutions Code section 388 and the order
terminating their parental
rights under section 366.26.
name="_ftnref1" title="">[1] Finding no error, we affirm.
The
family came to the attention of the Department of
(DCFS) in June 2011 after a referral alleging physical abuse and domestic
violence. Both parents submitted to an
on-demand drug test and tested positive for amphetamines and
methamphetamine. They admitted to using
methamphetamine “every other day,†and Father stated he had been using the drug
“on and off†since 2003. Their three
children, Damian (then 6), Nathan (then 5), and Ian (then 23 months), were
detained and placed with their maternal grandparents, who lived next door.
true at the August 2011 jurisdictional hearing, that Mother and Father had a
history of engaging in physical altercations and had unresolved substance abuse
issues, including current use of amphetamines and methamphetamine by both
parents, and current use of marijuana by Father.
The
reunification period lasted until September 2012. Immediately after the detention, Mother and
Father were provided referral to substance abuse and domestic violence
programs.
Both began to participate and made
initial progress, completing parenting classes and nearly completing the
six-month drug counseling program. Father completed half of the domestic violence
program. Both parents tested negative
for drugs. In September 2011, DCFS
liberalized visitation, allowing both parents unmonitored day visits with the
children. But in October 2011, Father
was arrested for domestic violence and visitation reverted to monitored. In November, drug tests for both parents
indicated the samples were diluted. In
December 2011, Father tested positive for amphetamines and methamphetamine.
In the
months prior to the September 2012, 12-month review hearing, Father repeatedly tested
positive for amphetamines and methamphetamine (in January, February, March,
July and August 2012), and regularly missed tests. Mother tested positive in March and August 2012.
She also provided diluted samples on
some occasions and missed some tests. Both parents had been temporarily suspended from
their substance abuse programs in early 2012 for missing multiple sessions. In August 2012, Mother and Father appeared at
the program apparently under the influence and were asked to test. After both parents tested positive, they stopped
attending entirely. As of the date of
the 12-month review hearing, Father had not completed the domestic violence
program and Mother had not participated in individual counseling. At the September
19, 2012, 12-month review hearing, the court terminated the parents’
reunification services and set the matter for a hearing pursuant to section
366.26.
Shortly
after reunification services were terminated, there was another reported domestic
violence incident. Father moved out of
the apartment where the couple had been living (next door to the maternal
grandparents and the children). Mother
thereafter lost the apartment as she could not afford to live there on her
own. After the move, Mother continued to
visit the children regularly during the week.
Father visited on weekends, when the children went to visit their
paternal grandparents. In January 2013,
the court continued the section 366.26 hearing to March 20 so that the home
study for the prospective adoptive parents (the maternal grandparents) could be
completed.
In
February 2013, Father submitted a petition for modification under section 388,
seeking additional reunification services.
Father presented evidence that he had been participating in a substance
abuse program and a domestic violence program since October 2012.
ordered DCFS to prepare a supplemental report addressing it.
On March 19, 2013, one day before the scheduled
section 366.26 hearing, Mother submitted a separate petition for modification
seeking additional reunification services or for the children to be returned to
her custody. Mother presented evidence
that she had re-enrolled in the substance abuse program, which was also providing
group therapy for anger management and domestic violence issues and individual
counseling. She had repeatedly tested
negative for drugs and alcohol between October 2012 and February 2013 and had
not missed any tests or program sessions. She stated that “the biological family
deserve[d] a chance to be together again.â€
The court continued the section 366.26 hearing, set a hearing on
Mother’s petition, and ordered DCFS to prepare a supplemental report addressing
the petition.
DCFS
recommended against granting Father’s petition as he had not completed the
52-week domestic violence program in the two years that had elapsed since the
detention, and Father’s enrollment and participation in his earlier programs had
been spotty and intermittent. In addition,
it appeared that the drug treatment program in which he was enrolled was not
DCFS approved, and Father had enrolled only because he had been ordered into a
substance abuse program by a criminal court after being arrested in November
2012.
The supplemental
report stated that Mother’s case manager reported she had been regularly
attending classes for several months. In
April 2013, while awaiting the hearing on her petition, Mother completed the substance
abuse portion of the program and enrolled in the aftercare portion. DCFS recommended against granting Mother’s
petition, noting that “it ha[d] taken her almost two years to complete a
six[-]month [substance abuse] program,†and that there was no guarantee she
would complete her aftercare program and continue to test clean if she were
granted an additional six months of services.
Moreover, although Mother had reported she was living with a maternal
aunt, her relationship with Father was unclear.
In its
final status report, DCFS continued to recommend termination of parental rights
in order to free the children for adoption by the maternal grandparents. Their home study had been completed and
approved.
At the May 23, 2013 hearing on both parents’ section 388
petitions, the court accepted stipulated testimony from Mother that she would
complete the aftercare portion of her substance abuse program in the summer of
2013 and intended to continue individual counseling. Counsel for Mother asked that the children be
returned to her based on her progress in the substance abuse program,
representing that she had a stable home with a maternal aunt. Alternatively, counsel requested an additional
six months of reunification services for Mother. Counsel for Father contended that his
completion of the substance abuse program, consistent negative testing, and
completion of more than half of the domestic violence program supported changed
circumstances sufficient to support granting his petition for additional
services. Counsel for the children
joined in Mother’s request.
name="_ftnref9" title="">[9]
The children’s counsel pointed out that
as the parents would continue to be an active part of the children’s lives due
to their placement with the maternal grandparents, it would be in the
children’s best interest for the parents to complete services. DCFS’s counsel advocated denial of the
petitions, noting the absence of a long-term period of sobriety outside of the
substance abuse programs, the lack of recent testing at DCFS-approved centers,
and Father’s failure to complete the domestic violence counseling. DCFS’s counsel pointed out that in the two
years since detention, Mother and Father had been acting more as playmates than
parents, and that the children had moved on with their lives under the care of
their grandparents.
The
court denied the parents’ section 388 petitions. At the hearing, the court acknowledged that
they “ha[d] done a lot of work†and that it was “difficult for people [who] have
a lengthy and extensive drug history or domestic violence charges against them and
to turn things around overnight.†However, the court noted that even then -- two
years after the children had come under DCFS jurisdiction -- neither the
domestic violence classes nor the aftercare program had been completed. Moreover, in light of the parents’ history, “[a]ny
day for any reason something could trigger [them] to relapse and go back into
drugs again.†Although the parents were
changing, “[t]he[] kids needed to have somebody that was changed way back when
in the later part of 2011 or early 2012, not the middle of 2013 and not the end
of 2013[,] which is what minor[s’] counsel is talking about in giving Mom
and/or Mom and Dad six more months of services.â€
The
court then asked the parties to address the section 366.26 issues. Mother’s counsel introduced into evidence stipulated
testimony that Mother visited the children several times per week, that they
recognized her as their mother, and that during the visits, they participated
in educational activities, such as homework.
Mother’s counsel pointed out that the two older children had lived with
their parents the majority of their lives, that Mother had occupied a parental
role during her visits, and that DCFS appeared to have acknowledged the
existence of a bond with Mother when it reported that the grandparents would
continue to permit visitation. Father’s
counsel also argued that the bond between the children and their parents was
strong enough to outweigh the benefit of adoption. The children’s counsel joined counsel for
DCFS in urging the court to terminate parental rights to free the children for
adoption by the maternal grandparents.
The
court terminated parental rights. At the
hearing, the court stated: “[T]his is
the hardest part for the same reasons we already addressed . . . . You needed to get all of these things done
two years ago so we could have avoided this.
That’s why we try and give you all of the services up front and
encourage you to get these things done up front and warn you that if you don’t,
you could not only lose the services, but lose your rights to be parents of the
children, because they deserve and they need permanency. We need to move on for adoption which is
where we’re going with this. [¶] The
court having read and considered the reports and admitting them into evidence
will make the following findings and orders:
we’ll find that continued jurisdiction is necessary because conditions
continue to exist which justify the court taking jurisdiction under [section]
300. The court will find by clear and
convincing evidence that the children are adoptable. I find that it would be detrimental to the
children to be returned to the parents and there is no exception to . . . . adoption
applying in this case.†Mother and
Father appealed.
A. Section
388 Petitions
Under
section 388, a parent or other interested person may petition the court to
change, modify or set aside a previous order on the grounds of changed
circumstances or new evidence. (§ 388,
subd. (a).) “The petitioner has the
burden to show a change of circumstances or new evidence and [that] the
proposed modification is in the child’s best interests†or that “the child’s
welfare requires the modification sought.â€
(In re B.D. (2008) 159
Cal.App.4th 1218, 1228; see California Rules of Court, rule 5.570(h)(1).) Appellate courts review the grant or denial
of a petition for modification for abuse of discretion. (In re
B.D., supra, at p. 1228.) “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.’†(Id.
at p. 1229, italics omitted, quoting In
re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
The changed
circumstances requirement of section 388 “must be viewed in the context of the
dependency proceedings as a whole. [Citation.]â€
(In
re Marilyn H. (1993) 5 Cal.4th 295, 307.) “Once reunification services are ordered terminated,
the focus shifts from reunification to the child’s need for permanency and
stability, and a section 366.26 hearing to select and implement a permanent
plan must be [held]. . . . [¶] . . . The
fact that the parent ‘makes relatively last-minute (albeit genuine) changes’
does not automatically tip the scale in the parent’s favor.†(In re
D.R. (2011) 193 Cal.App.4th 1494, 1512, quoting In re Kimberly F., supra,
56 Cal.App.4th at p. 530.)
The
juvenile court’s finding that Mother’s and Father’s circumstances had not
changed sufficiently to warrant returning the children or re-opening the
reunification period was not outside the bounds of reason. Jurisdiction was the result of domestic
violence perpetrated by Father and the parents’ consistent abuse of dangerous
and highly addictive drugs. Father’s
commitment to long-term change was suspect, as he had previously failed to
comply with the terms of a drug treatment program and had re-enrolled in the current
program to meet the requirements of a criminal court proceeding. He had never successfully completed the
required domestic violence program. Both
parents had continued abusing drugs well after DCFS took custody of their
children. Both were still participating
in substance abuse treatment programs at the time of the hearing on their
petitions and had not shown they could maintain sobriety outside the confines
of such programs. Both had relapsed in
the past after making initial progress. The
children were very young and had already spent two years outside their parents’
custody, growing accustomed to their new home.
Given this evidence, the court could reasonably have concluded that although
Mother and Father were making some progress in dealing with their substance
abuse and anger management issues, they had not sufficiently changed to support
returning the case to the reunification phase and delaying the children’s
permanent placement.
B.
Section 366.26, subdivision (c)(1) requires the juvenile
court to terminate parental rights and order the dependent child placed for
adoption if it finds by clear and convincing evidence that the child is likely
to be adopted, unless it finds “a compelling reason for determining that
termination would be detrimental to the child†due to the existence of
specified exceptional circumstances.
(See § 366.26, subd. (c)(1)(B).) Subdivision
(c)(1)(B)(i) provides an exception to termination where “[t]he parents have
maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.â€
There
is no dispute that the children were likely to be adopted by their maternal
grandparents with whom they had lived for nearly two years. Once the likelihood of adoptability is ascertained,
the burden is on the parent to demonstrate that termination of parental rights to
free the child for adoption would be detrimental to the child. (In re
T.S. (2009) 175 Cal.App.4th 1031, 1039; In
re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) “Because adoption is more secure and
permanent than a legal guardianship or long-term foster care, adoption is the
Legislature’s first choice for a permanent plan for a dependent minor child who
has not been returned to the custody of his or her parents and who is found by
the dependency court to be adoptable.†(
452, 469.) “[I]t is only in exceptional
circumstances that a court will choose a permanent plan other than
adoption.†(Ibid.) We review the trial
court’s section 366.26 finding to determine whether substantial evidence
supports it, construing the evidence most favorably to the prevailing party and
indulging in all legitimate and reasonable inferences to uphold the court’s
ruling. (See In re S.B. (2008) 164 Cal.App.4th 289, 297-298;
538, 545.)
title="">[10]
The
evidence established that the parents maintained regular visitation throughout
the proceedings. The issue before the
court was whether the termination would be “detrimental†because the children
would “‘benefit from continuing the relationship.’†That phrase has been interpreted to refer to
a parent-child relationship that “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.†(
575.) “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.†(Ibid.) The existence of the
section 366.26, subdivision (c)(1)(B)(i) exception must be determined “on a
case-by-case basis, taking into account the many variables which affect a
parent/child bond,†such as, “[t]he 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 . . . .†(In re
Autumn H., supra, 27 Cal.App.4th at p. 576.)
Here,
the court found that it would be detrimental to the children to be returned to
the parents and that none of the statutory exceptions applied. The finding is supported by substantial
evidence. The children were very young
-- 6, 4 and under 2 -- in June 2011 when they were detained, and by the time of
the section 366.26 hearing, had been cared for by their grandparents for a substantial
portion of their lives. In 2012, shortly
after reunification services were terminated, Mother and Father moved away from
the apartment complex where the children were living and ceased being a day-to-day
fixture in their lives. The reports
indicated that in 2011 and 2012, Damian expressed a desire to live with his
parents because “we have fun and we play,†but that he was also content to stay
with his grandparents. No other evidence
was presented that the children missed their parents, suffered from their
absence or were unhappy in their placement.
Thus, there was no evidence that they would be “greatly harmed†by the
loss of the relationship.
Mother
contends that evidence established that she maintained a parental role in the
lives of the minors because of the uncontested evidence she helped them with
their homework. Counsel stipulated that Mother
would testify to that effect. The court
was not bound to give the stipulated testimony credence, especially where, as
here, two of the children were pre-school when detained and the children were only
8, 6 and not yet 4 when the court terminated parental rights. In any event, there was no evidence Mother
and Father cared for them in other essential ways, such as feeding or bathing
them, taking them to medical appointments, or providing financial support. (See In
re Autumn H., supra, 27
Cal.App.4th at p. 575 [“Interaction between natural parent and child will
always confer some incidental benefit to the child. The significant attachment from child to
parent [to support the exception] results from the adult’s attention to the
child’s needs for physical care, nourishment, comfort, affection and
stimulation.â€].)
Mother
and Father contend that evidence of a significant bond was undisputed because
in the supplemental reports addressing the petitions for modification, the
caseworker responded to the parents’ contentions that they and the children shared
a bond by observing that the parents would continue to see the children due to
the maternal grandparents’ expressed willingness to allow parental visitation
to continue. We do not view this as a
concession on DCFS’s part, but an acknowledgment that a relationship is likely
to continue when the children are adopted by close family members.
Mother
and Father contend the court applied an incorrect standard, relying on the
statements made by the court prior to ruling on termination, quoted above. Specifically, they point to the court’s
statements that “[the parents] needed to get all of these things done two years
ago so we could have avoided this†and “[t]hat’s why we try and give you all of
the services up front and encourage you to get these things done up front and
warn you that if you don’t, you could not only lose the services, but lose your
rights to be parents of the children, because they deserve and they need
permanency.†The parents contend the
court “relied on the criteria for a petition for modification, not the
beneficial relationship exception†in making its ruling. We view the court’s statements as an
expression of regret that the parents did not turn their lives around in time
to avoid reaching the termination stage.
Nothing in the record indicates the court was unaware of or failed to
apply the appropriate criteria.
The
orders denying the section 388 petitions and terminating parental rights are
affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We
concur:
EPSTEIN,
P. J.
EDMON, J.*
*Judge of the Los Angeles Superior
Court, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
statutory references are to the Welfare and Institutions Code.
child old enough to be interviewed, reported that Mother and Father fought a
lot, and that Father called Mother “bad names†and caused her to cry. He further reported that Father had thrown an
object and broken a window, and that Nathan had almost stepped in the broken
glass. Damian also stated that Father
hit Mother and sometimes hit him on the back of the head, hurting him and
making him cry. Damian was afraid of
Father.
