In re Kenneth F.
Filed 1/7/14 In re Kenneth
F. CA2/8
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In
re KENNETH F., a Person Coming Under the Juvenile Court Law.
B247819
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTINE
S.,
Defendant and Appellant.
(
Super. Ct. No. CK88892)
APPEAL
from an order of the Superior Court of Los
Angeles County. D. Zeke Zeidler,
Judge. Affirmed.
Eva
E. Chick, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M.
Owens, Assistant County Counsel, Melinda A. Green, Deputy County Counsel, for
Plaintiff and Respondent.
__________________________
Christina S.
(mother) appeals from an order terminating her
son, Kenneth F. Soon after the Los
Angeles Department of Children and Families (DCFS) detained Kenneth, he was
placed with his paternal grandmother. On
appeal, mother contends the trial court erred by failing to consider placing Kenneth
with his maternal relatives, and by failing to order DCFS to facilitate
visitation between Kenneth and maternal relatives after mother’s parental
rights were terminated. Mother also
argues DCFS failed to provide reasonable reunification
services to her while she was incarcerated.
Finally, mother contends the trial court erred in terminating her
beneficial parent-child relationship
exception to adoption applied. We find
no basis for reversal.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2011,
police executed a search warrant at the home where mother and four-year-old Kenneth
were living. During the search, a police
officer saw mother remove a glass pipe from her shirt. The pipe was of the kind used to smoke
methamphetamine. Police recovered
methamphetamines from the house, as well as several unspent rounds of
ammunition. Police informed DCFS that mother’s
family was associated with a gang and law enforcement had been to the house several
times for drug-related issues. Two
children of another woman living in the house told DCFS they had seen mother
using drugs. Father was
incarcerated. DCFS detained Kenneth.
Before the
detention hearing, a social worker spoke with Kenneth’s maternal grandmother
about placing him with her. The maternal
grandmother revealed she had a drug-related criminal charge that was resolved
the year before. She live-scanned and
requested that Kenneth be placed with her.
However, other adults living in her house did not live-scan before the
detention hearing. DCFS provided the
court with CLETS results for maternal grandmother and her husband. The CLETS report indicated maternal
grandmother had a long history of drug-related arrests, as well as drug-related
felony convictions in 2005 and 2010. A
CLETS report for maternal grandmother’s husband revealed multiple convictions
between 1981 and 2005.
At the detention
hearing, Kenneth’s counsel requested that the court order DCFS to conduct a
pre-release investigation for the paternal grandmother, who was present in
court. Mother did not make any requests
respecting her relatives.
As reflected in the
jurisdiction and disposition report, mother told DCFS maternal grandmother had
an ongoing substance abuse problem. Mother visited Kenneth regularly; they were
reportedly “close and bonded.†Immediately
prior to the scheduled August 17 jurisdiction hearing, DCFS filed a “last
minute information†informing the court that a paternal uncle expressed
interest in having Kenneth placed in his care, but neither he nor his family showed
up to be live-scanned. DCFS reported there
were no other relatives to consider. At
the August 17 hearing, father was not present.
Before continuing the proceedings, the court asked if any party objected
to Kenneth being detained with the paternal grandmother. There were no objections.
At the August 23 continued hearing, the
juvenile court asserted dependency jurisdiction over Kenneth. At disposition, father asked that Kenneth be
released to him and placed with the paternal grandmother. Mother asked that DCFS provide her with
referrals for recommended programs and transportation costs. She did not ask that her relatives be
considered for placement, or that DCFS facilitate visits with her
relatives. The court ordered suitable
placement with the paternal grandmother.
The court also ordered DCFS to provide mother with reunification
services, including visits with Kenneth.
In a February 2012 status review report,
DCFS reported mother had not submitted to drug and alcohol testing. Mother said she had enrolled in counseling
but she had no verification of enrollment. For a time, mother had visited Kenneth at the maternal
grandmother’s house. However, in January
2012, the paternal grandmother informed the social worker she was uncomfortable
with Kenneth having visits at the maternal grandmother’s home because she
suspected there was drug use taking place during the visits. The paternal grandmother reported that during
visits, the maternal grandparents would go into a bathroom together for long
periods of time, then emerge with a “funny smell.†The social worker changed the location of
visits and sent mother written letters informing her of the change. Mother did not respond or contact DCFS
regarding visits or other services. DCFS
reported it had not been able to establish contact with mother since December
2011.
Mother did not appear at the February 2012
review hearing, but was represented by counsel.
The court extended reunification services.
At the end of July 2012, the paternal
grandmother informed DCFS that mother was incarcerated. In an August 2012 status review report, DCFS again
indicated the agency had not had contact with mother since mid-December
2011. Mother had drug tested only once,
in June 2011, and had not provided any evidence showing she enrolled in any
form of counseling. DCFS reported mother
had sporadic visits at the maternal grandmother’s home. Mother was not present at the August 2012
review hearing. Her counsel made no
mention of mother’s incarceration. He stated
only that he had “no direction†from mother. The court terminated reunification services
and set a hearing pursuant to Welfare and Institutions Code section 366.26.
In the December 2012 section 366.26
report, DCFS reported mother had “initially†visited Kenneth at paternal
grandmother’s house. The visits were
frequent, albeit irregular. The paternal
grandmother reported the visits became increasingly sporadic beginning in early
2012. DCFS asserted mother had
“steadfastly ignored†the services social worker’s “efforts to solicit her
cooperation in establishing a regular visitation schedule and submitting to
on-demand drug/alcohol testing.†DCFS
explained that in January 2012, “mother cut off all contact with her family for
several months before her arrest, possibly as many as six.†DCFS further reported mother “dropped out of
sight†from February 2012 until mid-June 2012, when she “surfaced in the
custody of the L.A. County Sheriff’s Department.†A social worker subsequently visited mother
at a detention facility. Mother said she
had not complied with the court’s orders because she had a drug problem. DCFS also reported: “Apparently the rate of
mother’s visits dropped off after [maternal grandmother] told mother she would
have to contact DCFS to coordinate any future visits with Kenneth. For reasons that are currently unknown,
mother refused to do this, and she stopped her visits with Kenneth altogether.â€
According to DCFS, since she had been incarcerated,
mother had “made no known attempt to contact [Kenneth] by phone or mail . . .
.†The report indicated the paternal
grandmother wanted to adopt Kenneth and had been assessed for adoption. DCFS recommended that the permanent plan be
adoption by the paternal grandmother.
Mother was not present on the date
scheduled for the section 366.26 hearing.
Before the proceedings were continued, Kenneth’s counsel informed the
court that some maternal relatives were having visits with Kenneth, and some
were not. Counsel asked that the
maternal relatives be assessed for visitation.
The court ordered DCFS to do so.
On two subsequent occasions mother was not transported to court. At one such date in late January 2013,
mother’s counsel again indicated some maternal relatives had been asking the
social worker to set up visitation with Kenneth. The maternal relatives were seeking monitored
day, or overnight, visits. The court
ordered DCFS to evaluate the maternal relatives for visits, and facilitate
visits if appropriate.
In a last minute information filed before
the next hearing date, DCFS reported the paternal grandmother favored Kenneth
maintaining relationships with his maternal relatives, and she was willing to
make him available for visits under “reasonable circumstances.†DCFS indicated Kenneth’s last visit with
maternal relatives was in late December 2012, when his maternal
great-grandmother took him to visit mother at the detention center. Paternal grandmother had not heard from the
maternal great-grandmother since. The
report continued:
“PGM [paternal grandmother] said the only
maternal relative she has ever heard from regarding visits with Kenneth is MGGM
[maternal great-grandmother]. Apparently
MGGM does not drive and is most often accompanied by MGM [maternal grandmother]
to the visits that have occurred with Kenneth.
When not accompanied by MGM, MGGM is driven by ‘one of her sons,’ none
of whose names PGM knows. MGM and her
husband . . . have long histories of substance abuse and drug-related arrests
or convictions as late as 2010. [¶] PGM is very concerned that by allowing MGGM
to take Kenneth for overnight or weekend visits she is putting him at risk,
because she believes, based on maternal family’s history, MGGM will take
Kenneth to MGM’s home where she has no reason not to believe illicit drug use
continues. . . . MGGM . . . said she just wants to be able to show her grandson
her home and take him places. . . . [¶] MGGM said she did not come
forward earlier, because she did not know Kenneth was in the system. However, according to [the services social
worker], mother was repeatedly asked about family members who may be interested
in Kenneth. Mother never mentioned
MGGM. [¶] In view of the lateness of the hour, the
demonstrated capacity of many of mother’s family members for deceit and
manipulation, it seems in Kenneth’s best interest that any change in the
visitation order be approached with an abundance of caution, until a good deal
more is known. [¶] In view of the foregoing, it is respectfully recommended
ongoing visitation for MGGM, mother, and other maternal relatives continue to
be monitored.â€
At the contested section 366.26 hearing, mother opposed
termination of parental rights. She
asked the court to order legal guardianship instead of adoption. She did not offer any evidence or argue that
any exception to termination of parental rights applied. The court terminated parental rights and
ordered adoption as the permanent plan.
Mother’s counsel raised his previous request that the maternal relatives
be assessed for visitation. The court ordered
DCFS to facilitate contact with the maternal relatives “if appropriate.â€
Mother filed a
notice of appeal challenging the court order terminating her parental rights
and “grandparent rights that were not granted to my grandparents [maternal
great-grandmother and great-grandfather].â€
DISCUSSION
Placement
Mother asserts the
trial court abused its discretion in failing to independently review the
placement of Kenneth with his maternal great-grandparents, and in delegating to
DCFS the decision whether Kenneth would visit with the maternal relatives after
the court terminated parental rights. We
reject these arguments. Mother does not
have standing to challenge the visitation order. Further, relative placement with the maternal
great grandparents was never raised below.
Mother Does Not Have Standing to Challenge the Visitation Order
On appeal, mother advances
only one argument regarding visitation.
Mother contends the trial court erred in giving DCFS discretion to
determine whether visitation between Kenneth and maternal relatives was
appropriate. Because the challenged
order concerned visitation with relatives after mother’s parental rights were
terminated, we conclude she does not have standing to challenge the order.
The standing of a parent to challenge a
dependency court order relating to a non-parent relative was recently discussed
in In re K.C. (2011) 52 Cal.4th
231. The court explained:
“Not every party has standing to appeal every appealable order. Although standing to appeal is construed
liberally, and doubts are resolved in its favor, only a person aggrieved by a
decision may appeal. [Citations.] An aggrieved person, for this purpose, is one
whose rights or interests are injuriously affected by the decision in an
immediate and substantial way, and not as a nominal or remote consequence of
the decision. [Citation.] These rules apply with full force to appeals
from dependency proceedings.
[Citation.] . . . . All parents,
unless and until their parental rights are terminated, have an interest in
their children’s ‘companionship, care, custody and management . . . .’
[Citation.] This interest is a ‘compelling one, ranked
among the most basic of civil rights.’
[Citation.] While the overarching
goal of the dependency law is to safeguard the welfare of dependent children
and to promote their best interests [citation], the law’s first priority when
dependency proceedings are commenced is to preserve family relationships, if
possible. [Citation.] To this end, the law requires the juvenile
court to provide reunification services unless a statutory exception applies. [Citation.]
In contrast, after reunification
services are terminated or bypassed (as in this case), ‘the parents’ interest
in the care, custody and companionship of the child [is] no longer paramount. Rather, at this point “the focus shifts to the
needs of the child for permanency and stability . . . .â€
’ [Citations.]†(K.C., at
p. 236.)
In
dependency court order denying the grandparents’ petition to modify the child’s
placement so that he would be placed with them instead of with unrelated foster
parents. Although the juvenile court had
terminated the father’s parental rights, the father did not challenge that
order. As a result, our high court
concluded the father was not “aggrieved†by the court’s placement order. After reviewing relevant authorities, the
court derived the rule that “a parent’s appeal from a judgment terminating
parental rights confers standing to appeal an order concerning the dependent
child’s placement only if the placement order’s reversal advances the parent’s
argument against terminating parental rights.â€
(Id. at p. 238.) Because the father did not contest the
termination of his parental rights, he had “relinquished the only interest in
[the child] that could render him aggrieved by the juvenile court’s order
declining to place the child with grandparents.†(Ibid,
fn. omitted.)
Mother argues that
unlike the father in K.C., she is
aggrieved because she contests the termination of her parental rights. That factor is not determinative. Mother challenges the court’s alleged error
with respect to visitation with maternal relatives, not placement. And the alleged error concerned visitation
terminated. Indeed, mother’s contentions
with respect to visitation are limited to the court’s order issued after it
terminated her parental rights, giving DCFS discretion to determine whether
future visitation with maternal relatives was appropriate. Even were we to find the trial court erred in
failing to require DCFS to facilitate visitation with maternal relatives at
that point, reversal of the visitation order would not advance mother’s
argument against terminating her parental rights.
Placement of a child with relatives may
facilitate the parent-child relationship and may make the termination of parental
rights unnecessary. (
Cal.App.4th 1042, 1054; In re H.G. (2006)
146 Cal.App.4th 1, 10-11.) But a court
order requiring relative visitation after parental rights have been
terminated—even if it were appropriate—would not alter the already-pronounced
order terminating parental rights.
aggrieved by the court’s order regarding relative visitation that would occur
after her parental rights were terminated.
In sum, the
visitation issue mother challenges is the post-termination of parental rights
court order delegating authority to DCFS to determine whether visits between maternal
relatives and Kenneth would occur. There
was no possibility that reversing that order might lead the juvenile court not
to terminate parental rights. Mother
cannot establish she was aggrieved by the court’s order. She therefore does not have standing to
challenge the issue on appeal.
Relative Placement Issue Presented to the Juvenile Court
juvenile court erred in failing to consider placing Kenneth with maternal
relatives. She argues that, under the
reasoning of K.C., she has standing
to appeal the order. Yet, mother’s
argument is out of step with the facts of this case. Mother does not contend the trial court
failed to appropriately consider maternal relatives for initial placement under
section 361.5 at the disposition hearing, nor could she timely challenge a
disposition order in this appeal. Mother
also does not contend DCFS failed to properly ascertain whether maternal
relatives were interested in having Kenneth placed with them. She does not contend she at any time
requested that Kenneth be placed with maternal relatives. Instead, as we understand her argument, mother
asserts the trial court erred in failing to independently consider placement
with the maternal great grandparents in response to the last minute information
filed immediately before the section 366.26 hearing. We conclude there was no placement issue properly
before the court at that time.
Before the initial
detention hearing, the maternal grandmother live-scanned and asked that Kenneth
be placed with her. However, by the time
of the detention hearing, not all adults in the maternal grandmother’s home had
live-scanned. In an interview recounted
in the jurisdiction and disposition report, mother told DCFS the maternal
grandmother had an unresolved substance abuse problem. Mother did not make a relative placement
request, either in writing, or in court.
In late August 2011, when the dependency court asked if there were
objections to placement of Kenneth with the paternal grandmother, mother did
not object. In the 17 months that
followed, neither mother nor her relatives requested placement of Kenneth. Moreover, even when the maternal great-grandmother
entered the picture immediately before the section 366.26 hearing, she asked
maternal great-grandparents sought to have Kenneth placed in their home.
Under section
361.3, whenever a child is removed from parental physical custody at
disposition, “preferential consideration shall be given to a request by a
relative of the child for placement of the child with the relative.†(§ 361.3, subd.(a); see also
[“Once a child is placed in the home of a nonrelative at the dispositional
hearing, the relative placement preference does not arise again until ‘a new
placement of the child must be made.’
[Citations.]â€]; In re Joseph T. (2008)
163 Cal.App.4th 787, 794-795 [when relative comes forward requesting placement during
reunification period, court and social worker must evaluate relative].) When more than one “appropriate relative
requests consideration . . . each relative shall be considered under the
factors enumerated†in the statute. (§
361.3, subd. (b).) Here, aside from the
maternal grandmother’s initial request for placement at detention--which is not
at issue in this appeal--there were no other requests for consideration from
maternal relatives. Thus, mother’s
argument on appeal that the court “abused its discretion by declining to
independently review the placement of Kenneth with the maternal great
grandparents,†is misplaced.
No placement decisions
were being made at the section 366.26 hearing.
But even to the extent placement was an issue, there is no indication
the maternal great-grandparents wanted to have Kenneth placed with them. The last minute information indicated the
maternal great-grandmother “just wants to . . . show her
grandson her home and take him places.â€
The last minute information made no reference to placement. We have no legal or factual basis to
conclude the trial court erred in failing to sua sponte reconsider Kenneth’s stable
placement with the paternal grandmother and prospective adoptive parent, in
favor of maternal great-grandparents who expressed no interest in placement.
Evidence Supported the Court Order Terminating Reunification Services
Mother
contends the trial court erred in terminating reunification services because
DCFS did not provide reasonable reunification services. We disagree.
A. Mother’s failure to comply with the writ
requirement
Mother acknowledges that, in general, a
parent wishing to challenge a juvenile court order terminating reunification
services and setting a hearing pursuant to section 366.26 may only do so by
timely filing a petition for extraordinary review. (§ 366.26, subd. (l).) The order is not appealable unless such a
writ petition has been filed and denied, or otherwise not decided on the
merits. (§ 366.26, subds. (l)(1),
(l)(2); Cal. Rules of Court, rules 8.450 & 8.452.)
Mother did not file a writ petition to
challenge the termination of reunification services. However, she contends she was relieved from
the writ requirement because she was not properly advised of her writ
rights. When the juvenile court makes an
order setting a section 366.26 hearing, it must advise all parties of the
extraordinary writ review requirement.
The court must give an oral advisement to parties present at the time
the order is made, and “[w]ithin one day after the court orders the [section
366.26] hearing, the advisement must be sent by first-class mail by the clerk
of the court to the last known address of any party who is not present when the
court orders the [section 366.26] hearing.â€
(Rule 5.590(b)(1) & (b)(2).)
In accordance with these rules, “judicial error in failing to advise a
party in a dependency proceeding of the writ requirement for challenging an
order setting a section 366.26 hearing that results in a failure to file a writ
petition may excuse a party’s failure to comply with that requirement and allow
a reviewing court to reach the issues on appeal from the orders following the
section 366.26 hearing.†(
347.)
Mother contends she was not duly advised
of her writ rights. She was not present on
August 21,
2012, when the court set the section 366.26
hearing and gave the requisite oral advisement.
And, while the court ordered the clerk to mail the written advisement to
the last mailing address mother had provided to the court, mother was at the
time incarcerated. Supporting mother’s
position is the DCFS status review report filed on the day of the August 21 hearing
which indicated mother was incarcerated, and identified the address of the
detention facility. This was ostensibly
mother’s “last known address,†but the writ advisement was not sent there.
On the other hand, mother does not claim
she was unaware of the writ requirement, or that she failed to receive the
written notice sent to her last permanent mailing address before her
incarceration. (In re T.W. (2011) 197 Cal.App.4th 723, 730, 731.) Further, the record does not indicate mother
informed DCFS or the court of her incarceration and resulting address change;
the DCFS social worker found out from the paternal grandmother. “A parent’s designated permanent mailing
address is used by the court and the social services agency for notice purposes
unless and until the parent provides written notice of a new mailing address.
(See § 316.1, subd. (a).)†(
348.) Mother had in fact notified the
court and DCFS of a previous address change using the judicial council form
designed for that purpose.
name="_ftnref6" title="">[6]
“[I]n the published cases that have
permitted a parent to challenge the merits of a referral order after failing to
take a writ, it is clear that the court in fact failed to give the oral advisement
(when the parent was present) or that the written advisement (when the parent
was not present) was not sent to or received by the parent.†(T.W.,
supra, 197 Cal.App.4th at p. 730.) Here,
it is clear the written advisement was not sent to mother at the detention
facility, but not clear she did not actually receive the advisement, which was
sent to the last permanent mailing address she designated. In an abundance of caution we will consider
mother’s challenge to the juvenile court order terminating reunification
services.
B. Substantial
evidence supported the juvenile court’s reasonable efforts finding
We disagree with mother’s assertion that
the juvenile court’s reasonable efforts finding was in error. DCFS was required to “ ‘make a good faith effort to develop and implement a family reunification
plan. [ Citation.]
“[ T]he record should show that the supervising agency identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable
contact with the parents during the course of the service plan, and made reasonable efforts to assist the parents in areas where compliance proved difficult . . . .â€
[ Citation.]’
[Citation.] ‘The standard is not
whether the services provided were the best that might be provided in an ideal
world, but whether the services were reasonable under the circumstances.’ [Citation.]
‘The applicable standard of review is sufficiency of the evidence. [Citation.]’ [Citation.]â€
(In re T.G. (2010) 188
Cal.App.4th 687, 697.)
Substantial evidence supported the juvenile
court finding that DCFS provided reasonable reunification services. In the jurisdiction and disposition report,
DCFS recommended a case plan including parenting education, individual
counseling to address case issues, a drug program, and random drug
testing. In August 2011, the court
approved a plan for DCFS to provide mother with no or low cost referrals for
programs. Mother was to have monitored
visits at least once per week. She was additionally
ordered to participate in a counseling program addressing parenting and alcohol
and drug counseling, as well as individual counseling to address case
issues. She was also to have random
alcohol and drug testing. A social
worker reviewed the court orders with mother in September 2011. Mother had reportedly checked into a
treatment center for one week, but then left.
The social worker offered mother referrals, but she had her own list she
wished to use. The social worker told
mother about the process for weekly drug testing and told mother her paperwork
would be submitted to the testing service the next day. The social worker also discussed visitation. The social worker met with mother again two
months later, in November 2011. Mother
told the social worker she was in the process of following the court
orders. The social worker gave mother a
copy of the court orders and a list of counseling referrals.
In December 2011, mother failed to attend
a scheduled meeting with the social worker.
They spoke on the telephone. The
social worker requested that mother provide an on demand drug test. Mother said she could not, but offered to
test the next day. Mother also said she
would go to the social worker’s office and provide information about the
counseling she was receiving. Mother
then ceased all contact with DCFS for at least eight months.
August 2012, the DCFS social worker had only recently learned that mother was
incarcerated.
Mother submitted only one drug test in
June 2011. She missed all subsequent
tests. She never provided any
information indicating she had engaged in counseling as ordered. Mother visited Kenneth until the visit
location was changed. Mother did not
respond to DCFS letters sent in December and January 2012 asking mother to
contact DCFS.
name="_ftnref8" title="">[8] In the DCFS section 366.26
report, the agency indicated mother initially had frequent but irregular visits
with Kenneth, these visits became less frequent in early 2012, then stopped,
apparently before she was incarcerated in June 2012. The February 2013 last minute information
suggested Kenneth had visited mother once at the detention center in December
2012, along with the maternal great-grandmother.
On appeal, mother asserts DCFS failed to provide
reasonable reunification services because it did not arrange visits for mother
with Kenneth after she was arrested and subsequently incarcerated in or around June
2012. However, the court terminated
reunification services in late August 2012.
Thus, the court’s reasonable efforts finding had to be based on DCFS
efforts between August 2011 and August 2012.
There is substantial evidence to support the court’s reasonable services
finding for that period. Mother was in
custody during only the last two months of that period, and DCFS only learned
of mother’s incarceration in the last few weeks of that period. Before mother was incarcerated, DCFS set up
drug and alcohol testing for her. She
failed to comply and tested only once. DCFS
offered referrals for programs and counseling; mother once rejected the
referrals, then later accepted them, yet she never provided any verification of
her participation in any program.
DCFS also attempted to work with mother
regarding visitation, but it is undisputed that mother did not cooperate,
falling completely out of contact in December 2011, despite DCFS’s attempts at
communication. “While it is true the
social worker is charged with maintaining reasonable contact with the parents
during the course of the reunification plan, he or she cannot do so without
some degree of cooperation from the parent.â€
(T.G., supra, at p. 698.) Mother ceased contact with DCFS in December
2011. The record indicated the social
worker tried to remain in contact with mother by telephone, in person, and in
writing, to no avail. A later report
indicated mother had no contact with family members between February and June
2012. Mother did not tell the social
worker she was incarcerated, leading the worker to only find out, belatedly,
from the paternal grandmother. (
The record supported a finding that DCFS
made a good faith effort to develop and implement a reunification plan. Even if DCFS failed to do enough to
facilitate visits for Kenneth and mother once the social worker learned mother
was incarcerated, this failure occurred less than one month before the 12-month
review hearing. For nearly eight months
before that mother failed to apprise DCFS of her whereabouts. Substantial evidence supported the trial court
conclusion that adequate reunification services were provided to mother under
the circumstances.
Juvenile Court Did Not Err in Failing to Apply the Beneficial Parent-Child
Relationship Exception
Finally, mother contends the juvenile
court erred in failing to apply the beneficial parent-child relationship
exception to adoption. We disagree. Although mother objected to the termination
of her parental rights, she did not ask the court to apply the beneficial
parent-child relationship exception.
Mother therefore forfeited the issue on appeal. “The juvenile court does not have a sua
sponte duty to determine whether an exception to adoption applies. [Citations.]
The party claiming an exception to adoption has the burden of proof to
establish by a preponderance of the evidence that the exception applies.†(In re
Rachel M. (2003) 113 Cal.App.4th 1289, 1295.)
At the section 366.26 hearing, mother’s
counsel argued: “[M]y client is opposed to the termination of parental
rights. She would ask that the court
order a less – I’m going to say less permanent plan of legal guardianship. Although my client’s incarcerated, she’s
participated in many programs, completed rehab, parenting, et cetera. But for her incarceration, I believe she
would have a good 388 petition available at this time, but again she’s opposed
to the termination of her parental rights.â€
This fell far short of asserting any exception to adoption was
applicable and did not preserve the issue for appellate review. A determination concerning the beneficial
relationship exception raises factual questions that are unsuitable for
resolution for the first time on appeal.
(Daisy D., supra, 144
Cal.App.4th at p. 292.)
Moreover,
even had mother preserved the issue for appellate review, we would find no
error. The beneficial relationship
exception to adoption applies only when the parent establishes she or he has
maintained regular visitation and contact with the child, and the child would
benefit from continuing his or her relationship with the parent. (§ 366.26, subd. (c)(1)(B)(i).) The record did not support a finding that
mother established even the first prong of the exception. Mother ceased regular visitation with Kenneth
several months before she was incarcerated.
DCFS reports indicated mother’s visitation was sporadic and irregular,
then stopped entirely, before she was
arrested. This was insufficient to
establish the regular visitation required for application of the beneficial
relationship exception. (
635, 643.) We would not conclude the
juvenile court erred in failing to apply the beneficial parent-child
relationship exception to adoption in this case.
The
juvenile court order is affirmed.
BIGELOW,
P. J.
We concur:
FLIER,
J.
GRIMES,
J.
found father had already been incarcerated for most of Kenneth’s life. The court denied father reunification
services. (See § 361.5, subd. (e)(1).)
Institutions Code unless otherwise specified.
