In re J.T.
Filed 8/20/12 In re J.T. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
In re J.T., a Person Coming
Under the Juvenile Court Law.
B239641
(Los Angeles
County
Super. Ct.
No. CK53500)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
GLORIA T.,
Defendant and Appellant.
APPEAL from
a judgment and order of the Superior Court
of
County. Anthony Trendacosta, Juvenile Court
Referee. Affirmed.
Lori
Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Emery El
Habiby, Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________________
Gloria T. (Mother) appeals orders from the
Institutions Code section 388 petition
J.T., for more than five years, and she only attempted to establish a
relationship with him long after he had come to regard his legal guardian as
his mother.
The dependency court did not err in
denying Mother’s section 388 petition, and the termination of parental rights
was proper. Accordingly, we affirm.
FACTS
Detention and
guardianship
J.T. was
born in September 2003. The
(DCFS) received a referral soon after his birth alleging that Mother appeared
to be disconnected from J.T. and unable to care for him. Mother had been diagnosed with a psychotic
disorder. She was allowed to bring J.T.
home, but she soon after contacted DCFS, stating that she was unable to care
for him. When the caseworker arrived at
Mother’s home, she determined that J.T. should be detained, but Mother
resisted, forcing the caseworker to call law enforcement. Mother then barricaded herself in her home,
causing a four-hour standoff. After
Mother was finally persuaded to let the caseworker reenter, J.T. was detained.
At the
J.T. was a child described by section 300, subdivision (b) and ordered him
detained from Mother. DCFS was ordered
to provide family reunification services to Mother, and J.T. was placed with
Mother’s cousin, Annette T.
The
dependency court sustained a section 300 petition in February 2004, finding
that there was no reasonable means to protect J.T. without removal from
Mother’s physical custody. At the
section 366.21, subdivision (e) hearing in May 2004, Mother was reported to be
visiting J.T. inconsistently and she seemed distracted. Mother’s family reunification services were
terminated at the section 366.21, subdivision (f) hearing in December 2004
because she was not in compliance with her case plan. Meanwhile, J.T. was thriving in the care of
Annette T. and called her “mama.”
An April
2005 section 366.26 report noted that Mother had not visited J.T. in the past
six months. Annette T. had been J.T.’s
caretaker since October 2003 and continued to take good care of him.
Annette T.
was appointed J.T.’s legal guardian in January 2006. The dependency court found that termination
of parental rights would be detrimental, however, because Annette T. was unable
or unwilling to adopt J.T. because of exceptional circumstances. In February 2006, jurisdiction was terminated
with directions that Kin-Gap (Kinship Guardianship Assistance Payments) funding
remain in place. In May 2006, Mother
filed a section 388 petition, explaining that the amount of funding was
substantially reduced when jurisdiction was terminated. She requested that the dependency court
reopen jurisdiction so that Annette T., as J.T.’s guardian, could receive
specialized funding. The court granted
Mother’s petition, and jurisdiction was reinstated.
Renewed visitation
Mother did
not visit J.T. for over five years.
Annette T. had provided J.T. with a nurturing home and he thought of her
as his mother. Annette T. would not
agree to termination of court jurisdiction, however, because she feared J.T.
would lose benefits and services without court supervision.
Then, in
July 2010, Mother appeared in court, requesting visitation with J.T. She was married and living in Arkansas
with a new husband and four-year-old son.
Mother stated that she wished to regain custody of J.T. Minor’s counsel objected to visitation,
arguing that J.T. did not know Mother, and that he knew Annette T. as his mother. The court denied Mother’s visitation request
and scheduled a section 366.26 hearing, and it further ordered that nobody
discuss with J.T. who his biological mother was.
Mother was
allowed to visit J.T. twice in the following months. During one visit she violated the court’s
order by giving J.T. a photo of herself and her younger child, on which she had
written “your mother and brother.”
In November
2010, a hearing was held, at which the dependency court ordered DCFS to discuss
with Mother that she was not to reveal her biological relationship with
J.T. The court found that Annette T. was
not interested in adoption. Mother was
granted monitored visits with J.T., so long as she brought no one else along.
Mother
filed a section 388 petition in May 2011, challenging the court’s order
terminating her family reunification
services and selecting legal guardianship as the permanent plant for
J.T. Mother claimed her circumstances
had changed because she completed a parenting class, received counseling
services, and had a safe and stable home.
Mother believed it would be in J.T.’s best interest to have a
relationship with his younger half brother and for them to live together as a
family.
From the
period of February to May 2011, Mother met with J.T. in person only four times,
and had telephone contact with him about once a week. J.T. continued to identify Annette T. as his
mother and said, “I love my mommy. She
is good to me and this is my home.”
The
dependency court denied Mother’s section 388 petition in July 2011. The court found that while it appeared Mother
had addressed her stability issues and was a good parent to her young child,
the focus was on what was best for J.T.
J.T. had lived with Annette T. since soon after birth, he identified her
as his mother, he was thriving in her home, and he was doing very well in
school. The court found that, even
assuming that there had been changed circumstances, restarting reunification
services was improper because it was not in J.T.’s best interest.
In
September 2011, Mother’s therapist submitted a letter to the court stating that
Mother had completed eight individual therapy sessions and nine family therapy
sessions. A psychiatric evaluation
indicated no findings that she had any current mental health issues. Although her overall intellectual functioning
was below average, she was able to make decisions effectively.
Mother
continued to receive monitored visits with J.T.
She would make weekly, 30-minute telephone calls to him, during which
she would talk to J.T. for five minutes and then allow her younger son to speak
the remainder of the time. On several
occasions, the caseworker attempted to terminate the call prior to the end of
the 30-minute period, but Mother’s husband became belligerent on the telephone
and yelled at the caseworker. Mother
also received monthly two-hour visits with J.T. at the DCFS office. During visits, J.T. would run around and play
with Mother’s younger son. Mother made
minimal contact with J.T., instead spending most of her time monitoring her
younger son. Mother and J.T. did not
appear to bond during the visits.
Section 366.26
hearing
On January 23, 2012, the date of the scheduled
section 366.26 hearing, Mother filed another section 388 petition, seeking to
terminate the order of legal guardianship for J.T. and return him to her
custody. She further requested family
reunification services and unmonitored visits.
She maintained that she was bonded with J.T., and that J.T. was bonded
with his half brother. She stated that
she had finished two parenting classes and was in therapy, and that she was a
stable parent.
At the
hearing, Mother requested a continuance to obtain a bonding study of Mother and
J.T., and also of J.T. and Mother’s two other children (she had recently given
birth to another child). Mother stated
that she wished to examine J.T., but that he was not present in court. She also wanted to cross-examine the
caseworker and Annette T., but neither of them were present.
The
dependency court denied Mother’s continuance request, finding that Mother’s
section 388 petition was untimely, and even if it was timely, that it was not
in J.T.’s best interest. Furthermore, a
bonding study was not appropriate because it would not assist the trier of
fact.
The court
inquired whether J.T. was adoptable.
Mother’s counsel argued that Annette T. had previously stated she did
not want to adopt J.T. Minor’s counsel
responded that although Annette T. had not originally intended to adopt, she
had since become committed to adoption and had worked with the adoption social
worker to complete a home study.
Mother
testified at the hearing that she had completed two parenting classes, and that
she continued to go to individual and family counseling. She stated that J.T. got along and played
well with his five-year-old half brother.
When Mother visited with J.T. he would come to her and give her hugs,
and he would not want to leave her when their visits finished.
After
hearing argument, the dependency court noted that it had heard a section 388
petition in July of the previous year; the court found that that there had been
no change in circumstances since that time.
The court further stated that even if the issues Mother tried to raise
had been raised in the original section 388 petition, they would not have
mattered, because J.T. had been raised for essentially all of his life by
Annette T., whom he knew as his mother.
After all of that time, it was not in J.T.’s best interest to switch his
parental relationship. The court found
that adoption was the most secure, safe, and stable plan for J.T. It further found that there was no compelling
reason not to terminate parental rights, and that any detriment to J.T. from
severing the relationship with his half brother would be speculative. The court thereupon found J.T. adoptable and
terminated parental rights.
Mother
thereafter filed an appeal of the order denying her January 2012 section 388
petition and terminating her parental rights.
I. Denial of Section 388
Petition
Under
section 388, the dependency court has discretion to modify a previously made
order if circumstances have changed such that it would be in the child’s best
interests to modify the order. (
519, 526-527 & fn. 5.) This is a
two-part requirement. It is not enough
to show merely a change in circumstances; the petition must also show that
modification of the order would be in the best interests of the child. (Id.
at p. 529.) The parent seeking the
modification bears the burden of making both showings. (In re
Casey D. (1999) 70 Cal.App.4th 38, 47.)
A. No denial of due process
Mother
first argues that the dependency court denied Mother her due process rights
when it refused to continue the hearing on the section 388 petition to allow
Mother time to secure witnesses for cross-examination. We review the denial of a continuance for an
abuse of discretion, keeping in mind that continuances in dependency
proceedings are disfavored. (
1626, 1635.)
Mother is
unable to demonstrate any abuse of discretion.
Mother offered no excuse at the hearing, and likewise offers no credible
reason on appeal, for why she did not seek to secure or identify witnesses
prior to the hearing on her section 388 petition. Mother had filed an essentially identical
section 388 petition approximately six months earlier, and at that time she
could have sought to call witnesses.
Certainly, by the time of her second section 388 petition, she should
have been prepared to conduct a hearing with live testimony if that is what she
intended.
Mother’s
argument also fails because the trial court correctly found that there had been
no change in circumstances. The
witnesses that Mother wanted to call—the caseworker, Annette T., and J.T.—all
may have had information relevant to whether it was in J.T.’s best interest to
terminate the legal guardianship and return J.T. to Mother’s custody, but there
is no indication that they would have provided any evidence showing that there
actually was a change in circumstances.
Since it was clear that Mother could not meet both prongs of a section
388 showing (see In re Kimberly F.,
continuance would have accomplished no worthy purpose.
The cases
cited by Mother do not assist her cause.
In In re Matthew P. (1999) 71
Cal.App.4th 841 and In re Clifton V.
(2001) 93 Cal.App.4th 1400, the appellants identified real disputes regarding
the credibility of witness statements.
Here, Mother has identified no real dispute—she simply contends that she
has a close relationship with J.T. which is not reflected in caseworker
reports. In any event, Mother identifies
no dispute relevant to whether the requirements of a section 388 petition were
met.
California
Rules of Court, rule 5.570(h) provides that proof at a section 388 hearing may
be made by declaration and other documentary evidence, or by testimony, at the
dependency court’s discretion. The trial
court did not abuse its discretion by declining to order live testimony and by
denying Mother’s request for a continuance.
B. Mother’s section 388 petition was properly
denied
Modification of a previously made order is within the
dependency court’s discretion. (
1698, 1704.) The appellate court will
not disturb the dependency court’s determination “unless an abuse of discretion
is clearly established.” (
Here, the
trial court properly found that there had been no change in circumstances, and
that it would not be in J.T.’s best interest to terminate the legal
guardianship and return J.T. to Mother’s custody. Mother’s briefs gloss over the fact that she
filed two separate section 388 petitions in relatively short order, and that
she appealed from only the second one.
It is possible that at the time the first section 388 petition was
filed, there had been a change in circumstances. Mother appeared to be more stable than she
had previously been, and she was taking good care of J.T.’s younger half
brother. But, since it was not appealed,
we are not concerned with the denial of the first section 388 petition. The trial court properly found that there was
no change in circumstances at the time of the second section 388 petition. The second petition was merely a rehash of
the first one. A section 388 petition
must be supported by a showing of a significant and genuine change in
circumstances. (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) Since the circumstances here were unchanged,
there was no basis to grant the second section 388 petition.
Even if
there had been a change in circumstances, however, the section 388 petition was
still severely lacking. Mother was
unable to show that terminating the legal guardianship and returning J.T. to
Mother’s custody was in J.T.’s best interest.
Mother disappeared from J.T.’s life for more than five years. Annette T. raised him from shortly after his
birth, and he thrived in her care. “The
reality is that childhood is brief; it does not wait while a parent
rehabilitates himself or herself. The
nurturing required must be given by someone, at the time the child needs it,
not when the parent is ready to give it.”
(In re Debra M. (1987) 189
Cal.App.3d 1032, 1038.) Annette T. consistently
showed that she was willing and able to give J.T. the nurturing he
required. J.T. considered Annette T. to
be his mother. Uprooting J.T. in January
2012, when he was eight years old and had known only one maternal figure his
entire life, clearly would not have been in his best interest.
II. Termination of Parental Rights
On appeal
of an order terminating parental rights, we determine if there is any
substantial evidence to support the conclusions of the dependency court. All conflicts are resolved in favor of the
prevailing party and all legitimate inferences are drawn to uphold the lower
court’s ruling. (In re Josue G. (2003) 106 Cal.App.4th 725, 732;
Cal.App.4th 1373, 1378-1379.) We cannot
reweigh the evidence or substitute our judgment for that of the trial
court. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774.)
At the
selection and implementation hearing under section 366.26, subject to certain
exceptions, the court must select adoption as the permanent plan and terminate
parental rights if it finds that the child is likely to be adopted. (§ 366.26, subd. (c)(1);
45, 49; In re Jamie R.,
plan preferred by the Legislature. (
Cal.App.4th 823, 826; In re Ronell A.
(1995) 44 Cal.App.4th 1352, 1368.) A
parent may avoid termination of parental rights by showing that termination
would be detrimental to the child. (
In her
appeal, Mother simply argues that the order terminating parental rights must be
reversed so that the matter may be remanded for a full rehearing on Mother’s
section 388 petition. Because we find
that the denial of Mother’s section 388 petition provides no grounds for
remand, there likewise is no basis to reverse the order terminating parental
rights.
The order denying Mother’s section 388 petition and the
judgment (order terminating parental rights) are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
DOI TODD, J.
ASHMANN-GERST, J.
otherwise noted, all further statutory references are to the Welfare and
Institutions Code.
