In re M.G.
Filed 4/11/13
In re M.G. 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 M.G. et al., Persons
Coming Under the Juvenile Court Law.
B243897
(Los Angeles County
Super. Ct. No. CK45503)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MICHELLE S. et al.,
Defendants and Appellants.
APPEAL from
orders of the Superior Court of
County. Phillip L. Soto, Judge. Affirmed.
Nancy Rabin
Brucker, under appointment by the Court of Appeal, for Defendant and Appellant
Michelle S., Mother.
Jack A.
Love, under appointment by the Court of Appeal, for Defendant and Appellant
Pedro G., Father.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Navid
Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
No
appearance for Minors.
* * * * * *
Appellants
Michelle S. (Mother) and Pedro G. (Father) appeal from the dependency court’s
denial of their petitions for modification (Welfare and Institutions Code
section 388)
title="">[1] and from the order terminating their parental
rights to their son M.G. (now age eight) and their daughter L.G. (now age
seven). They contend the court abused
its discretion in denying their section 388 petitions. They also contend their parental rights
should not have been terminated because they visited regularly and the children
would benefit from continuing the family relationship. (§ 366.26, subd. (c)(1)(B)(i).) Mother contends that the court failed to
apply the sibling benefit exception to the statutory preference for
adoption. (§ 366.26,
subd. (c)(1)(B)(v).) We find no
error in any of the court’s orders and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
M.G. and
L.G. first came to the attention of DCFS on July 23, 2007. DCFS received a referral alleging
children, and violent altercations between the parents. Rico A.
visited Mother’s home. Mother was heard
to yell “Tell them to get the fuck out [of] my house.†The children were very thin and appeared to
have some developmental problems. Mother
refused to provide Father’s contact information. She stated she had not used methamphetamine
since 2002 but tested positive for amphetamine and methamphetamine on July 24,
2007. She refused to cooperate with the
social workers when she realized the children were being taken into protective
custody and banged her head against the rear window of the patrol car with
enough force to break the glass.
DCFS filed a
dependency petition on behalf of M.G. and L.G.
The petition alleged that Mother had a history of substance abuse and
was a current user of amphetamines and methamphetamine; Mother was incapable of
providing the children with care; and Father failed to take any action to
protect the children when he knew of Mother’s drug use (§ 300, subd.
(b)(1)). At the detention hearing on
August 3, 2007, the juvenile court found Father to be the presumed father for
both M.G. and L.G. The court ordered the
children detained. Over the next two
months, neither parent responded to telephone messages or letters from
DCFS. When Father met with DCFS he told
them that he and Mother engaged in physical altercations in the presence of the
children. Mother acknowledged calling
the police to her home but denied any domestic violence issues.
On October
11, 2007, DCFS filed a first amended petition.
The allegation that Mother and Father engaged in physical altercations
in front of M.G. and L.G., and that the children were exposed to violent
confrontations between the parents (§ 300, subd. (b)(2)), was added to the
earlier allegation.
13, 2007 Adjudication Hearing
Mother
testified that she used drugs “a long time ago for a year only, 2001.†She blamed her friend who spiked her drink
for causing her recent positive drug test.
She testified that Father verbally abused her and hit her one time in
front of the children. The court
sustained both counts of the petition.
The children were declared dependents of the court,
and Mother and Father were given monitored
visitation. The court warned
Mother and Father that the services would be terminated if they did not show
“significant progress.â€
The DCFS
interim review report dated April 7, 2008, stated that both parents visited the
children. Mother completed her parenting
classes but Father had not enrolled in any of the court ordered services. He informed the social worker that he
attended parenting classes in the past but it did not help him to get custody
of his child from his previous marriage.
At the May 15,
2008 review hearing, the court terminated Father’s family reunification
services because he had not made significant progress in resolving the problems
that led to M.G. and L.G.’s removal. The
court allowed mother to have unmonitored visits on the condition that she remain
in compliance with her drug program, and that she not visit the children with
Father. The court explained to Mother
that the children could not be returned to her home if she continued to live
with Father because he refused to do “anything to help him stop the behavior
that brought the case to court.†Mother
was also ordered not to have visits with the children at her home.
Mother
informed DCFS that 17-year-old Rico was living with her and not attending
school. DCFS made an unannounced visit
to Mother’s home and discovered Father was present while the children were
visiting. As a result of violating the
court’s visitation orders the court granted DCFS’s section 388 petition and
ordered Mother’s visits changed from unmonitored to monitored.
Mother and
Father continued to visit the children.
Mother missed two drug testing appointments on October 29, 2008, and
December 4, 2008, and had minimal contact with DCFS. Mother continued to deny that Father resided
with her, even though he was at her home during subsequent unannounced visits
by DCFS in November 2008, and February 2009.
March 24, 2009
18-Month Permanency Review Hearing
Mother
testified that she had no relationship with Father and he did not enter the
house. The court returned the children
to Mother’s custody over DCFS’s objections, and ordered DCFS to provide Mother
with family maintenance services.
The DCFS
status review report dated September 22, 2009, noted that the program
coordinator at the Failure to Thrive Clinic at Harbor/UCLA stated that both
children were underweight, and had possible speech and developmental
delays. It was also determined that the
children were in need of mental health services. Mother was advised to make appointments with
the appropriate specialists. She stated
that she wanted “DCFS out of [her] life,†she did not trust the social workers
and was “tired of having [them] come into [her] house.â€
Mother
refused to acknowledge that the children needed help even though they continued
to present signs and symptoms of failure to thrive, speech deficiency and
socialization difficulties. She stated
that her DCFS case would soon be closed and she would not have to come to the
nutrition clinic any longer. Mother did
not show up for scheduled school appointments to discuss M.G.’s behavioral
problems which included his refusal to participate with others, hiding under
tables, and running away. The regional
center assessment worker initially diagnosed the problem as “selective mutismâ€
a condition in which a child who can speak well, stops speaking, usually in
school or social settings. The assessor
stated that M.G. was either “very scared or something very traumatic happened
to him in the past or recently.†L.G.
was receiving speech therapy. She was
aggressive and antagonistic and kicked and hit older children in the playground
at kindergarten.
Mother
resisted efforts to enhance her parenting skills and to access alternative food
and recreational sources and stated “I want DCFS out of my life and I am tired
of having to go places for my children when they are normal kids. Nurses ask me questions about my past, the
clinic people keep saying that [L.G.] is thin or not
speaking. . . . They ask
too much and I am tired. I don’t trust
those people. I want everybody out.â€
Mother
failed to disclose that L.G. had been taken to the emergency room on
July 1, 2010, and subsequently hospitalized for four days for a high
fever, cough and swollen throat. L.G.’s
infection had been ongoing because the John Tracy Clinic was unable to carry
out a hearing assessment for the children in December 2009, and again in June
2010, because L.G. had an ear infection and M.G. had excessive wax. After L.G. was discharged from the hospital
Mother did not follow the instructions she was given for L.G.’s follow-up
care. She waited five days instead of
two days to see the pediatrician and failed to make an appointment with an ear,
nose and throat specialist. The court
ordered a psychological evaluation pursuant to Evidence Code section 730,
and found that continued jurisdiction of the children was necessary.
342 Petition
name="_ftnref3" title="">[3]
On October
13, 2010, DCFS filed a section 342 petition on the children’s behalf, alleging
Mother had mental and emotional problems and had failed to seek medical treatment
for the children (§ 300, subds. (b) and (j)).
Mother
initially refused to cooperate with the court order that she undergo
psychological evaluation. She told the
social worker she was sick and tired and stated, “I’ll take my kids and go
somewhere that’s better than here and no one can bother me. Even if you take my children away, I will
kidnap them.â€
In
mid-September, more than two months after receiving the referral from
Children’s Hospital, Mother had not made an appointment for L.G. with an ear,
nose and throat specialist.
On August
23, 2010, Lauren Reba-Harrelson, Ph.D., a forensic psychologist, evaluated
Mother. She opined that Mother
“display[ed] features of borderline personality disorder, including mood
instability, difficulty controlling anger, unstable interpersonal
relationships, and impulsive, maladaptive behavior.†Dr. Reba-Harrelson recommended that Mother’s
custody of the children be terminated because Mother’s poor insight and
judgment, history of drug use and domestic violence, and resistance to DCFS
services, posed a significant threat to her children’s well-being and safety.
The court
found a prima facie case for detaining M.G. and L.G. and that the children were
minors described by section 300, subdivisions (b) and (j). Custody of the children was vested with DCFS
and the children were placed in foster care.
The court ordered monitored visitation for Mother. The court was informed that Father’s
whereabouts were unknown,
name="_ftnref4" title="">[4] and he would have monitored visitation when he
contacted DCFS or the court.
Reports
Mother
interviewed with DCFS for the jurisdiction/disposition report dated November
19, 2010. She denied all the allegations
in the petition. She discussed being a
victim of physical and sexual abuse as a child, and the victim of physical
abuse by the fathers of her first three children. Father also hit her, but not as much as the
other men. She described Father as
“stubborn†and “pig-headed.â€
Father was
interviewed on November 2, 2010. He
stated that Mother had anger issues and yelled at the children, but he had
never seen her hit them. Father told
DCFS that he had a separate open case involving another son. The mother of that child had filed a
restraining order against Father because he had taken the child without her
consent. Father stated that domestic
violence counseling classes did not help and he did not have the time or the
money to complete the classes.
In its
December 20, 2010, interim review report, DCFS reported that the children were
continuing to receive medical and mental health services since their removal in
October 2010. M.G.’s communication
skills had improved and the social worker was able to understand 75 percent of
his words and sentences. L.G. appeared
to be more talkative than her brother but the social worker could only
understand approximately 35 percent of what she said.
DCFS
recommended the court terminate family reunification services for Mother and
requested a court-appointed special advocate (CASA)
had numerous educational needs.
December 20, 2010
Section 342 Adjudication Hearing
Mother
testified at the contested adjudication hearing that she took L.G. to the
doctor “right away†when she complained of an earache. Mother also denied making any statements
about taking her children away or kidnapping them.
Rico
testified that he accompanied Mother to all of L.G.’s doctors’
appointments. He testified that Mother
treated L.G.’s ear infection problem and followed through with seeing the ear,
nose and throat specialist. He lived
with Mother for approximately three years and did not have a job or go to
school. On cross-examination, Rico
denied he relied on Mother for support and stated his income came from winning
online games on his computer.
The court
sustained the petition and found that Mother had been diagnosed with
(§ 300, subd. (b)(1)), and did not follow through correctly with medical
appointments for L.G.’s ear infection (§ 300, subds. (b)(2) and (j)(1)). A disposition hearing was set for January 18,
2011.
On January
10, 2011, Father made an unannounced visit to DCFS and asked to visit with M.G.
and L.G. He also requested referrals for
parenting and individual counseling.
Father wanted to know when the children were returning home. He did not want to continue paying $935 for
rent for the house when his children were not living there. He stated that neither Mother nor Rico, who
lived at the house and stayed in his room all day, were employed.
Also on
January 10, 2011, DCFS reported that L.G. had exhibited severe behavioral
problems at her caregiver’s home. L.G.
broke her medication bottle and had missed several doses of her
medication. L.G. was placed in a new
foster home with Mr. and Mrs. N., who were both teachers at L.G.’s school.
On January
12, 2011, Mr. N. notified DCFS that L.G. needed constant attention and
direction and threw tantrums at their home when she did not get her own
way. Individualized education programs
(IEP’s) had not been prepared for the children because Mother as the holder of
the educational right had not provided the necessary signature.
On January
18, 2011, the court limited the parents’ educational rights and appointed an
educational surrogate for L.G. On
February 23, 2011, the court made a similar order pertaining to M.G.
First Section 388 Petition (April 5,
2011)
On April 5,
2011, Father filed a section 388 petition asking the court to release the
children to his custody, or in the alternative, order family reunification
services for him. Father claimed to have
completed a 52-week domestic violence program, a parenting class, and was
undergoing individual counseling.
On May 17,
2011, DCFS filed a response to Father’s petition. The domestic violence program Father claimed
to have completed was from approximately five years earlier and Father did not
have any documentation for it. He was
enrolled in parenting classes but had not completed a program. The report also noted that Father and Mother
visited the children together and sometimes got into arguments in the
children’s presence, causing both children to cry. L.G.’s behavior at school was significantly
worse on the days following visits with her parents. Her caregiver reported that she cried for
long periods of time after the visits.
When M.G. returned from the visits he acted in a negative and defiant
manner. Father asked to have his visits
separate from Mother.
In the May
17, 2011 report prepared for the permanency planning hearing, DCFS reported
that M.G. was enrolled in the first grade but was performing far below grade
levels in English and math. L.G. was
referred for special education due to speech and language impairment.
On May 17,
2011, at the combined sections 366.26 and 388 hearing, Father’s counsel
withdrew Father’s section 388 petition.
The court continued the section 366.26 hearing to September 13, 2011,
based on DCFS’s representation that they were trying to find an adoptive home
for both children.
In the
status review report dated July 19, 2011, DCFS reported that M.G. was diagnosed
with post-traumatic stress disorder and required court approval to begin
treatment with medication. L.G. was
receiving psychotropic medication for her mood disorder. The children continued to live in separate
foster homes. L.G.’s behavior improved
since placement with Mr. and Mrs. N.
M.G. continued to be defiant with his caregivers and wanted to live with
L.G. Mother was crying when she called
DCFS on April 13, 2011, to report that she was having domestic violence issues
with Father. She stated she was
participating in domestic violence counseling but could not provide DCFS with
documentation. Father made numerous
visits to DCFS offices without prior notice.
He told them he was enrolled in parenting classes and participating in
individual counseling. He referred to
the domestic violence program he claimed to have completed five years earlier
but could not provide any documentation because he claimed to have moved out of
the home on April 13, 2011, during the incident of domestic violence.
Both
parents continued to visit the children together despite Mother and Father’s
strained relationship. The children
appeared to be in control during the visits and both parents lacked the
necessary parenting skills to be assertive and set boundaries. In April 2011, Father requested separate
visits. Mother contacted DCFS and asked
that Father undergo a psychological evaluation and stated she did not want the
children to reunify with Father because of his violent behavior. Separate visitation schedules were prepared
and sent to the parents. In May 2011,
the parents informed DCFS that they wanted to visit the children together, and
did so over the objections of the caregivers.
The visitation monitor reported that although both parents appeared to
love the children, they lacked parenting skills. The children were usually in control and
ignored the parents.
At the September
13, 2011 hearing, the court appointed Lynn James as the CASA representative.
Second Section 388 Petition (November
8, 2011)
On November 8,
2011, Father filed a section 388 petition asking the court to order family
reunification services for him, or in the alternative, increase his visitation
with the children. Father stated that he
and Mother now visited the children separately and all their issues had been
resolved. He was committed to reunifying
with his children and attached a certificate of completion for 20 parenting
classes in May 2011, and a letter that certified he had completed a 52-week
domestic violence program in 2005.
Reports (January 13, 2012 and January
17, 2012)
In a last
minute information for the court, filed January 13, 2012, DCFS reported that it
was searching for an adoptive family for both children. DCFS was assessing Mr. and Mrs. N.’s
home for that purpose because Mrs. N. was now interested in adopting both
M.G. and L.G.
In the
status review report dated January 17, 2012, DCFS reported that both children’s
behavior had improved and M.G. wanted to live with L.G. Mother filed a restraining order against
Father, and they continued to visit the children separately. Father wanted to take the children to San
Jose where he had some family support, or have them adopted by his sister
Veronica G., who lived in Arizona.
DCFS’s
response to Father’s section 388 petition listed their concerns: Father continued to engage in domestic
violence with Mother despite having completed a program in 2005, he was not
being truthful about his living arrangements, he had a job which required him
to leave home on short notice and DCFS was concerned that he would have minimal
time to make adequate childcare arrangements, he lacked a support system to
help assist him with the children, and had failed to comply with court orders
in the past and avail himself of family reunification services, and he may rely
on Mother to take care of the children.
On January
17, 2012, Lynn James filed a report with the court. Ms. James visited the children in their
foster homes and indicated that both children were friendly but had problems
verbally expressing themselves. Ms.
James also monitored visits between the children and their parents and noticed
that both parents had difficulty engaging with the children. She observed that Mother handed M.G. a cell
phone to play with instead of encouraging him to participate in activities with
other children that were present. During
the same visit, Mother was unable to work with L.G. on a project, and left L.G.
to work alone. Father exerted no control
over M.G. who bounced a ball off furniture, walls, and the ceiling, in Father’s
presence and continued to do so until he was reprimanded by the CASA representative. Ms. James opined that both children needed
continued educational, psychological, and speech assistance. She recommended that M.G. be placed with his
sister at the home of Mr. and Mrs. N. and DCFS continue to assess Mr. and
Mrs. N. for adoption of M.G. and L.G.
17, 2012 Hearing on Father’s Second Section 388 Petition
The court
denied the petition stating it was not a difficult case to judge because Father
“clearly†had not met his burden. Father
had not shown a change of circumstance or that modification was in the
children’s best interest.
In a report
filed with the court on April 17, 2012, Lynn James reported that L.G. was more
outgoing and there had been a “dramatic change†in her ability to
communicate. M.G. was also more vocal. Ms. James received positive reports about the
children’s progress at school and noted the support they received in the home
of Mr. and Mrs. N. She opined that
moving the children to live in Arizona with an extended family member they did
not know, would impede the forward progress they had made in their home and
school life. Both M.G. and L.G.
responded “Yes†when asked if they liked living with Mr. and Mrs. N.
Mother
filed a section 388 petition on April 16, 2012, asking the court to grant her
family reunification services, or in the alternative, order DCFS to place the
children with their adult sibling Rico.
On April 17, 2012, the court summarily denied the petition because it
did not state new evidence or a change of circumstances.
In an
interim review report filed July 17, 2012, DCFS reported that it was not in the
best interest of the children to be placed with Rico because they suspected
that Mother resided with Rico. DCFS did
not approve of placing the children with Veronica G. because she had not made
any efforts to contact DCFS to inquire about the children’s status and Father
stated he would move to Arizona if the children were placed with his sister.
In a report
dated July 17, 2012, Lynn James stated that the children were thriving in the
home of Mr. and Mrs. N. and it would be an excellent adoptive home for
them. She met with Rico and was
concerned because he did not have “the maturity to take on the responsibility
of raising two children requiring special support systems.†Ms. James had not met with Veronica G. in
Arizona but noted that neither Veronica G. nor her family had spent any time
with M.G. or L.G. It was her opinion
that if M.G. and L.G. were forced to change homes, schools, and states, it would
set both children back at a very important educational and personal growth time
of their lives.
In a last
minute information for the court, filed August 24, 2012, DCFS reported that on
July 25, 2012, a social worker made an unannounced visit to Rico’s home. The social worker could see shadows moving
inside the house through the closed screen door and heard a male voice say
“Mom.†Rico stated that Mother did not
reside with him. He appeared nervous and
his hands were shaking.
DCFS
strongly recommended that parental rights for Father and Mother be terminated
as it was detrimental for the children to return to the home of either
parent. Mr. and Mrs. N. were eager to
adopt M.G. and L.G. and the children had developed strong bonds with them. Both children told the social workers that
they wanted to stay with Mr. and Mrs. N.
and Father’s Section 388 Petitions (August
13, 2012)
Father filed a
petition stating that he had completed 25 domestic violence classes, 20
parenting classes, and participated in individual
counseling. He had also visited the
children as much as possible. He asked
the court to order family reunification services for him and stated it would be
in the children’s best interest because he and his children had “bonded†and had
a “loving relationship.â€
Mother’s
petition sought family reunification services, or in the alternative, placement
of the children with Rico. She stated
that she completed parenting classes and continued to participate in individual
counseling. She stated that any further
estrangement between her and her children would negatively impact the close
nature of the bond between her and her children.
388 Hearing
The court
first heard testimony regarding Mother’s section 388 petition. Rico testified that Mother was not at his
home when the social worker visited on July 25.
He testified that he could take care of the children and that his
22-year-old brother could babysit them while he was at work. L.G. testified that she liked Rico but when
asked if she would like to live with him responded, “No.†M.G. testified that if given a choice, he
would choose to live with Rico, because Rico was his brother and M.G. liked
him.
Mother’s
counsel argued that Mother made efforts to address her past problems and should
be given family reunification services.
If the court was not inclined to do so, then the children should be
placed with Rico. Counsel for DCFS
argued that despite having received years of counseling Mother had not advanced
from the stage of “marginal care†of the children, and characterized the
request to place the children with Rico as a “last-ditch effort to try to
salvage the situation.†Children’s
counsel noted that both children were thriving in their current placement and
it would not be in their best interest to change placement. Lynn James also testified that the children
were thriving in their current placement, and that while Rico had great
intentions, he was a young man who did not understand the requirements of two
special needs children.
The court
noted the long history of the case including the fact that in 2009 the children
were returned to Mother’s custody over DCFS’s objection. Mother demonstrated that she was not able to
take care of them. No family members had
come forward until after Mother’s family reunification services were
terminated, and the court stated that the preference now was for permanency
over family placement. The court noted
the reports that showed the children were doing well in their current placement
and the recommendation of the CASA representative. The court credited Mother for making efforts
to change but stated, “It’s too late now to make any changes that are not going
to be too upsetting for the children in the long run and that’s what I’ve got
to look at.†The court denied Mother’s
section 388 petition.
The court
then heard argument on Father’s section 388 petition. Father’s counsel argued that Father first
appeared in the case on January 18, 2011, and was not given reunification
services because Mother’s services had run out.
Since then Father had completed parenting classes, participated in
individual counseling, and enrolled in domestic violence classes. He further argued that DCFS’s objections and
concerns about Father were speculative.
Counsel for DCFS argued that Father was aware of the case since August
3, 2007, when the first dependency petition was filed. Father avoided coming to court and avoided
contact with DCFS. Children’s counsel
noted that Father was offered family reunification services in 2007 and failed
to take advantage of them. He had ample
opportunity over the years to get his children back and did not do so. In the meantime, the children had grown and
were doing well in their current placement.
The court
commended Father for his efforts but noted that he should have done more when
the case began in 2007 and the children were much younger. The court stated the children needed to have
a permanent home and people they could rely on to look out for their best
interest. The court denied Father’s
section 388 petition finding that it was not in the children’s best interest to
order reunification services for him.
Turning to
the section 366.26 portion of the hearing, the court heard testimony from M.G.,
L.G., and Mother. M.G. testified that he
played with Father and Mother during visits and would be sad if he could not
see them again. L.G. testified that she
would be sad if she could not see her parents and would like to live with
Mother. Mother testified she visited
M.G. and L.G. every week and the children were always happy when the visits
began and sad when the visits ended.
Mother’s
counsel argued there was a bond between Mother and the children and severance
of that bond would be detrimental to them.
Children’s counsel asked the court to terminate parental rights because
there was no applicable exception to adoption.
He pointed out that parents were having separate monitored visits and
they alternated each week. Parents had
not reached the point of unmonitored visits, much less overnight visits that
might provide the consistency and quality of contact to establish a bond that
would overcome the children being adoptable.
The court
found no exception to adoption applied to the case. The court stated that the parents had not met
their burden of showing how M.G. and L.G. would benefit from continuing the
relationship with Father and Mother. The
parents had “dragged their feet all the way along†and did not do what was
necessary to make sure the children were raised in a healthy stable home. The court concluded, “The parents are really
not doing anything benefitting to these children by . . . not letting
the children be adopted into a family that’s ready, willing and able to adopt
them.†The court terminated parental
rights, freed the children from parental custody and control, and identified
adoption as the permanent plan.
Mother and
Father both filed appeals, challenging the court’s order terminating their
parental rights, and the court’s denial of their respective section 388
petitions.
DISCUSSION
and Father contend the court abused its discretion in denying their petitions
for modification pursuant to section 388. Mother and Father also contend that the
beneficial parental relationship exception to termination of parental rights
found in section 366.26, subdivision (c)(1)(B)(i), applies in this case, and it
was error for the juvenile court to terminate their parental rights. They argue that termination of parental
rights would be detrimental because they have maintained regular visitation and
contact with the children. Mother
also contends that parental rights should not be terminated because it would
substantially interfere with the children’s sibling relationship. (§ 366.26, subd. (c)(1)(B)(v).)
II. Standard of Review
We review a juvenile court’s summary
denial of a section 388 petition for abuse of discretion. (In re
Aaron R. (2005) 130 Cal.App.4th 697, 705.)
Under this standard, a reviewing court must uphold the trial court’s
decision unless it determines from the record that the decision exceeded the
bounds of reason. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) “The denial of a
section 388 motion rarely merits reversal as an abuse of discretion.†(In re
Amber M. (2002) 103 Cal.App.4th 681, 685–686.)
When reviewing an order terminating
parental rights, we determine if substantial evidence supports 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; 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.)
Law
Section 388 allows the juvenile court to modify an order if
a party establishes, by a preponderance of the evidence, that changed
circumstances or new evidence exists and the proposed change would promote the
child’s best interest. (
Cal.App.4th 799, 806.) After reunification services have been
terminated, the focus is on the child’s need for permanency and stability; the
parent’s interest in the custody and companionship of the child is not
paramount. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) This is a
difficult burden to meet in many cases, but particularly so when, as here,
reunification services have been terminated.
(Ibid.)
A “‘changed
circumstance’†is one “‘that requires changing the [court’s] order’†because
the problems that initially led to the dependency of the child have been
resolved. (In re Edward H. (1996) 43 Cal.App.4th 584, 592.) A mere showing of “changing†circumstances
is not enough. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) “In determining whether the petition makes
the necessary showing, the court may consider the entire factual and procedural
history of the case. [Citation.]†(In re
Justice P. (2004) 123 Cal.App.4th 181, 189, citing In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450–1451.)
Section 366.26, Subdivision
“‘After
reunification services have terminated, the focus of a dependency proceeding
shifts from family preservation to promoting the best interest of the child
including the child’s interest in a “placement that is stable, permanent, and
that allows the caretaker to make a full emotional commitment to the
child. [Citation.]â€â€™â€ (In re
Jason J. (2009) 175 Cal.App.4th 922, 935.) Under section 366.26,
subdivision (c)(1), parental rights may be terminated if there is clear and
convincing evidence of adoptability, which is the preferred plan. (In re
Autumn H. (1994) 27 Cal.App.4th 567, 573.)
An exception to adoption exists where a parent has “maintained
regular visitation and contact with the child and the child would benefit from
continuing the relationship.†(§ 366.26,
subd. (c)(1)(B)(i).) “A beneficial
relationship is one that ‘promotes the well-being of the child to such a degree
as to outweigh the well-being the child would gain in a permanent home with
new, adoptive parents.’
[Citation.]†(
1200, 1206.)
The parents must show why the statutory
exception applies, and that termination would be detrimental to the child. (In re
Derek W. (1999) 73 Cal.App.4th 823, 826; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) They carry the burden of proving that the
children would be “greatly†harmed by termination of parental rights, and that
they hold a “parental†role with the child.
(In re Brittany C. (1999) 76
Cal.App.4th 847, 853–854; In re
Angel B. (2002) 97 Cal.App.4th 454, 466–468.)
Subdivision (c)(
Under section 366.26, subdivision (c)(1)(B)(v),
the juvenile court is directed first to determine whether terminating parental
rights would substantially interfere with the sibling relationship by
evaluating the nature and extent of the relationship, “including, but not
limited to, whether the child was raised with a sibling in the same home,
whether the child shared significant common experiences or has existing close
and strong bonds with a sibling, and whether ongoing contact is in the child’s
best interest, including the child’s long-term emotional interest, as compared
to the benefit of legal permanence through adoption.†(§ 366.26, subd. (c)(1)(B)(v).) “If the court determines terminating parental
rights would substantially interfere with the sibling relationship, the court
is then directed to weigh the child’s best interest in continuing that sibling
relationship against the benefit the child would receive by the permanency of
adoption. [Citation.]†(In re
L. Y. L. (2002) 101 Cal.App.4th 942, 952.)
To show a substantial interference with
a sibling relationship, the person opposing the termination of parental rights
“must show the existence of a significant sibling relationship, the severance
of which would be detrimental to the child.
Many siblings have a relationship with each other, but would not suffer
detriment if that relationship ended. If
the relationship is not sufficiently significant to cause detriment on
termination, there is no substantial interference with that relationship.†(In re
L. Y. L., supra, 101 Cal.App.4th at p. 952, fn. omitted.) To determine the significance of the sibling
relationship, the juvenile court considers the factors set forth in section
366.26, subdivision (c)(1)(B)(v). (
Appeal
Was No Abuse of Discretion When the Juvenile Court Denied Mother’s Section 388
Petition
sought additional family reunification
services. But while Mother may have
shown a change in circumstances she failed to show how the proposed
modification would be in the children’s best interest as required by the
statute. (§ 388.) M.G. and L.G. had numerous special needs and
developmental delays. They were
receiving the care they needed and were thriving in the home of Mr. and Mrs.
N. Both DCFS and the CASA representative
recommended the children remain placed with Mr. and Mrs. N.
Mother’s ability to take care of
M.G. and L.G. is undermined by her unfavorable prior history with DCFS. Mother’s relationship with DCFS was
characterized by her refusal to recognize that DCFS was acting in the
children’s best interest. She repeatedly
told DCFS that she did not want their help, wanted the case closed because the
children did not have any problems, and threatened to kidnap the children if
DCFS detained them. M.G. and L.G. were
first detained in 2007 and Mother received services for five years but was
unable to reunify with them. In 2009,
the juvenile court returned the children to Mother. During the short period of time Mother was
responsible for M.G. and L.G. she clearly demonstrated that she was unable to
care for them. She did not seem to
understand the significance of the fact that the children were not gaining
weight and chose to ignore the recommendations offered by the nutrition
consultant. Mother also failed to obtain
medical treatment for L.G.’s ongoing infection resulting in L.G.’s
hospitalization. When L.G. was
discharged Mother failed to make appointments for follow-up care. Mother was noncooperative with the children’s
schools and delayed their development because she was the holder of their
educational rights. Eventually the court
appointed a surrogate so that the children could receive the services they
needed.
Mother’s ability to protect the
children is questionable because her relationship with Father was erratic and
unpredictable. Mother repeatedly lied to
DCFS about her relationship and living arrangements with Father. She allowed him to visit the children at her
home in violation of the court order.
She argued with DCFS and defended Father’s right to see the
children. Mother repeatedly told DCFS
that Father was violent and she did not want him to have custody of the children. Even though she obtained a restraining order
against Father she continued to accompany him to visit the children. At Father’s request DCFS made arrangements
that Mother and Father visit the children separately. Shortly thereafter, despite Mrs. N.’s
objections, Mother and Father visited the children together.
More alarming than Mother’s apparent
inability to detect problems with her children was the fact that she continued
to deny the children were having any problems and refused to take advantage of
the services offered to her. In this
case, where reunification services had been terminated, Mother did not come
close to meeting the burden required. (In re Angel B.
Similarly,
removing the children from the home of Mr. and Mrs. N. and placing them with
their older sibling Rico, as Mother requested, would not be in the children’s
best interest. M.G. and L.G. required
special advocates to ensure they received necessary medical, dental,
psychological, educational, and developmental services. Both DCFS and the CASA representative recommended
the children remain placed with Mr. and Mrs. N. for that reason. In response to the court’s question asking
why he had not notified DCFS that he was willing to take care of the children
before Mother’s reunification services were terminated, Rico testified that
when the children were detained in 2010 he did not have a job, and was not sure
he could take care of them at the time.
DCFS argued that Rico’s late offer to be the children’s caretaker was an
effort to keep the children where Mother could have access to them because when
they made unannounced visits to Rico’s home they suspected Mother was
present. Whether DCFS’s characterization
of Rico’s intent was accurate or not, the overriding concern is what best benefits
M.G. and L.G. There was no evidence
presented that Rico had the ability to provide M.G. and L.G. with the necessary
care they required and the children would not benefit from upsetting the stable
relationship they developed with Mr. and Mrs. N.
Considering the children’s best
interest in light of the entire factual and procedural history of the case (
at p. 189), the dependency court did not abuse its discretion in denying
Mother’s petition for a modification.
of Mother’s Parental Rights
“Benefit to the Child†Exception
both prongs of the exception: regular
visitation and a benefit to the children if the relationship were
continued. (§ 366.26, subd.
(c)(1)(B)(i).) As to the first prong, Mother’s visitation
has been consistent. But the children’s
relationship with Mother is not so substantial that they would be greatly
harmed if it were severed, and we find that the trial court’s decision to
terminate parental rights was supported by substantial evidence.
The decision to terminate parental
rights in this dependency case was not one hastily made. The case lasted for five years before
parental rights were terminated. From
the outset, the juvenile court stressed the importance of enrolling and
participating in the services offered by DCFS and warned Mother that the
services would be terminated if she did not show significant progress. Despite having lost custody of her three
older children in 2002 because she used methamphetamines, and testing positive
in 2007 for amphetamines and methamphetamines when M.G. and L.G. were first
detained, Mother
emphatically denied drug abuse. Mother
and Father have a history of domestic violence.
As late as November 2011, more than four years after the children were
first detained, Mother sought a restraining order against Father.
At times Mother was granted
unmonitored visitation with the children during the five years of receiving
family reunification services. But as a
result of Mother’s defiant and uncooperative attitude and her violation of
court orders she was unable to have continuous unmonitored, weekend or extended
visits, let alone custody of the children.
A showing that a child would be greatly harmed by termination of parental
rights is difficult to make when, as here, “the parents have
. . . [not] advanced beyond supervised visitation.†(In re
Casey D. (1999) 70 Cal.App.4th 38, 51.)
A true parental relationship would not require a third party to monitor
parent-child visits.
that she has consistently visited the children, and interacted “positively
throughout the visitations.†But even
frequent and loving contact between parent and child is not sufficient to
establish the requisite benefit to the child if Mother does not occupy a
parental role and is unable to take custody.
(In re Teneka W. (1995) 37
Cal.App.4th 721, 728; In re Beatrice M.
(1994) 29 Cal.App.4th 1411, 1418–1419; In
re Andrea R. (1999) 75 Cal.App.4th 1093, 1108–1109.) While the children are bonding with their
prospective adoptive parents, Mother has not progressed to the point where she
can have unmonitored or overnight visits, even if the visits are enjoyable for
Mother and the children. A relationship
that is “pleasant†is not enough to establish a benefit to the child because “it
bears no resemblance to the sort of consistent, daily nurturing that marks a
parental relationship.†(
p. 827.) “Interaction between natural
parent and child will always confer some incidental benefit to the child.†(In re
Autumn H., supra, 27 Cal.App.4th at p. 575.)
The DCFS and CASA
representative reports showed that the children interacted minimally with their
parents. Mother lacked the parenting
skills necessary to be assertive and discipline the children and the children
appeared to be in control. Even though
both children had developmental, speech and socialization issues, Mother did
not encourage them to interact with other children and left them to play alone.
Mother emphasizes the significance
of the children’s testimony that they wanted to live with her. But apart from the incidental benefit of
parent-child interaction, we must consider “the many variables which affect a
parent/child bond. The age of the child,
the portion of the child’s life spent in the parent’s custody, the ‘positive’
or ‘negative’ effect of interaction between parent and child, and the child’s
particular needs are some of the variables which logically affect a
parent/child bond.†(
at p. 576.) M.G. was three years old and
L.G. was two years old when they were detained.
Both of the children showed signs of neglect and were diagnosed with
numerous developmental disabilities when they were removed from Mother’s
custody. The time the children spent
with Mother could hardly be described as positive. By way of contrast, the children were
thriving with Mr. and Mrs. N. Mother did
not carry her burden of showing that the children would be greatly harmed by
the termination of her parental rights, or that the benefits of continuing
their relationship outweighed the benefits of a stable, permanent home. Where, as here, the children are likely to be
adopted, the court must choose adoption over a guardianship to give them “the
most permanent and secure alternative that can be afforded them.†(In re
Beatrice M., supra, 29 Cal.App.4th at p. 1419.)
2. The “Sibling
Relationship†Exception
Mother contends the sibling relationship exception applies in this case. She argues that parental rights should not be
terminated if a “substantial interference with a child’s sibling relationshipâ€
would be detrimental to the children. (§
366.26, subd. (c)(1)(B)(v).) Mother
did not raise this argument below. DCFS
asserts that Mother has therefore waived the argument on appeal. Mother argues that raising the sibling
exception would have been futile because the court had rejected placement of
the children with Rico when denying Mother’s section 388 petition.
Facing a similar situation, the
Court of Appeal in In re Erik P.
(2002) 104 Cal.App.4th 395 stated: “The
application of any of the exceptions enumerated in section 366.26,
subdivision (c)(1) depends entirely on a detailed analysis of the relevant
facts by the juvenile court.
[Citations.] If a parent fails to
raise one of the exceptions at the hearing, not only does this deprive the
juvenile court of the ability to evaluate the critical facts and make the
necessary findings, but it also deprives this court of a sufficient factual
record from which to conclude whether the trial court’s determination is
supported by substantial evidence.
[Citation.] Allowing the [parent]
to raise the exception for the first time on appeal would be inconsistent with
this court’s role of reviewing orders terminating parental rights for the
sufficiency of the evidence. Therefore,
the [parent] has waived [the] right to raise the exception. [Citation.]â€
(Id. at p. 403.)
Mother did not raise the sibling
relationship exception during the section 366.26 portion of the hearing
below. Both Mother and Father’s
respective counsel argued that parental rights should not be terminated based
only on the beneficial parent-child relationship exception (§ 366.26,
subd. (c)(1)(B)(i)), and this was the only argument addressed by the court. Accordingly, Mother has forfeited the
argument on appeal.
Even if the testimony from Rico and
the children during the combined hearing overcomes waiver and forfeiture, this
argument fails on its merits. The
sibling relationship exception contains strong language creating a heavy burden
for the party opposing adoption. It only
applies when the juvenile court determines that there is a “‘compelling
reason’†for concluding that the termination of parental rights would be
“‘detrimental’†to the child due to “‘substantial interference’†with a sibling
relationship. (In re Daniel H. (2002) 99
Cal.App.4th 804, 813, quoting § 366.26, subd. (c)(1).)
Mother failed to present any
evidence at the combined hearing that the need for sibling bonds would outweigh
the benefits of adoption. (§ 366.26,
subd. (c)(1)(B)(v); see In re Erik P.,
supra, 104 Cal.App.4th at p. 403.)
In other words, Mother failed to satisfy her heavy burden of proof for
the exception to apply.
V. Father’s Appeal
A. There Was No Abuse of Discretion When
the Juvenile Court Denied Father’s Section 388 Petition
Father contends
he made the required showing of (1) changed circumstances, and (2) that the
proposed modification would be in the children’s best interest. (§ 388.)
DCFS argues that Father’s participation in domestic violence counseling
during the months prior to the combined section 388 and section 366.26 hearing
in August 2012, cannot be considered a change in circumstances.
In Father’s
section 388 petition filed on August 13, 2012, which is relevant to this
appeal, he stated that he completed 25 domestic violence classes. He attached a progress report from the
Neighborhood Family Center which showed that he enrolled in the
52-week program on February 7, 2012.
Relying in part on this evidence, Father argues in his opening brief
that his completion of “eight months of individual counseling for domestic
violence/anger management, and six months of a domestic violence program showed
there had been a change of circumstances.â€
DCFS argues
that Father waited too late, i.e., until 2012, to enroll in domestic violence
counseling. In his reply brief, Father
argues he “did not wait until 2012 to enroll in domestic violence counseling. Father successfully completed about nine
months of individual counseling for domestic violence in 2011. He then started more domestic violence
counseling in 2012.†Father directs us
to a progress report dated September 12, 2011, from Drew Child Development
Corporation that showed Father was enrolled in “Individual Counseling/Anger
Management†classes that began on January 11, 2011. An earlier progress report dated July 18,
2011, described the services offered to Father as “Domestic Violence/Anger
Management.†The progress reports state
that Father’s attendance was “good†but do not state whether Father completed
the required number of sessions.
Furthermore, the reports do not describe what aspects of domestic
violence were addressed in the counseling sessions.
In our view,
regardless of whether Father made the sufficient showing of changed
circumstances, the proposed modification was not in M.G. and L.G.’s best
interest. The factors for evaluating a
section 388 petition are set forth in In
re Kimberly F. (1997) 56 Cal.App.4th 519, 532: the seriousness of the problem leading to the
dependency; the strength of relative bonds between the child and both the
parent and the caretaker; and the degree to which the problem may be/has been
easily removed.
Domestic
violence was one of the problems that initially led to M.G. and L.G.’s detention and
Father’s relationship with Mother was characterized by incidents of domestic
violence. Mother initially denied it was
a problem and ironically it was Father who first alerted DCFS in October 2007
to its existence, resulting in an amended dependency petition. Mother later testified in court that Father
hit her in front of the children but declined to give further details. Father refused to undergo court ordered
domestic violence counseling and his family reunification services were
terminated in May 2008. Mother did not
want the children to reunify with Father because of his violent behavior. Father did not undergo domestic violence
counseling when M.G. and L.G. were first detained. He did not do so when the children were
returned to Mother’s custody in March 2009, nor did he do so when the children
were detained for a second time in October 2010. He told DCFS that domestic violence
counseling classes were a waste of his time and money. Mother and Father argued during visits
causing M.G. and L.G. to cry. Mother was
seeking a restraining order against Father in November 2011, more than four
years after the children were first detained.
Father argues that the issue of
domestic violence is resolved and contends there was no evidence other than
Mother’s allegation that an incident occurred on April 13, 2011. That contention is contradicted by Father’s
own admission. On May 17, 2011, Father
withdrew his first section 388 petition because the domestic violence program Father
claimed to have completed was five years old.
Father explained to DCFS that he could not provide the necessary
documentation because he moved out of the home on April 13, 2011, because of domestic violence.
The evidence described above
pertained to the first and third Kimberly
F. factors—the seriousness of the problems leading to the dependency, and
the degree to which those problems have been ameliorated. (In re
Kimberly F., supra, 56 Cal.App.4th at p. 532.) In contrast to Father’s arguments, the evidence
showed that the problems that led to the dependency have not been fully
ameliorated, and that the children remained at risk from Father’s behavior.
The last factor under Kimberly F. is the strength of the relative bonds between the
dependent children and both the parents and the caretakers. (In re
Kimberly F., supra, 56 Cal.App.4th at p. 532.) Father was either absent from the children’s
lives for large periods of time during the five-year duration of this case, or
when he was present he was unable and unwilling to recognize and remedy the
health, educational, and psychological deficits his children encountered. Nothing in Father’s current monitored visits
with M.G. and L.G. suggested that he stood in a parental role with them. The existence of an emotional bond with the
children by itself, is insufficient. (
at p. 1108.) On the other hand, the
children were doing well and had experienced no difficulties adjusting to their
placement with Mr. and Mrs. N. or being apart from Father.
The court properly determined it was
not in the children’s best interest to grant Father family reunification
services.
of Father’s Parental Rights
Father contends the evidence
demonstrates M.G. and L.G. would benefit from continued contact with him given
they had positive visits and he felt they shared a strong bond and a
significant relationship. Father asserts
the children enjoyed his visits and looked forward to seeing him. But a successful parental benefit exception
claim rests not on whether the parent/child contacts ‘“confer some incidental benefit
to the child[,]’†but on whether the person “occupied a parental
role†in the child’s life. (
at pp. 1418, 1419.) Here, at best Father
established he had pleasant contacts with M.G. and L.G. but did not show they
would be greatly harmed if the relationship was severed.
re Amber M., supra, 103 Cal.App.4th 681, illustrates the compelling
evidence necessary to establish the benefit exception. There, the court reversed termination of
parental rights where a psychologist, therapists, and the court-appointed
special advocate uniformly concluded “a beneficial parental relationship . . . clearly
outweigh[ed] the benefit of adoption.†(
“strong primary bond†with their mother, and the younger child was “very
strongly attached to her.†(
If the adoptions had proceeded, the children would have been adopted in
separate groups. (Id. at pp. 690–691.)
Here, Father did not demonstrate
harm would have ensued from termination of parental rights similar to that
demonstrated in Amber M. At the permanency stage, the bond the
child shares with the parent and the harm that might arise from terminating
parental rights must be balanced against what is to be gained in a permanent
stable home, and “it is only in an extraordinary case that preservation of the
parent’s rights will prevail over the Legislature’s preference for adoptive
placement.†(In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The parental benefit exception will apply
only w
| Description | Appellants Michelle S. (Mother) and Pedro G. (Father) appeal from the dependency court’s denial of their petitions for modification (Welfare and Institutions Code section 388)[1] and from the order terminating their parental rights to their son M.G. (now age eight) and their daughter L.G. (now age seven). They contend the court abused its discretion in denying their section 388 petitions. They also contend their parental rights should not have been terminated because they visited regularly and the children would benefit from continuing the family relationship. (§ 366.26, subd. (c)(1)(B)(i).) Mother contends that the court failed to apply the sibling benefit exception to the statutory preference for adoption. (§ 366.26, subd. (c)(1)(B)(v).) We find no error in any of the court’s orders and affirm. |
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