In re K.H.
Filed 9/28/10 In re K.H. CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re K.H., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
SHAWNA K. et al.,
Defendants and Appellants.
D057229
(Super. Ct.
No. SJ12093)
APPEALS
from orders of the Superior Court
of San Diego
County, Yvonne E. Campos, Judge. Affirmed.
Shawna K.
and O.H. (together the parents) appeal an order terminating their parental
rights to their daughter, K.H. Shawna
also appeals an order denying her Welfare and Institutions Code[1] section
388 petition. The parents each contend
they showed the beneficial parent-child relationship exception to termination
of parental rights and adoption of
section 366.26, subdivision (c)(1)(B)(i) applied in this case, and Shawna
maintains the court erred by denying her section 388 petition. O.H. joins Shawna's contentions and argues if
this court reverses termination of Shawna's parental rights, it must also
reverse termination of his parental rights.
We affirm the orders.
FACTUAL AND
PROCEDURAL BACKGROUND
On November 3, 2008, the San Diego County Health and Human Services
Agency (the Agency) petitioned on behalf of seven-month-old K.H. under
section 300, subdivisions (a) and (b) on the basis of the parents' substance
abuse and domestic violence. K.H. was
placed with the maternal grandmother (the grandmother) on November 26.
Shawna has
an extensive substance abuse history.
She admitted she and O.H. had been using methamphetamine the day K.H.
was removed. She entered a residential
drug abuse treatment facility in December 2008 and reported she was
participating in therapy and a doctor was monitoring the medication prescribed
for her bipolar disorder.
On January 8, 2009, the court found the
allegations of the petition true, declared K.H. a dependent child of the court,
ordered her placed in relative care and ordered reunification services for the
parents.
On May 14, 2009, Shawna left her
treatment facility and resumed using drugs.
She called the social worker in early June and said she would go to a
detoxification program, but then the social worker did not hear from her again. O.H. did not comply with services, continued
his drug use, was arrested for theft and was incarcerated. At the six-month review hearing on August 5, 2009, the court terminated
reunification services and set a section 366.26 hearing.
Shawna
returned to her residential drug abuse treatment program in September
2009. The social worker said Shawna and
K.H. had regular visits at the treatment facility and Shawna was appropriate
during visits and took on a parental role.
K.H. went to her easily and called her "mama." She separated easily from Shawna when visits
ended. Shawna also began having
supervised daytime visits with K.H. at the home of the grandmother and
step-grandfather (together the grandparents).
The grandmother reported Shawna took care of all of K.H.'s needs during
the visits and was affectionate and patient.
O.H. had two visits with K.H. in February 2009, but after his arrest did
not see her again until November 2009.
In a report
prepared for the section 366.26 hearing, the social worker said the grandparents,
who had been caring for K.H. since November 2008, want to adopt her and there
are 17 approved adoptive families in San Diego
County who want to adopt a child
with her characteristics.
On December 2, 2009, Shawna filed a
section 388 petition, alleging she had completed services and was attending
therapy and maintaining her sobriety.
She requested placement of K.H. and argued this placement would be in
K.H.'s best interest.
O.H. was
released from jail in November 2009. He
entered residential drug abuse treatment and began having loving, appropriate
visits with K.H. She went easily to him
and called him "dada" or "daddy." On March
5, 2010, O.H. petitioned under section 388, requesting six more
months of reunification services. He
said he had been participating in services and argued providing him with more
services would benefit K.H.
On March 5, 2010, the court summarily
denied O.H.'s section 388 petition, but found Shawna had made a prima facie
showing on her petition and granted a hearing.
In March
and April 2010, the court held a combined hearing on Shawna's section 388
petition and the section 366.26 hearing.
At the hearing Shawna's therapist testified Shawna first had therapy
with him in 2003, but attended therapy only sporadically over the years. They had had three therapy sessions together
since February 2010. He said Shawna had
been treated for bipolar disorder in addition to substance abuse, she was
strongly committed to recovery from drug abuse and she had a good prognosis if
she continued therapy.
The family
intervention specialist at Shawna's residential treatment facility testified
that since Shawna's return to the facility in October 2009, she had become
serious about her recovery and was complying with all aspects of her program. Shawna's drug and alcohol abuse counselor
testified Shawna was progressing well and had tested clean since September
2009.
Shawna
testified she was participating in drug
abuse treatment and was employed.
She said she had learned skills to enable her to be a better parent and
was working on sobriety and relapse issues.
She testified she was ready to graduate from the treatment facility and
would apply to move to a sober living environment. She visited K.H. on weekends at the
grandparents' home and cared for her there; K.H. called her
"mommy." She said she believed
it was in K.H.'s best interest to return to her care.
In
considering Shawna's section 388 petition, the court found Shawna had showed
changed circumstances, but she had not shown the change requested was in K.H.'s
best interest. After hearing argument
concerning the section 366.26 issues, it found K.H. is an adoptable child. As detailed below, the court found K.H. and
Shawna had a significant relationship and it indicated it intended to apply the
beneficial parent-child relationship exception to termination of parental
rights and adoption. But when informed
the grandparents were interested only in adopting K.H., not in assuming
guardianship, the court continued the hearing to obtain updated information
concerning this assertion. Following
further argument at the continued hearing, it found neither parent had shown
the exception to termination of parental rights and adoption of section 366.26,
subdivision (c)(1)(B)(i) applied. The
court terminated parental rights and ordered a permanent plan of adoption.
On appeal,
the parents and K.H.'s attorney claim the court erred because they met the
burden to show the beneficial parent-child relationship exception. They assert the court declined to apply the
exception because it improperly deferred to the wishes of the grandparents.
We hold the
court did not err by denying Shawna's section 388 petition. We also hold that although Shawna showed she
and K.H. share a significant emotional bond, the court did not err by finding
the parents did not meet the requirements to show that preserving the
parent-child relationship would outweigh the benefits to K.H. of adoption in a
stable, permanent home.
DISCUSSION
I
Shawna contends the court erred by denying her section
388 petition. She argues it was in
K.H.'s best interest to return to her care in that she had resolved her drug
abuse and domestic violence issues, and she and K.H. shared a beneficial
parent-child bond.
After a
court has terminated reunification services, "the focus shifts to the
needs of the child for permanency and stability." (In re
Hashem H. (1996) 45 Cal.App.4th 1791, 1800.) However, "[e]ven after the focus has
shifted from reunification, the [statutory] scheme provides a means for the
court to address a legitimate change of circumstances while protecting the
child's need for prompt resolution of [her] custody status." (In re
Marilyn H. (1993) 5 Cal.4th 295, 309.)
A change of
circumstances may be brought to the court's attention through a petition under
section 388. Section 388 provides in
part:
"(a) Any
parent or other person having an interest in a child who is a dependent child
of the juvenile court . . . may, upon grounds of change of circumstance or new
evidence, petition the court in the same action in which the child was found to
be a dependent child of the juvenile court . . . for a hearing to change,
modify, or set aside any order of court previously made or to terminate the jurisdiction
of the court . . . ."
"(d) 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 . . .
."
In order to
gain the relief sought in a section 388 petition, the petitioner must show both
a change of circumstances or new evidence and that the change sought is in the
minor's best interests. (§ 388; Cal.
Rules of Court, rule 5.570; In re Michael
B. (1992) 8 Cal.App.4th 1698, 1703.)
"It is not enough for a parent to show just a genuine change of circumstances under the statute[,] the
parent must [also] show that the undoing of the prior order would be in the
best interests of the child." (
519, 529.) A petition is liberally
construed in favor of its sufficiency. (
454, 461.) The petitioner bears the
burden of proof, however, to make both showings. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
In
three factors a court might consider when determining if a child's best
interests would be served by granting a section 388 petition: (1) the seriousness of the problem that led
to the dependency and the reasons for any continuation of the problem; (2) the
strength of the bond between the child and the caretaker; and (3) the degree to
which the problem may be removed and the degree to which it has been removed.
"The
[section 388] petition is addressed to the sound discretion of the juvenile
court and its decision will not be disturbed on appeal in the absence of a
clear abuse of discretion." (
415.) A reviewing court will not disturb
a court's discretionary ruling in a dependency proceeding " ' "unless
the trial court has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination [citations]." '
" (In re Stephanie M., supra,
7 Cal.4th at p. 318.)
Shawna has
not shown an abuse of the court's discretion.
Her burden was to show both a change of circumstances and that the
change she sought would serve K.H.'s best interests. The court found she had shown a change of
circumstances in that she was making good progress in drug treatment. The court stated:
"I have to say that [Shawna's] advancement in the
improvement in the amount of time since she submitted this petition and since
the prior hearing terminated her services -- she's made an incredible
stride."
However,
the court then determined Shawna did not show the change she requested would be
in K.H.'s best interest. The court's
finding is fully supported.
The court
carefully considered the factors set out in In
re Kimberly F., supra, 56
Cal.App.4th at pp. 530-532. It noted the
seriousness of the problem that led to K.H.'s dependency, the strength of the
bond between K.H. and Shawna compared with the bond between K.H. and the
grandparents, the length of time K.H. had been a dependent and the degree the
problems leading to the dependency could be easily removed. The court observed although Shawna had made
good progress, she still had much work to do to ameliorate the problems of drug
addiction and domestic violence. The
court commented that Shawna's sobriety was recent after years of substance
abuse and there were other circumstances that remained of concern. It cautioned she had attended only 16 out of
52 domestic violence treatment sessions and expressed the hope that she would
continue to have a doctor monitor her psychotropic medication. The court further noted K.H. had been with
the grandparents since November 2008 and had formed a deep attachment to them.
When a
child has been placed in foster care, the child's interest in stability may
outweigh the parent's interest in having the care and companionship of the
child. (In re Jasmon O., supra, 8
Cal.4th at p. 419.) The court
appropriately considered all relevant factors in deciding K.H.'s best interest
would not be served by changing the previous orders and placing her with
Shawna. It did not abuse its discretion
by denying Shawna's section 388 petition.
II
Shawna and
O.H. assert the court erred by finding the beneficial parent-child relationship
exception to termination of parental rights and adoption does not apply in this
case. Shawna complains the court
initially found the exception was present because of K.H.'s strong emotional
attachment to her, but then it allowed the grandparents' desire to adopt K.H.
to override its finding. As we shall
explain, the record supports the court's finding that the exception does not
apply.
Adoption is
the permanent plan favored by the Legislature.
(In re Autumn H. (1994) 27
Cal.App.4th 567, 573.) A child has a
compelling right "to have a placement that is stable, permanent, and that
allows the caretaker to make a full emotional commitment to the
child." (In re Marilyn H., supra,
5 Cal.4th at p. 306.) If the court finds
by clear and convincing evidence that a child is adoptable, it becomes the
parent's burden to show that termination of parental rights would be
detrimental to the minor because of a specified statutory exception to
termination of parental rights and adoption.
(In re Autumn H.,
statutory exception applies. (
823, 826.)
Under the
exception of section 366.26, subdivision (c)(1)(B)(i), the parents are required
to show termination of the relationship would be detrimental to a child in 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).) To make this showing, Shawna and O.H. were
required to show, not only that they share strong emotional bonds with K.H.,
but also that their relationships with her "promote 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 re Autumn H.,
This court
explained in In re Autumn H. that
when determining whether the exception is present, the juvenile court must
balance the parent-child relationship against the benefits the child would gain
from the security and permanence of adoption by a new family. (In re
Autumn H., supra, 27 Cal.App.4th
at p. 575.) The court stated:
"[T]he court balances the strength and quality of
the natural parent/child relationship in a tenuous placement against the
security and 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., supra,
27 Cal.App.4th at p. 575.)
"[M]ore
than just 'frequent and loving contact' " is required "to establish
the requisite benefit for [the] exception." (In re
Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) The parents must show more than an emotional
bond or that the parents and the child find the visits pleasant. (In re
Derek W., supra, 73 Cal.App.4th
at p. 827.) The parents must show they
occupy a parental role in the child's life.
(Ibid.) They must prove their relationships with the
child are of such significance that the child would be greatly harmed by
termination of their parental rights. (
We review
the sufficiency of the evidence to support the lower court's ruling on the
applicability of the beneficial parent-child relationship exception to adoption
by examining the evidence in the light most favorable to the order, giving the
prevailing party the benefit of every reasonable inference and resolving all
conflicts in support of the order. (
Substantial
evidence supports the juvenile court's determination the parents did not meet
the requisite burden of proof. O.H. was
incarcerated during much of the dependency period. After his release from jail in November 2009,
he had pleasant, appropriate visits with K.H., but he had not seen her for nine
months before visits resumed and his relationship with her was not parental.
By
contrast, Shawna proffered considerable evidence showing that her relationship
with K.H. was significant. She had
weekend day-long supervised visits with K.H. at the grandparents' home and
provided appropriate parental care during the visits. Reports of visits at the visitation center
also indicate the visits were warm and affectionate. However, the fact that Shawna established
that she and K.H. shared a meaningful bond is legally insufficient to meet the
statutory requirements set forth in section 366.26, subdivision
(c)(1)(B)(i). The parent must also show
that the harm associated with terminating parental rights would outweigh the
benefits the child would gain from adoption.
A detailed
recounting of the two hearings shows that Shawna failed to establish this
additional requirement. At the April 20, 2010 hearing, after hearing
testimony and counsels' initial arguments, the court was noticeably impressed
with Shawna's progress and with the evidence of the emotional bond she shared
with K.H. It indicated it was inclined
to find the beneficial parent-child relationship of section 366.26, subdivision
(c)(1)(B)(i) was present. It then
stated:
"I understand that in making this legal decision to
give you another opportunity or another chance to be there for this child
really increases a burden on the maternal grandparents, because they will have
guardianship over this child."
At this
point in the hearing, the court was informed that the grandparents were not
interested in guardianship, but only in adoption. When hearing this, the court stated:
"My interest is not in moving the child outside of
where the child has been because I do find that the bond to the current
caregivers far outweighs the parental bond that I've
found . . . ."
At this
point the court, without objection, continued the hearing to obtain updated
information and for further argument.
Three days
later the hearing resumed. It was
stipulated that were the grandparents to testify, they would say they were
interested in adopting K.H., but were not interested in guardianship. The court then heard additional argument on
whether the exception applied. Counsel
for the Agency specifically focused on the requirement that for the beneficial
parent-child relationship exception to apply, the court must not only find the
parent and child share an emotional bond, but it also must weigh that factor
against the stability and strength the child would gain from a permanent
adoptive home. Counsel pointed out that
case law recognizes that interaction between a parent and child will always
confer some sort of incidental benefit to the child, but the exception requires
that the parent-child relationship promotes the child's well-being to such a
degree that it outweighs the well-being the child would gain from an adoptive
home. (In re Autumn H., supra,
27 Cal.App.4th at p. 575; In re Casey D.
(1999) 70 Cal.App.4th 38, 52, fn. 4.)
The court
asked Shawna's counsel to explain how the bond Shawna shared with K.H. was of
such a degree that it would meet this burden of proof. The court stated, "the operative
question then becomes if it's [Shawna's] burden to show that [the parent-child
bond] is greater than what the current caregivers who the possible specific
[adoptive] parents are, then that's what I need to hear about next." In response, Shawna could only state that
K.H. benefitted from the fact she had turned her life around, she and K.H.
shared a strong emotional bond and they had had positive visits for seven
months. She did not explain how the benefits
of maintaining their relationship would outweigh the benefits K.H. would gain
from adoption.
A review of
the two hearings shows that at the earlier hearing, when the court indicated it
would find the exception, the court had considered only Shawna and K.H.'s
relationship. It had not, as it is
required to do, taken into account the Legislative preference for adoption, nor
had it weighed the benefits of their relationship against the benefits of
adoption. At the continued hearing, the
court took into account all requirements set forth in the statutory exception
and conducted the requisite weighing process.
It stated:
" . . . I'm not looking to
disrupt the current scenario that the child is in. Because I do think that that day-to-day bond
and that day-to-day upbringing and that day-to-day scenario does outweigh the
benefit that the child gets from the parent bond."
[¶] . . . [¶]
" . . . I think that
reconsidering the entirety of the record before me I do think that the more
just result is finding that the burden was not met and I must terminate
parental rights, because the exception hasn't been proven."
The court
did not err by making this determination.
While Shawna and K.H. share an emotionally significant bond, it is not a
parental relationship within the meaning of the statute. By the time of the hearing in April, Shawna
had been visiting K.H. for seven months, was engaging in services and wanted
K.H. back in her care. But she did not
fulfill a parental role. Early in K.H.'s
dependency, she had disappeared for four months and relapsed into drug
addiction, not seeing K.H. again until she returned to drug treatment. She did not again progress to unsupervised or
overnight visits. Her contact with K.H.
was limited to weekend day visits and visits at a visitation center. For 16 months the grandparents had provided a
loving home for K.H., providing for her needs and nurturing her on a daily
basis.
The court
did not wrongfully allow the grandparents' wish to adopt K.H. to
"trump" Shawna's and K.H.'s interests. Where a parent-child bond is shown to exist,
the juvenile court is called upon to consider all circumstances and to do a
complex balancing to decide whether the exception applies. While we agree with appellate counsel for the
parents and the child that it would be improper to permit the wishes of the
caregivers to control, in balancing the benefits of the parent-child
relationship against the benefits of an adoptive home it is appropriate for the
court to consider, among all relevant factors, the stability and strength the
child enjoys in the home of long-time devoted caregivers. "After the termination of reunification
services . . . . 'the focus shifts to the needs of the
child for permanency and stability' . . . ." (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
The Agency is required to prepare an assessment for the section 366.26
hearing that includes the child's relationship to prospective adoptive
parents. (§ 366.21, subd.
(i)(D).) In determining the best
permanent plan for the child, and whether the stability of adoption outweighs
the preservation of the parent-child relationship, the court must take into
account where the child has been placed and for how long, and also his or her
relationship with the caregivers and the potential impact of severing that
relationship. "Children . . . have
fundamental rights--including the fundamental
right to be protected from neglect and to 'have a placement that is stable
[and] permanent.'
[Citations.]" (
Having reviewed the entirety of the two section 366.26 hearings, we are
satisfied the court did not, as the parents assert, defer to the grandparents'
wishes. The court properly took into
account K.H.'s relationship with the grandparents and the benefits to her of
remaining in their care in weighing the benefits of adoption against the
benefits of maintaining the parental relationship. It did not err by considering the
grandparents' wish to adopt K.H., rather than enter into a guardianship arrangement.
Substantial
evidence supports the court's finding the parents did not meet their burdens to
show the exception to termination of parental rights and adoption of section
366.26, subdivision (c)(1)(B)(i).
The parents
rely on In re S.B. (2008) 164 Cal.App.4th
289, a case from this court, to support their argument the court should have
applied the beneficial parent-child relationship exception. In In
re S.B., we reversed the trial court's finding that the beneficial
parent-child relationship exception did not apply after concluding the child
would be greatly harmed by loss of the significant positive relationship she
shared with her father. (
provide insight, these comparisons are not dispositive. The determination on appeal is whether there
is substantial evidence to support the trial court's findings that the
beneficial parent-child relationship exception did not apply. We conclude that on the facts of this case,
the court's findings are fully supported.
DISPOSITION
The orders
are affirmed.[2]
HALLER, Acting P. J.
WE CONCUR:
McDONALD,
J.
AARON,
J.
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[1] Statutory references are to the
Welfare and Institutions Code.
[2] In light of our resolution of the
case, we do not address the Agency's motion to dismiss portions of the minor's
brief. We deny the motion as moot.
