In re D.S.
Filed 7/26/13 In re D.S. CA5
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In
re D.S., et al., Persons Coming Under the Juvenile Court Law.
TULARE COUNTY HEALTH AND HUMAN SERVICES
AGENCY,
Plaintiff and Respondent,
v.
L.K.,
Defendant and Appellant.
F066146
(Super. Ct. Nos. JJV063751A & JJV063751B)
APPEAL from
a judgment of the Superior Court of
County. Juliet L.
Boccone, Judge.
Catherine
C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen
Bales-Lange, County Counsel, John A. Rozum and Jason Chu, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
L.K.
(mother) appeals juvenile court orders summarily denying her petition for
modification under Welfare and Institutions Code
rights to her daughter, Rebecca S., and establishing a legal guardianship for
her daughter, D.S., under section 366.26.
Mother contends the court erred by summarily denying her modification petition,
by which she sought to have her daughters returned to her custody or to have
to find the beneficial parent/child relationship and beneficial sibling
relationship exceptions to adoption applied to preclude termination of her
parental rights to Rebecca. Finally, she
contends the court erred by terminating visitation with D. We affirm the orders.
In January 2010, D., who was then nine
years old, was hospitalized under section 5150, after assaulting mother,
Rebecca, and two other children in the home.
D. was diagnosed with acute posttraumatic stress disorder attributed to
being exposed to a history of domestic violence between her parents. In 2006, D.’s father, Daniel S. (father), was
arrested and served a 360-day jail term after pleading guilty to spousal
abuse. During father’s incarceration,
mother and father divorced and mother obtained sole physical and legal custody
of the children at that time.
Following D.’s hospitalization,
mother requested assistance in placing D. based on her inability to protect
Rebecca from D. or protect D. from herself.
The respondent Tulare County Health
and Services Agency (agency) initiated dependency proceedings and placed D.
in a therapeutic foster home.
In May 2010, the juvenile court took
dependency jurisdiction over D. under section 300, subdivision (c) (serious
emotional damage). The court removed D.
from parental custody, and granted the parents reunification services. The court also ordered weekly supervised
visits. The court removed D. from
parental custody, and granted the parents reunification services. The court also ordered weekly supervised
visits.
As of
mid-November 2010, the parents had complied with court-ordered services and
consistently visited with D. Agency and
CASA (Court Appointed Special Advocates) reports both noted that D. experienced
anxiety before visits with mother but not before visits with father. Despite her anxiety, however, D. also
reported enjoying visits with mother.
In a report
for the six-month review hearing, the social worker noted that during a recent
visit with mother in late November 2010, D. became agitated and refused to
return to her foster home, indicating she wanted to go home with mother. The social worker learned from several
sources mother had been telling D. she would be going home. After speaking with mother, the social worker
concluded that, for the past five months, mother had maintained a sincere
belief D. would be going home once she stabilized. The social worker explained the outcome was
unknown and mother appeared to understand.
At the six-month review hearing in
early December 2010, the juvenile court ordered father to begin having some
unsupervised visits with D. The court
ordered supervised visits to continue with mother, finding there was evidence
unsupervised visits would be detrimental to D. based on the child’s anxiety and
behavior, and mother’s inability to follow the court’s orders regarding
discussing placement and return home with the child.
In early February 2011, the agency
initiated dependency proceedings on behalf of Rebecca, who was then six years
old. Among other things, the agency
alleged Rebecca was at substantial risk of suffering from serious emotional
damage due to mother’s emotionally abusive behavior (§ 300, subd. (c)),
which included manipulating Rebecca into making allegations of physical and
sexual abuse against father and exposing her to age-inappropriate materials and
pictures about abuse. Based on the
dependency proceedings involving D., the agency also alleged that mother’s
emotional abuse of D. engendered a similar risk of harm to Rebecca (§ 300,
subd. (j)). At the detention hearing,
the juvenile court ordered Rebecca to be placed with father and ordered
therapeutic visitation with mother.
In a report for the 12-month review
hearing in D.’s case, the social worker recommended terminating mother’s reunification
services. The social worker noted that,
although mother had completed parent training and continued to attend therapy,
she had not stabilized her living situation, personal life, or mental health. Instead of focusing on herself, mother
appeared to have spent all her energy attempting to prove father was not a
suitable parent.
Shortly after Rebecca’s detention,
mother called the social worker and said her house “burned to the ground.†The social worker subsequently learned from a
fire department investigator that the fire was confined to the master bedroom
and, while mother claimed father started the fire, all the evidence pointed to
mother having started the fire.
Similarly, a police investigator reported he was 100 percent certain
mother committed arson. The fire
department investigator also reported a pet died in the fire and expressed
concern that someone who would leave animals in the house to die would be a
danger to herself and her children.
The social worker further reported
that mother had subjected her daughters to inappropriate behavior and
conversations. Mother made false reports
that father molested Rebecca and coached Rebecca to tell her physician she was
molested. Mother also subjected Rebecca
to a “SART†examination at the hospital.
Rebecca told her therapist that mother “showed her how to throw fitsâ€
and she was helping mother send father back to jail. The therapist felt Rebecca carried a lot of weight
in having to take care of mother and mother was not capable of parenting. The social worker believed the therapist’s
assessment would also apply to D.
The social
worker further reported that mother made inappropriate comments during visits
with D. and engaged in conduct interfering with the foster parents’ ability to
make day-to-day decisions regarding D.’s care.
On several occasions, mother looked at D. at the beginning of the visit
and stated, “You need your eyebrows waxed.â€
The foster parents reported that mother had recently asked them to allow
her to follow them to a salon and offered to pay for the hair removal. In the social worker’s opinion, suggesting to
a 10-year-old she needed her brows waxed in order to look acceptable was
hurtful and did not promote the self-confidence others were trying to instill
in her.
On another occasion, mother gave D.
money with a list of specific instructions on what to do with the money. The foster parents reported the
responsibility mother placed on D. for spending the money led to a major incident
with D. running away from the foster home and the police being called.
Additionally, the social worker
received ongoing complaints from the foster parents about mother making
inappropriate statements during phone visits with D. For example, shortly after Rebecca’s
detention, mother told D. that Rebecca had been kidnapped and a bald man had
been seen taking Rebecca from her school.
D. was very distressed by this “news†about Rebecca. Although the foster parents monitored the
phone visits, mother would usually blurt something out and it would be too late
to intervene.
D. also made repeated statements
about father wanting to kill mother that were clearly a repetition of mother’s
words.
In a report for the
jurisdiction/disposition hearing in Rebecca’s case, the social worker reported Rebecca
was doing well in her placement with father and her negative behaviors had
stabilized. The social worker also
recommended that mother not be offered reunification services based on her
failure to reunify with D.
At the 12-month review hearing in
D.’s case, which occurred on April 12, 2011, the juvenile court terminated
mother’s reunification services. The
court ordered weekly supervised visits with mother and unsupervised visits with
father, including overnight visits at the agency’s discretion.
In late April 2011, the juvenile
court exercised its jurisdiction over Rebecca under section 300 subdivisions
(c) and (j), and granted sole legal and physical custody of Rebecca to
father. The court ordered monthly visits
with mother were to continue in a therapeutic setting until the therapist
determined visits could occur outside such setting.
In a report
for the 18-month review hearing in D.’s case, the social worker recommended
that D.’s visits with mother be changed from supervised to therapeutic
visits. During visits with D., mother
continued to overstep boundaries she knew were not acceptable. For example, she turned up the music so the
case aide could not hear what she was saying to D. However, mother did comply when the case aide
told her to turn the music down. Mother
also questioned D. over and over again about how she was feeling, not stopping
until D. gave her the response she wanted.
The social worker thought mother was attempting to act as D.’s therapist
during visits.
Regarding sibling visits, the social
worker reported that D. had been having supervised visits with Rebecca every
other week since May 2011. Although the
children had some difficulty with sibling rivalry, many service providers
remarked there was an obvious bond between them and the children expressed they
liked spending time together at their visits.
At the 18-month review hearing in
D.’s case on August 12, 2011, the juvenile court placed D. in father’s custody
and set a hearing on the agency’s recommendation regarding visitation with
mother. In an addendum report prepared
for that hearing, the social worker reported that on July 5, 2011, following an
incident in which D. and Rebecca ran away from father’s house, mother called
the social worker and claimed the investigating police officer told her the
children said they ran away because father was hitting them and they were
afraid of him. The same day, the officer
told the social worker the children did not make the statements mother
attributed to them. Instead, the
children said mother told them to run away during D.’s supervised visit on
Friday, July 1, 2011. When the officer
asked D. if father was hurting her, she said no. The children did not appear to be afraid of
father when they were dropped off at his house.
The social worker also described
recent incidents in which mother flouted instructions regarding visitation,
including not to bring presents or to talk about her recent loss of stillborn
twins. As to the latter, the children’s
therapist had made it very clear to mother that talking about the loss of the
twins would not be beneficial to either Rebecca or D. Nonetheless, mother engaged in behavior
drawing attention to the loss, including exposing a tattoo on her back
depicting two sets of baby feet, wearing a necklace with symbols representing
four children, and including photos of the twins’ funeral among photos of a
grandparent’s funeral D. had asked mother to bring to the visit.
Mother also continued to make
inappropriate statements about the dependency proceedings. During a supervised visit on August 15, 2011,
mother told D. she would not have visits anymore because of the upcoming court
hearing and because it might conflict with her visits with Rebecca. The case aide said she would try to reschedule
visits so mother could still visit D.
Later during the same visit, when D. suggested she might be able to have
overnight visits with mother, mother responded it would not be possible. D. then suggested mother might be able to
come to her school. Mother replied,
“That would never happen.†When D. asked
her mother why not, mother replied, “You made your choice.†D. asked, “What?†Mother repeated, “You made your choice.†Confused, D. asked her mother to explain how
she had made a choice. The case aide
intervened and told mother the conversation was inappropriate. A few minutes later, D. asked mother if she
was okay. Mother stated she felt bad and
guilty, she did not mean it, and it came out wrong. Mother also apologized to the case aide and claimed
she meant to say “the decision has been made.â€
The social worker observed that,
since D. had been receiving rehabilitation services in father’s home, her
behaviors had begun to improve. But D.
continued to have difficulty managing her behaviors after visits with
mother. Because of mother’s ability to
twist words and actions to portray only good intentions, the social worker
opined a trained therapist would be the best person to handle visits with
mother.
At the hearing regarding visitation
on August 23, 2011, the juvenile court found it was in D.’s best interests to
have visits with mother occur only in a therapeutic setting. The court also reduced visits to twice a
month.
On November 29, 2011, the agency
filed a section 300 petition on Rebecca’s behalf alleging father’s physical
abuse placed the child at a substantial risk of suffering serious physical harm
(§ 300, subd. (a)). The same day,
the agency filed a supplemental petition (§ 387) on D.’s behalf. According to the petition, on August 12,
2011, the juvenile court returned D. to father’s custody under court-supervised
family maintenance and ordered there was to be no corporal punishment used on
the child. This placement disposition
had been ineffective in protecting D. due to father’s anger management issues
and incidents of physical violence
against D. Since D.’s return to father’s
custody, there had been four agency referrals for physical abuse by father, one
of them substantiated.
At the
detention hearing in early December 2011, D. and Rebecca were placed together
in a foster home and father was ordered supervised visits twice a week.
In an
addendum report submitted in January 2012, the social worker reported that
mother continued to be manipulative and was now contacting D. through
letters. After assuming the therapist
was helping D. review the letters in therapy, the social worker learned the
therapist had not been reading the letters.
The social worker also learned that mother contacted D.’s principal and
teacher on a weekly basis and communicated with D. through these professionals,
even though the school had been sent the court’s orders regarding mother’s
contact with D.
The social worker observed that both
mother and father continued to act without the children’s best interests at
heart. They disobeyed court orders and
failed to accept responsibility for their actions, instead blaming others
involved in the case. It was evident the
children had suffered as a result of their parents’ bitter custody battle and
inability to parent appropriately.
The social worker added that D. and
Rebecca had become very close over the past six months and it would be
detrimental to both of them to be separated at that time.
In an addendum report submitted in
early March 2012, the social worker reported that, on January 17, 2012, after
Rebecca disclosed she had been sexually abused by D., the agency instructed the
foster parents to separate the children and alarms were installed on their bedroom
doors. On January 28, 2012, D. attempted
to make a sexual advance towards another foster child. The agency placed D. and Rebecca in separate
licensed foster homes and implemented a safety plan to assure other foster
children were protected from D.’s sexualized behavior.
The social worker further reported
that father made statements indicating he had been aware of a number of
incidents of sexualized behavior between D. and Rebecca occurring between April
2011 and November 2011. When asked why
he failed to report these incidents to the children’s therapists or social
workers, he responded he did not think it was necessary and he felt
“uncomfortable†addressing the behavior with the children.
Following the contested jurisdiction
hearing, which took place in late January 2012, the juvenile court issued a
written ruling on March 14, 2012, sustaining allegations against father in
amended section 300 and section 387 petitions, as well as in a subsequent
petition (§ 342), the agency filed on behalf of the children. In so ruling, the court found the following
two incidents of physical abuse occurred:
“On or about November 14, 2011, while Rebecca was in the shower,
[father], as a form of punishment, struck Rebecca in the face and hip with his
hand†and “On or about October 13, 2011, [father] engaged in a physical
altercation with [D.]. During the
physical altercation [D.]’s face was injured.â€
The court also found that father neglected D.’s medical needs by failing
to ensure she regularly received all doses of her psychotropic medication.
In early April 2012, mother filed
her first section 388 petition for modification, seeking to have Rebecca
returned to her care and reunification services reinstated as to D. As changed circumstances, the petition alleged: “Both children were removed from their
father’s care and remain in foster care.
I have continued to attend and participate in therapeutic visitation
with my children and attend counseling.â€
In an attachment to the petition, mother asserted, among other things,
that the allegations of physical abuse involving father recently found true by
the juvenile court were “the same allegations that the mother was accused of
making up and was used as a denial of continued services as to [D.] … and as a
basis for removal of Rebecca.â€
At the disposition hearing in May
2012, the juvenile court ordered Rebecca and D. removed from father’s custody
based on the facts of the sustained petitions.
The court also denied mother’s section 388 petition, finding there had
been no change of circumstances, and even if there had been a change of
circumstances, mother had not shown it was in the children’s best interests
that they be returned to her custody or for reunification services to be
reopened.
The juvenile court further found
both parents were out of time for reunification services as to D., and denied
reunification services as to Rebecca based on their failure to reunify with
D. The court suspended mother’s rights
to make any medical, dental, mental health, and educational decisions for the
children. The court ordered weekly
supervised visits with father, twice monthly supervised visits with mother, and
set a section 366.26 hearing.
In a report on Rebecca for the
section 366.26 hearing, the social worker recommended the juvenile court find
Rebecca adoptable and terminate parental rights. The social worker noted that, since visits
with mother had changed from a therapeutic to a supervised setting, visits had
been a better experience for the children.
They were happy to see mother and interacted appropriately with
her. Rebecca was very easy going and
carefree, while D. was much more emotional and quick to become upset and
withdrawn. At the end of a recent visit,
Rebecca gave mother a hug and kiss but did not show any signs of being sad it
was time to say goodbye. The children
ran to meet their foster mothers.
Rebecca said, “Hi mommy!†and gave her foster mother a hug when she saw
her.
The social worker concluded that,
while Rebecca appeared to enjoy visits with her parents, there did not seem to
be any benefit to her in having the visits continue. Rebecca had adjusted to the idea she would be
living permanently with her foster parents and understood parental visits were
coming to an end. She did not ask to see
her parents, did not look forward to visits with them, or show distress when
the visits ended. The social worker also noted a trend in that the visits would
bring up a lot of negative memories for Rebecca regarding things that had
happened in the past. Her foster parents
would listen to her and help her process those thoughts and memories. The social worker noted that Rebecca’s
primary attachment was to her foster parents.
Rebecca referred to them as mom and dad, and viewed their daughters as
her sisters.
Regarding sibling visitation, the
social worker reported that Rebecca enjoyed visiting with D., but visits could
also be stressful for her because of D.’s behavior. When they spent significant periods of time
together, there tended to be conflict.
During a week in August 2012, the children spent almost every day
together. By the end of the week,
Rebecca had become very stressed due to the frequent conflict with D. The foster parents reported that on the
Saturday night after the week spent with D., Rebecca had a major tantrum when
she was told it was time to clean up an art project she was working on. She started screaming and ripping the
paper. This type of behavior was very
uncharacteristic for Rebecca, and it appeared the stress of the week spent with
D. was the cause of Rebecca’s outburst.
The social worker recommended that sibling visits be closely monitored
by their foster parents, and if Rebecca continued to have similar reactions
after prolonged visits with D., the visits be reduced to no more than once a
week.
A CASA report for the section 366.26
hearing noted that mother continued to bring gifts to the visits without
approval. Most recently mother had
brought school supplies for the children but was not allowed to bring them into
the visit. Mother also continually sent
emails to the foster parents about various topics and with various
requests. She recently sent news of her
engagement and future wedding, and asked the foster parents to communicate the
news to the children. When her request
was denied, mother responded that she would not lie to the children if it came
up and she would tell them the news.
Mother sent another email asking the foster mothers to attend a group
counseling session with mother’s therapist of 10 years in order to “set
boundaries†until the children turned 18 and were returned to her.
The CASA report also described a
recent visit in which mother reportedly noticed “sores†all over Rebecca’s body
and exclaimed that Rebecca had to be taken to the doctor immediately to have
them treated. When the visit ended,
Rebecca was convinced she had sores on her arms and legs and wanted to be taken
to the doctor right away. Neither the
worker who supervised the visit nor the foster mother could see or find any
kind of sore or mark on Rebecca’s skin.
However, Rebecca was taken to the doctor’s office. There, the doctor found no evidence of sores
and expressed no concern about Rebecca’s health.
According to the CASA report, both
sets of foster parents continued to express concern about the negative impact
visits with mother was having on the children and their ability to maintain
stability in their foster homes. D.’s
foster parents reported D. continued, although less frequently, to have
behavioral issues when returning from visits with mother. After visits, she seemed to be more
emotionally unstable and was often unable to follow rules already set and
established in the foster home. When she
was disciplined, her behavior could turn into a full blown “tantrum.†Similarly, Rebecca’s foster parents reported
she had some behavioral issues after her visits with mother. She would often become reserved and distant
or very hyperactive. She would also exhibit
some anxiety for a few days.
Concerning the relationship between
D. and Rebecca, the CASA report noted that, although they were placed in
separate foster homes, both foster families had an established relationship
with the children and with each other and this helped increase the amount of
time the children were able to spend with each other outside of scheduled
visits. Both D. and Rebecca expressed a
desire to continue spending time with each other and with each other’s foster
families. The children were also
together during visits with mother, and there had not been any issues with
their interaction at these visits.
In a report on D. for the section
336.26 hearing, the social worker recommended that a legal guardianship be
established for D. with her current care providers and her dependency be
dismissed. The social worker reported
that mother’s mental health instability and manipulative and controlling
behavior continued to cause D. to be stressed and confused about reality. During a visit in late July 2011, which the
social worker supervised, D. constantly sought mother’s approval. When mother’s attention was on Rebecca, D.
became upset towards both of them. D.
would either become withdrawn or engage in behaviors such as whining, kicking,
and crying. When visits with mother
ended, D. was eager to return to the foster parents and did not cry when they
departed from the visit.
The foster parents reported that D.
continued to have emotional breakdowns attributed to visits with mother. Any topic relating to mother usually
escalated into a tantrum, during which D. would scream, kick, and bite the
foster parents. On one occasion, when
the foster parents attempted to schedule events for the summer, D. became angry
because, according to her, mother had already planned her summer during a
visit. D. told her foster parents, “My
mom said I have to do these events.†The
social worker opined that D.’s apparent belief that mother still had some level
of control in her life was unhealthy and jeopardized her well-being. D.’s need to be accepted by mother appeared
to be a stressor leading to behavioral issues in the foster home.
D.’s
therapist reported the child had been diagnosed with reactive attention
disorder (RAD), a mental disorder characterized by a failure to form a normal
attachment with the primary caregiver in early childhood. By definition, RAD “is associated with
grossly pathological care that may take the form of persistent disregard of the
child’s basi[c] emotional needs.†The
social worker observed that, since D.’s birth, her parents had maintained a
dysfunctional and hostile relationship, adding to D.’s mental health
instability. Visits with her parents
appeared to have a negative influence on D.’s behavior due to her failure to
establish a healthy attachment with them.
With
respect to sibling visitation, the social worker noted that D. and Rebecca were
unable to visit for long periods of time as it led to arguments. At times, D. exhibited overwhelming,
controlling behavior towards Rebecca. D.
appeared to resent Rebecca because she was a resilient child who rarely got in
trouble, while D. was often viewed as the “troubled child.†For this reason, D. felt animosity towards
Rebecca and would immediately become upset if a parent paid more attention to
Rebecca. D.’s negative behavior also
appeared to have a negative influence on Rebecca’s behavior in that she tended
to mimic D.’s aggressive behavior. The
social worker recommended reducing sibling visits to once a month.
On August
27, 2012, mother filed a second section 388 petition for modification requesting
the juvenile court to return D. and Rebecca to her custody or to reinstate
reunification services. Mother also
requested the court to reinstate her medical, educational, and mental health
rights, and to consider relative placement if the court did not agree with
returning the children to her custody.
As changed circumstances, the petition alleged: “Both children were removed from their
father’s care and remain in non-relative placement. I have continued to attend and participate in
visitation with my children and additional services, described in the attached
declaration.â€
In addition to the changed
circumstances alleged in the section 388 petition, mother’s supporting
declaration asserted further changed circumstances included that she was getting
married in September 2012, and had the support of her fiancé, family and
friends; she resided in a large four-bedroom home with plans to purchase; she
completed her graduate education; she had a part-time job affording a flexible
schedule; and she had been hired by two companies for contract work to begin
with the commencement of the school year.
Mother declined to identify the companies that had hired her,
asserting: “I am afraid to indicate
where I have been hired as the Agency … has told me a number of places that
‘you cannot work because it would be a conflict of interest.’ I am afraid that if I disclose this
information, another restriction, by the Agency, will be imposed on me.â€
In her
declaration, mother leveled numerous complaints against the agency regarding
its handling of the dependency proceedings.
For example, mother asserted:
“The Agency has a history of making
hasty and poor decisions in regards to this case, shutting me out at any
opportunity, and not seeking what a multitude of Professionals contributed as
to the best interests of the girls, which was the fostering of an ongoing bond
and relationship with me. The Agency has
been very selective only allowing their opinion or the selected opinions that
align theirs into the records the Court have for review and fully omitted or
incorrectly reported what the Therapists had reported to the Agency.… [¶]
“… In this case, time and time
again, the Agency has worked to build a case against any reason to provide me
services while bending over backwards to support the Father in his
reunification efforts. While it is not
meant to be comparative, I have no criminal history; I work in Education; and I
have previously worked for 10 years in Social Work, and yet not even similar
opportunities were afforded me. I have
been the one who has been responsible for primary parenting responsibilities
and daily care needs, in addition to their emotional and spiritual needs being
met, not the Father. The Agency does not
seem to weight any significance as to the history of the bond between these
children and myself nor to the Professionals opinions that have been afforded
the Agency. Not allowing me the
opportunity of reunification services is simply not in the best interest of the
girls and, in fact has already proven detriment[al] to them and will continue
to prove detrimental.â€
Mother repeatedly referred to the agency as having a
“personal agenda to alienate the children from their parents a biological
family.†She also criticized others
involved in the dependency proceedings including father, father’s attorney,
social workers, and foster parents.
On August 29, 2012, the agency filed
an addendum report addressing the sibling relationship. The social worker noted that, since late
January 2012, the children had been living in different homes after they were
separated because D. was acting out in a sexualized manner towards
Rebecca. After the children were
separated, Rebecca continued to thrive.
She did not suffer any hardship or anxiety from being separated from
D. She was able to settle in with her
current foster home and create an identity with her new foster sisters and
foster parents. Rebecca did not request
more frequent contact with D. and did not ask to be placed back together with
her. Frequent contact with D. could be
very stressful for her. The addendum
report concluded that, although Rebecca enjoyed visiting with D., it would not
be detrimental to Rebecca if visitation came to an end. Because the children were placed with family
friends, continued contact between them was likely. However, if that contact were to be severed,
Rebecca would continue to be happy and successful in her home and other areas
of life.
On August 30, 2012, the agency
submitted an addendum report responding to mother’s section 388 petition. In the report, the social worker recommended
denying the petition, observing: “In the
mother’s twenty-five page report named Declaration
and Argument of Mother, dated July 29, 2012, she presented information that
is evidence in and of itself that the mother has not changed. Her declaration is old or is already before
the court.†The social worker
continued: “The same reasons and
concerns why the court denied Reunification Services on 04/29/2011 and
05/10/2012 remain of concern today.â€
The social worker observed that,
despite mother’s participation in numerous intervention programs, which mother
listed in her declaration, those services had been ineffective in addressing
her mental health issues. Mother
continued to engage in controlling and manipulative behavior towards the
children to the detriment of their well-being.
The social worker referred to recent examples, including the visit where
mother convinced Rebecca she needed medical care for sores on her body. In another visit, mother questioned Rebecca
why she was dirty. Rebecca explained her
feet were dirty because she had just returned from “playing outside.†Mother subsequently filed a claim against the
foster parents, alleging the foster home was filthy and Rebecca did not
shower. The allegation was investigated
and determined to be unfounded.
The social worker noted mother’s
behavior reflected a consistent pattern of manipulating the children’s behavior
by making them believe a false claim.
Mother also had a long history of fabricating false allegations against
people who posed a threat to her, and it appeared she was now using her
visitation time to obtain information from the children in hopes of making such
claims.
Finally,
the social worker observed that mother had failed to take responsibility for
her role in the children’s abuse and failed to understand the reasons why the
court terminated reunification services.
When the social worker spoke with mother in late May 2012, he
specifically asked if she understood why the children could not be returned to
her care. She failed to answer the
question. Instead she blamed father for
his role in domestic violence. When the
social worker repeated the question, mother again avoided the question and
failed to accept responsibility for her role in the abuse.
On October
22, 2012, the juvenile court summarily denied mother’s section 388 petition,
stating: “I don’t find that there’s
sufficient change of circumstances to warrant a 388 hearing at this time.†The court then proceeded to the section
366.26 hearing and heard the parents’ testimony.
Mother testified she had ongoing
contact with D. since the child was removed from her care. Until May 2012, mother participated in all of
D.’s educational, medical, mental health, dental, and vision services. Prior to D.’s placement in foster care, the
children lived together with mother and continuously participated in family
activities. They went to church every
week, took family vacations together, and celebrated their birthdays with other
family members. The children were also
enrolled in activities including soccer, basketball, and cheerleading.
Mother testified that, at the
beginning of visits, D. and Rebecca would run right up to her and call her
“Momma.†They expressed affection
towards her continually throughout the visits.
They would kiss her, play with her hair, and say, “I love you Mommy, I
miss you Mommy.†Rebecca would
specifically ask about mother’s fiancé, asking whether he missed and loved her,
and would ask mother to tell him she missed and loved him.
Usually at the end of visits,
Rebecca would ask mother to carry her and D. would hold mother’s hand while
mother walked them out. According to
mother, this stopped during the second visit in July 2012, when mother “was no
longer allowed to hug them or walk them out.â€
The children always asked mother to walk out with them and could not
understand why mother was unable to walk them to the door.
Regarding the visit in which mother
reportedly told Rebecca she had sores or spots on her, mother testified: “She told me.
I did not tell her.†Mother
claimed that both she and the social worker present saw some sores or spots on
Rebecca.
Mother further testified that during
visits, the children interacted with each other most of the time and expressed
affection towards each other. According
to mother, this expression of affection was “typical for them†and they had “a
real good, sharing relationship.â€
Father testified he loved his
daughters, but he thought it was in their best interests to be placed with
their current foster families. He did,
however, oppose the recommendation to terminate his visits with D. During visits, the children were affectionate
towards him and D. did not have tantrums.
In father’s opinion, D.’s emotional and mental health had improved
dramatically since her placement with her current care providers. He was now able to sit down and talk to her
like an adult. But he also thought she
was susceptible to falling back into old patterns.
After considering the evidence and
arguments of counsel, the juvenile court adopted the agency’s findings and
recommendations, which included terminating parental rights to Rebecca,
ordering a legal guardianship for D., and dismissing D.’s dependency. The court further found that parental
visitation “would be detrimental and not in the best interest of the child
[D.],†and ordered the parents were to have no visitation, telephone contact,
or other communication with D. In regard
to its orders in D.’s case, the court observed:
“[S]he’s doing much better in her current placement and I
believe the stability is absolutely necessary for her success in life. Based on the mental health findings, it does
not seem appropriate to place her in a precarious situation where she’s torn
between her parents and her legal guardians.â€
DISCUSSION
Mother contends the juvenile court
abused its discretion by summarily denying her second section 388 petition for
modification seeking to have D. and Rebecca placed with her or for
reunification services to be reinstated.
Mother asserts she made a prima facie showing her circumstances had
changed and that the proposed modifications were in the children’s best
interests.
Section 388 allows a parent of a
dependent child to petition the juvenile court to change, modify, or set aside
any previous order of the juvenile court.
When it appears from the petition that the best interests of the child
“may†be promoted by the proposed modifications, the court “shall†order a
hearing on the petition. (§ 388,
subd. (d); see In re Marilyn H.
(1993) 5 Cal.4th 295, 309–310 (Marilyn H.)
[“[t]he parent need only make a prima facie showing to trigger the right to
proceed by way of a full hearingâ€].) The
court may summarily deny a section 388 petition without a hearing, however, if
the petition fails to make the required prima facie showing. (Cal. Rules of Court, rule 5.570(d);
246, 250 (Anthony W.).) “‘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.]â€
(In re C.J.W. (2007) 157
Cal.App.4th 1075, 1079.)
A section
388 petition must be liberally construed in favor of its prima facie
sufficiency (Cal. Rules of Court, rule 5.570(a); Marilyn H., supra, 5
Cal.4th at p. 309), but conclusory allegations in a petition or its supporting
declarations, without supporting evidence, are insufficient to make the
required prima face showing (Anthony W.,
supra, 87 Cal.App.4th at pp.
250–251). “A ‘prima facie’ showing
refers to those facts which will sustain a favorable decision if the evidence
submitted in support of the allegations … is credited. [Citation.]â€
(In re Edward H. (1996) 43
Cal.App.4th 584, 593.) “Successful
petitions have included declarations or other attachments which demonstrate the
showing the petitioner will make at a hearing .…†(Anthony
W., supra, at p. 250.) Indeed, “[i]f a petitioner could get by with
general, conclusory allegations, there would be no need for an initial
determination by the juvenile court about whether an evidentiary hearing was
warranted. In such circumstances, the
decision to grant a hearing on a section 388 petition would be nothing more
than a pointless formality.†(
We review a
juvenile court’s summary denial of a section 388 petition for abuse of
discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.) If the petition fails to make the required
prima facie showing, summary denial of the petition without a hearing does not
violate the petitioner’s due process rights.
(Id. at pp. 460–461.)
Furthermore,
when a section 388 petition is filed after
the parents’ reunification services have been terminated, in assessing
whether the petition has made the required prima facie showing, the court must
be mindful that “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] .…â€
(In re Stephanie M. (1994) 7
Cal.4th 295, 317 (Stephanie M.).)
Having reviewed mother’s arguments
on appeal, and her section 388 petition, we are not persuaded the juvenile
court abused its discretion in summarily denying the petition without a
hearing. Mother failed to make a prima
facie showing there had been a genuine change of circumstances undermining the
substance of the court’s prior orders.
Reunification services were terminated in D.’s case and denied in
Rebecca’s case based on evidence that, despite her ongoing participation in
counseling and other services, mother continued to engage in inappropriate
behaviors during visits with the children.
The destabilizing effect mother’s behaviors had on the children was well
documented throughout the dependency proceedings. However, mother’s petition failed to take any
responsibility for these behaviors, let alone show she had made any changes
ameliorating them. Instead, she
portrayed herself as a victim who always tried to do what was best for her
children, not recognizing her own role in the children’s dependencies.
Mother’s declaration thus reflected a persistent lack of insight into
her emotionally harmful behaviors and failed to show she had made any
meaningful progress that would justify modifying the court’s prior orders.
Moreover, all but two of the
numerous attachments to mother’s petition—i.e. declarations supporting mother,
therapist and psychologist reports, and family law documents—existed at the
time she filed her first section 388 petition in April 2012, and therefore did
not constitute new evidence or changed circumstances in support of her August
2012 petition at issue here. The two
most recent documents were emails written by relatives of mother expressing an
interest in having the children placed with them. However, mother presented no evidence showing
that removing the children from their current stable placements and placing
them with either their aunt in Cheyenne, Wyoming or great uncle in Sacramento
would be in the children’s best interests.
Given mother’s failure to meet the threshold requirements for a hearing
on her section 388 petition for modification, we find no abuse of discretion in
the juvenile court’s summary denial of the petition.
II. Beneficial parent/child relationship
At the section 366.26 hearing,
mother’s attorney argued that termination of parental rights would be
detrimental to Rebecca based on the strong relationships she had with mother
and D. On appeal, mother contends the
juvenile court erred by failing to apply the beneficial parent/child
relationship exception to preclude termination of her parental rights. Mother asserts she regularly visited and
occupied a parental role towards Rebecca, who had a loving, positive,
beneficial relationship with her. She
further asserts Rebecca would suffer detriment if parental rights were
terminated.
The purpose of a section 366.26 hearing is to select and
implement a permanent plan for the dependent child. (In re S.B. (2009) 46 Cal.4th 529,
532.) The Legislature’s preferred
permanent plan is adoption. (In re
D.M. (2012) 205 Cal.App.4th 283, 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).
[Citation.]†(Id. at p. 290.)
In this case, mother does not dispute that Rebecca is adoptable; she
contends the parent/child relationship exception applies. (§ 366.26, subd. (c)(1)(B)(i).)
To avoid termination of parental rights under the
parent/child relationship exception, the juvenile court must find “a compelling
reason for determining that termination would be detrimental to the child†due
to the circumstance that “[t]he parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the
relationship.†(§ 366.26, subd.
(c)(1)(B)(i).) It is the parent’s burden
to prove the exception applies. (In
re Autumn H. (1994) 27
Cal.App.4th 567, 574 (Autumn H.).)
The Court of Appeal in Autumn H. defined a beneficial parent/child relationship
as one 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.†(Autumn H., supra,
27 Cal.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.†(Ibid.)
A parent must show more than frequent and loving contact or
pleasant visits for the exception to apply.
(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 (I.W.).) “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.)
There is a split of authority concerning the standard of
review in this context. (See In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314–1315 (Bailey J.) and In re K.P. (2012) 203 Cal.App.4th 614, 621–622
[hybrid combination of substantial evidence and abuse of discretion standards;
applying substantial evidence test to determination of the existence of a
beneficial sibling relationship and the abuse of discretion test to issue of
whether that relationship constitutes a compelling reason for determining that
termination would be detrimental to the child]; Autumn H., supra, 27 Cal.App.4th at p.
576 [substantial evidence test—“On review of the sufficiency of the evidence,
we presume in favor of the order, considering the evidence in the light most
favorable to the prevailing party, giving the prevailing party the benefit of
every reasonable inference and resolving all conflicts in support of the
order.â€]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (
Our conclusion in this case would be the same under any of
these tests because the practical differences between the standards are “not
significant,†as they all give deference to the juvenile court’s judgment. (See Jasmine D., supra, 78 Cal.App.4th
at p. 1351.) “‘[E]valuating the
factual basis for an exercise of discretion is similar to analyzing the
sufficiency of the evidence for the ruling....
Broad deference must be shown to the trial judge. The reviewing court should interfere only
“‘if [it] find[s] that under all the evidence, viewed most favorably in support
of the trial court’s action, no judge could reasonably have made the order that
he [or she] did.’ ... â€â€™ [Citation.]†(Ibid.) Moreover, a substantial evidence challenge to
the juvenile court’s failure to find a beneficial relationship cannot succeed
unless the undisputed facts establish the existence of a beneficial parental
relationship, since such a challenge amounts to a contention that the “undisputed
facts lead to only one conclusion.†(
Cal.App.4th at p. 1314.)
In this case, it is undisputed mother maintained regular
visitation and contact with Rebecca.
Mother, however, did not meet her burden of proving that Rebecca would
benefit from continuing her relationship with her, as she had not shown that
relationship promoted Rebecca’s well-being to such a degree that it outweighed
the well-being she would gain in a permanent home with new adoptive parents.
The evidence showed Rebecca was bonded to mother and enjoyed
visits with her. But visits also had a
negative effect on her. Rebecca’s
anxiety increased and her behavior worsened after visits with mother. Mother also continued to engage in controlling and
manipulative behaviors. The CASA report
prepared for the section 366.26 hearing described a recent visit in which
mother convinced Rebecca she needed immediate medical attention for nonexistent
sores on her body.
name="_ftnref4" title="">[4]
In another visit, after questioning Rebecca about being dirty, mother
filed an unfounded complaint again the foster parents claiming their home was
filthy and they were not allowing Rebecca to shower. These interactions suggest mother misused the
visits and her ability to influence Rebecca to raise false doubts regarding the
quality of care Rebecca was receiving from her foster family. Thus, the evidence indicated Rebecca’s
attachment to mother was a troubled and not a positive one.
In contrast, there was evidence
showing Rebecca was thriving in her placement with her prospective adoptive
parents. She was strongly bonded to
them, referring to them as mom and dad, and she viewed their daughters as her
sisters. Moreover, Rebecca did not ask
to see her parents or show any distress when parental visits ended. Given
the emotional problems Rebecca was having following visits with mother and the
stability she experienced while in her foster family’s care, the juvenile court
reasonably could find Rebecca’s need for permanence outweighed the benefits she
would derive from a continued relationship with mother. It also could find that severing Rebecca’s
relationship with mother would not deprive her of a substantial, positive
emotional attachment that would greatly harm her.
sibling relationship exception
court erred in failing to apply the beneficial sibling relationship exception
to termination of parental rights. She
asserts Rebecca and D., who had spent most of their lives together, shared a
strong sibling bond, and ongoing contact between them was in Rebecca’s best
interests.
legal principles
The sibling relationship exception
to terminating parental rights applies when the juvenile court finds there is a
compelling reason for determining termination would be detrimental to the child
because it would substantially interfere with that child’s sibling
relationship. (§ 366.26, subd.
(c)(1)(B)(v).) Factors to be considered
include the nature and extent of the relationship, whether the child was raised
with a sibling in the same home and whether the child has a strong bond with a
sibling. The court must also consider
whether ongoing contact is in the child’s best interests, including the child’s
long-term emotional interest, as compared to the benefit of legal permanence
through adoption. (Ibid.) The purpose of this
exception is to preserve long-standing sibling relationships that “serve as
anchors for dependent children whose lives are in turmoil.†(In re
Erik P. (2002) 104 Cal.App.4th 395, 404.)
“The sibling relationship exception
contains strong language creating a heavy burden for the party opposing
adoption.†(In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) Similar to the beneficial parent/child relationship
exception of section 366.26, subdivision (c)(1)(B)(i), application of the
sibling relationship exception requires a balancing of interests. (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 951.)
The parent must first show (1) the existence of a significant sibling
relationship; (2) terminating parental rights would substantially interfere
with that relationship; and (3) it would be detrimental to the child if the
relationship ended. (
is so strong that its severance would be detrimental to the adoptive child, the
court then decides whether the benefit to the child of continuing the sibling
relationship outweighs the benefits of adoption. (Id.
at pp. 952–953; In re Naomi P. (2005)
132 Cal.App.4th 808, 823.)
Rebecca may have had a bond with D.,
shared a home with her, and had common experiences with her. To establish the sibling relationship
exception, however, mother was required to establish severing the sibling relationship
would cause Rebecca detriment. Here,
there is no evidence that Rebecca would suffer detriment if her relationship
with D. were severed. The children were
separated in January 2012, after Rebecca disclosed she had been sexually abused
by D. After they were placed in separate
foster homes, Rebecca continued to thrive.
She did not suffer any anxiety from being separated from D. or request
to have more frequent contact with her.
Indeed, multiple reports reflected that visits with D. were stressful
and anxiety-provoking for Rebecca and had adverse effects on her behavior. Given evidence of the
negative effect sibling visits had on Rebecca and Rebecca’s need for stability
and permanence, we cannot conclude that the juvenile court erred in failing to
apply the beneficial sibling relationship exception to termination of parental
rights.
IV. Termination of visitation
Finally, mother contends the
juvenile court’s blanket no-contact and no-visitation order as to D. was an
abuse of discretion because the evidence did “not support the court’s finding
that even limited visitation would be detrimental to the child.†Mother acknowledges D. had “a conflicted
relationship†with her, and that “the evidence supports a finding of some
detriment from certain aspects of their contacts.†But mother argues it was unfair to D. for the
court to cut off all contact because the evidence showed continuing a
relationship with mother was important to D.
Mother asserts D. was consistently happy to see her, was affectionate
towards and sought comfort from her, and, more than once, asked to live with or
have more visitation with her.
legal principles
Prior to permanency planning, during
reunification efforts, visitation generally must be as frequent as possible,
consistent with the well-being of the dependent child. (§ 362.1, subd.
(a)(1)(A).) When reunification services
are terminated and a permanency planning hearing set, the court must continue
to permit the parent to visit the child pending the hearing unless it finds
visitation would be detrimental to the child.
(§ 366.21, subd. (h).)
Moreover, where the juvenile court has selected a permanent plan of
either guardianship or long-term foster care for the dependent child, it must
order visitation with the parent unless the court finds by a preponderance of
the evidence that visitation would be detrimental to the child. (§ 366.26, subd. (c)(4)(C); Cal. Rules
of Court, rule 5.725(d)(7)(E); In re
Randalynne G. (2002) 97 Cal.App.4th 1156, 1163.) Consequently, upon a finding
of detriment, the juvenile court is empowered to terminate visitation between a
parent and child.
The power
to regulate visitation between parents and dependent minors rests with the
court. (In re S.H. (2011) 197 Cal.App.4th 1542, 1557–1558.) The juvenile court has great discretion in
deciding visitation issues and we will not disturb the juvenile court’s
decision absent an abuse of discretion.
(Stephanie M., supra, 7
Cal.4th at p. 318.)
Mother’s argument on appeal
minimizes the troubled nature of her relationship with D. As in the case of her sister Rebecca, the
record is replete with evidence that visits with mother had a destabilizing
effect on D. Despite prior attempts by
the juvenile court to minimize this effect, including by decreasing the
frequency of visitation and ordering visitation in a therapeutic setting,
mother continued to engage in inappropriate behavior, exploiting D.’s
psychological fragility and need for mother’s approval. There was evidence this behavior created unnecessary
divisions between D. and her foster parents, who by all accounts, had provided
D. with a high degree of stability hitherto missing in her life.
D. was always eager to return to her
foster parents and did not cry when visits with mother ended. At the same time, following visits with
mother, D. would exhibit severe temper tantrums and difficulty following
established house rules. In light of
evidence that visits with mother triggered D.’s emotional problems, as well as
evidence of mother’s ongoing inability to conform her own behavior to
appropriate standards, the juvenile court did not abuse its discretion in
finding visitation with mother would be detrimental to D. or by terminating all
contact between them.
DISPOSITION
The
juvenile court’s orders issued on October 22, 2012, are affirmed.
| Description | L.K. (mother) appeals juvenile court orders summarily denying her petition for modification under Welfare and Institutions Code[1] section 388, and terminating her parental rights to her daughter, Rebecca S., and establishing a legal guardianship for her daughter, D.S., under section 366.26. Mother contends the court erred by summarily denying her modification petition, by which she sought to have her daughters returned to her custody or to have reunification services reinstated. She also contends the court erred by failing to find the beneficial parent/child relationship and beneficial sibling relationship exceptions to adoption applied to preclude termination of her parental rights to Rebecca. Finally, she contends the court erred by terminating visitation with D. We affirm the orders. |
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