In re Kaitlyn S.
Filed 9/3/13 In re Kaitlyn S. CA2/2
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re KAITLYN S., a Person
Coming Under the Juvenile Court Law.
B246932
(Los Angeles
County
Super. Ct.
No. CK86460)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LISA G.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court
of
County.
Amy M. Pellman, Judge.
Affirmed.
Christy C.
Peterson, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, Terry T. Truong, Deputy County
Counsel, for Plaintiff and Respondent.
___________________________________________________
>
Lisa G.
(Mother) appeals from the dependency court’s summary denial of her Welfare and
Institutions Code section 300 petition
rights. Because we find that the court
did not abuse its discretion in denying the petition and that
terminating parental rights, we affirm.
FACTS
Kaitlyn S.
was born in June 2003. On February 8, 2011, the
(DCFS) filed a section 300 petition alleging that Mother and Brian S.,
Kaitlyn’s father (Father), had a history of domestic violence, that Mother
abused methamphetamine and alcohol, and that father abused alcohol. Further, the petition alleged that in
September 2010, Kaitlyn’s home was found in an unsanitary and hazardous
condition.
The
detention report noted that the family was initially referred to DCFS in August
2010. The referral stated that the
family’s home had no electricity, gas, or food.
Both parents drank alcohol daily and Mother used “speed.†The parents often screamed at each other and
engaged in a physical altercation in the presence of Kaitlyn. In September 2010, Mother was arrested for
failure to protect after police investigating the home found a dead mouse,
animal feces, and rotten food.
A voluntary
family maintenance plan was signed by the parents in December 2010, but neither
parent complied with the plan. Both
failed to attend agreed-upon treatment and classes, and both disregarded a
restraining order whereby Mother was not to have contact with Kaitlyn from 7:00 p.m. to 7:00
a.m. daily. Kaitlyn had been
forced to repeat first grade due to poor attendance. When questioned, both parents blamed Kaitlyn
for her school-related problems, stating that she did not respond to their
prompting in the morning.
On February 8, 2011, Kaitlyn was detained
and placed in DCFS custody. She was soon
after placed with a nonrelated extended family member, Gina C. A subsequent report noted that Kaitlyn was a
special education student who was shy and reserved and presented a flat affect
with no emotion. Mother was regularly
visiting Kaitlyn at Gina C.’s home and the monitored visitations were
going well.
In March
2011, the dependency court ordered that mother participate in reunification
services, including parenting, domestic violence, and alcohol counseling, with
random testing. Monitored visitation was
to be allowed three times a week.
A September
2011 status review report found that Mother was not in compliance with her
domestic violence counseling or parenting education requirements. Mother had been enrolled in an outpatient
substance abuse program, which included a domestic violence component, but she
was terminated from the program in April 2011 due to a lack of attendance and
participation. She tested positive for
methamphetamine once during the program.
Furthermore, from March 2011 to August 2011, Mother was scheduled to
test for DCFS on 12 occasions. She
failed to appear for testing eight times, was unable to provide a urine sample
once, tested negative two times, and tested positive for alcohol once.
The
September report also noted that Mother had participated in weekly monitored
visits. The visitations were initially
scheduled to occur at Gina C.’s home, but Gina C. reported several incidents
where Mother was hostile and argumentative, so monitored visits were moved to
the DCFS office. In visits at the
office, Mother made significant efforts to act appropriately, and she engaged
in age-appropriate activities with Kaitlyn.
Kaitlyn responded well to the visits and became upset when scheduling
conflicts prevented them from happening.
At the
September 2011 hearing, the dependency court ordered DCFS to assess the suitability
of the paternal grandparents, who lived in Washington,
for placement. The grandparents stated
they would be willing to provide guardianship for Kaitlyn, and Kaitlyn stated
that she would like to live with her grandparents if she was unable to live with
her parents.
At a
continued hearing in November 2011, DCFS reported that Mother had missed two
random drug tests. The court found that
Mother was in partial compliance with the case plan and ordered that
reunification services continue.
The
paternal grandparents requested the opportunity to host Kaitlyn at their home
in Washington over the 2011
Christmas break. A home inspection was
completed, and the home was found to be appropriate and able to accommodate
Kaitlyn. The dependency court granted
the request.
A May 2012
status review report stated that Mother had been arrested and incarcerated in
January 2012 for accessory to murder; her boyfriend at the time had also been
arrested for accessory to murder. Mother
posted bail in May 2012. Mother was not
in compliance with her reunification services programs, though she had
participated in domestic violence counseling, parenting education, and alcohol
treatment while in jail. She had
continued to participate in monitored visitation with Kaitlyn, seeing her
approximately every other week before her arrest, and seeing her twice in jail
after her arrest. Kaitlyn reported that
she felt comfortable and enjoyed the visits with Mother. Mother also wrote letters to Kaitlyn and
talked to her on the phone.
Kaitlyn was
functioning at grade level in school and no longer needed special
education. She continued to live with
Gina C., but was having difficulty with Gina C.’s own daughter. Gina C. stated that she did not wish to act
as permanent caretaker for Kaitlyn.
Kaitlyn’s paternal grandparents, however, indicated that they were
willing to adopt Kaitlyn.
In June
2012, Gina C. informed DCFS that she was willing to continue caring for Kaitlyn
only if there were no appropriate relatives for placement. Later that month, the home study of the
paternal grandparents was approved.
Kaitlyn stated, however, that she did not want to live in Washington,
where her paternal grandparents lived, because she wanted to remain in California
in hopes that she could return home to live with Mother or Father. DCFS determined that it was in Kaitlyn’s best
interest to be placed with her grandparents, as they were prepared to adopt
her, and her placement with Gina was tenuous.
In July 2012, the dependency court terminated reunification services and
set a section 366.26 hearing. It also
ordered that Kaitlyn be placed with her grandparents in Washington.
An October
2012 DCFS report stated that Kaitlyn was placed in her paternal grandparents’
home in July 2012 and had adjusted well to her new family and new
environment. The grandparents had been a
part of Kaitlyn’s life since she was born.
She enjoyed living with them and said she wanted to be adopted by them,
though she continued to speak to Mother by telephone approximately three times
a week. The grandparents said that they
were committed to letting Kaitlyn maintain a relationship with Mother, as long
as it was in Kaitlyn’s best interest.
The
contested section 366.26 hearing was set for December 10, 2012.
That day, prior to the hearing, Mother filed a section 388 petition,
asking the court to either continue reunification services or order a permanent
plan of legal guardianship instead of adoption.
Mother contended that she had turned her life around and gotten serious
about her sobriety. She attached a
letter from a residential facility for homeless, addicted women, indicating
that she had been enrolled since September
13, 2012, and was actively participating in various classes and
counseling and randomly testing negative for drugs and alcohol. She also attached a log of phone calls with
Kaitlyn from September 16, 2012, to December 10, 2012, showing that she talked
to Kaitlyn 11 times in the latter half of September, 16 times in October, 21
times in November, and seven times in the first part of December. The dependency court denied Mother’s section
388 request without a hearing, noting that Mother had been given many months of
family reunification services, and that “changing circumstances at the 11th
hour†were insufficient to change the previous order.
In
connection with the section 366.26 hearing, Kaitlyn testified by
telephone. She stated that she spoke to
Mother nearly every night about her day, about how she was doing, and about
problems she had. Kaitlyn understood the
meaning of adoption. She said that she
wanted Mother to remain her “mommy†and her grandmother to remain her
“grandma,†and said that she wanted to be with Mother.
Mother
testified next. She said that she and
Kaitlyn would talk about school, friends, homework, gymnastics, Girl Scouts,
and friends. Mother testified that
Kaitlyn was her “life.†Mother believed
that Kaitlyn could be emotionally damaged if she were adopted.
Kaitlyn’s
attorney recommended that the court decline to terminate parental rights and
instead order a permanent plan of legal guardianship. Mother’s attorney also argued that parental
rights should not be terminated and likewise requested that the court order a
legal guardianship.
After
hearing argument, the trial court terminated Mother’s parental rights. The court found that the evidence showed
nothing more than a “friendly, loving relationship†between Kaitlyn and Mother,
and found that the evidence did not show the “longevity†or “consistency†of a
parent-child relationship.
Mother
timely appealed.
DISCUSSION
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 modification would be in the child’s best interests. (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 526-527 & fn. 5.) This is a two-part requirement. “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.†(In re
Anthony W. (2001) 87 Cal.App.4th 246, 250.)
The parent seeking the modification bears the burden of making both
showings. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
“If it
appears that the best interests of the child may be promoted by the proposed
change of order, . . . the court shall order that a hearing be held and shall
give prior notice . . . .â€
(§ 388, subd. (d).) “Section 388
thus gives the court two choices: (1)
summarily deny the petition or (2) hold a hearing.†(In re
Lesly G. (2008) 162 Cal.App.4th 904, 912.)
To compel a hearing, the petitioner must make a “prima facie†showing of
“facts which will sustain a favorable decision if the evidence submitted in
support of the allegations by the petitioner is credited.†(In re
Edward H. (1996) 43 Cal.App.4th 584, 593.)
The trial court may deny a section 388 petition ex parte if the petition
“fails to state a change of circumstance or new evidence that may require a
change of order . . . or, that the requested modification would promote the
best interest of the child.†(Cal. Rules
of Court, rule 5.570(d)(1).)
Summary
denial of a section 388 petition is reviewed for an abuse of discretion. (In re
Angel B. (2002) 97 Cal.App.4th 454, 460.)
“[‘]“The appropriate test for abuse of discretion is whether the trial
court exceeded the bounds of reason.
When two or more inferences can reasonably be deduced from the facts,
the reviewing court has no authority to substitute its decision for that of the
trial court.â€â€™â€ (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “The denial of a section 388 motion rarely
merits reversal as an abuse of discretion.â€
(In re Amber M. (2002) 103
Cal.App.4th 681, 685-686.)
We find
that the dependency court did not abuse its discretion in denying Mother’s
section 388 petition without a hearing.
Relying on In re Angel B.,
argues that she presented evidence that a hearing on her section 388 petition
would promote the best interests of Kaitlyn, and the trial court therefore
erred by denying the section 388 petition ex parte. We disagree.
In re Angel B. involved the
summary denial of a section 388 petition on facts similar to those presented
here. In In re Angel B. the mother presented evidence that she had entered a
residential drug rehabilitation program,
had consistently tested negative for drugs and alcohol while in the program,
had completed parenting classes and other classes, was participating in
counseling, and had consistently visited with her child. Nevertheless, the Court of Appeal found that
the trial court did not abuse its discretion by denying the petition without a
hearing, noting the lack of evidence that the mother was ready to assume
custody or provide suitable care or housing for the child, and the brief
duration of the mother’s sobriety compared to many years of addiction. (Id.
at p. 463.)
Here,
Mother’s active participation in the residential facility for homeless,
addicted women and her apparent desire to refrain from using alcohol or drugs
were commendable. But these efforts came
months after reunification services had been terminated, when “the focus of the
dependency proceedings had shifted from
reunification to the child’s need for a stable and permanent home.†(In re
Casey D., supra, 70 Cal.App.4th
at p. 48.) Although Mother appeared to
be doing very well in her inpatient program, this brief period (of
approximately three months) followed an extended period of extreme turbulence
not conducive to the care of a child.
During the reunification services period, Mother missed a great number
of drug/alcohol tests, and tested positive for methamphetamine and
alcohol. Her attendance at the various
court-ordered programs was erratic, and she was arrested. Given Mother’s history, the dependency court
did not err in finding that several months in an inpatient program were
insufficient to support a change in circumstances. (See In
re Mary G. (2007) 151 Cal.App.4th 184, 205-206 [finding a failure to show
changed circumstances; appellant’s three-month sobriety following years of drug
abuse was “not particularly compellingâ€].)
As stated
in In re Debra M. (1987) 189
Cal.App.3d 1032, 1038, “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.†Mother was granted a year and a
half of reunification services after she failed to abide by a voluntary family
maintenance plan. She did not take
advantage of this opportunity. As of
December 2012, she finally appeared to be making efforts to improve on the
conditions that led to the initiation of the dependency proceedings, but she
never demonstrated an ability to care for Kaitlyn. “A petition which alleges merely changing
circumstances and would mean delaying the selection of a permanent home for a child
to see if a parent, who has repeatedly failed to reunify with the child, might
be able to reunify at some future point, does not promote stability for the
child or the child’s best interests.†(
Thus, the dependency court did not abuse its discretion by summarily
denying Mother’s section 388 petition.
II. Termination of Parental Rights
On appeal
of an order terminating parental rights, we determine if there is any
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; In re Brison C. (2000) 81 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.)
Mother
contends that the dependency court erred because it did not rule in her favor
pursuant to the “beneficial relationship exception†found at section 366.26,
subdivision (c)(1)(B)(i), which applies when “[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from
continuing the relationship.†Mother
bears the burden of showing that this statutory exception applies, and that
termination would be detrimental to the child.
(In re Derek W.,
re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) A parent who wishes to invoke the beneficial
relationship exception must show that “the relationship promotes the well-being
of the child to such a degree as to outweigh the well-being the child would
gain in a permanent home with new, adoptive parents. In 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.†(In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
The
dependency court found that Mother’s visitation was not consistent, a finding
that is supported by substantial evidence.
Although Mother maintained consistent contact by telephone with Kaitlyn,
especially in the months directly preceding the contested section 366.26
hearing, actual visitation was inconsistent.
This inconsistency was in large part due to Mother’s failure to engage
in reunification services. Had Mother
actively participated in reunification services, she likely would have been
able to have more regular visitation with Kaitlyn and been granted unmonitored
visits. The beneficial relationship
exception is not a means for a parent to avoid the consequences of having
failed to reunify. (See
1339, 1348.)
Furthermore,
the court’s finding that Mother and Kaitlyn had a “friendly, loving
relationship†but not a “parent-child relationship†was also supported by
substantial evidence. Mother did not
demonstrate the ability to provide Kaitlyn with the security and care necessary
for Kaitlyn to develop in a positive way.
When Kaitlyn was removed from Mother’s custody, she lived in a house
that had been without electricity, gas, and food; she was in the middle of
repeating first grade; she had a continuing poor record of attendance at
school; she was receiving special education; and she was a candidate for
psychological counseling. By the time of
the section 366.26 hearing, her grades and attendance had improved tremendously,
she no longer needed special education or counseling, and she was in a loving
and comfortable home. Kaitlyn clearly
benefited from living with the grandparents.
Mother did not provide evidence that her relationship with Kaitlyn
promoted Kaitlyn’s well-being to such a degree as to outweigh the well-being
that Kaitlyn would experience by being adopted by her grandparents.
It is clear
that Mother loves Kaitlyn, and that Kaitlyn loves Mother. But sufficient evidence supported the
conclusion that termination of parental rights was proper. “DCFS is not
required to produce evidence demonstrating that a minor would
contact. [Citation.] [¶] To
overcome the preference for adoption and avoid termination of the natural parent’s
rights, the parent must show that severing the natural parent-child
relationship would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly harmed.
[Citations.] A biological parent
who has failed to reunify with an adoptable child may not derail an adoption
merely by showing the child would derive some
benefit from continuing a relationship maintained during periods of visitation
with the parent. [Citation.] A child who has been adjudged a dependent of
the juvenile court should not be deprived of an adoptive parent when the
natural parent has maintained a relationship that may be beneficial to some
degree, but that does not meet the child’s need for a parent.†(In re
Angel B., supra, 97 Cal.App.4th
at p. 466, original italics.) Mother did
not show that she met Kaitlyn’s need for a parent, and termination of parental
rights was therefore warranted.
The judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
CHAVEZ, J.
FERNS, J.*
_______________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6
of the California Constitution.
otherwise noted, all further statutory references are to the Welfare and
Institutions Code.
