In re M.H.
Filed 7/24/12 In re M.H. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
In re M.H., A Person Coming
Under the Juvenile Court Law.
B236841
(Los Angeles County
Super. Ct. No. CK83762)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.K.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court of
County, Amy Pellman, Judge.
Affirmed.
Judy
Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel, and
Travey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
Appellant
M.K. (Mother) is the mother of M.H. (M.), a boy, currently eight years old. Mother appeals the juvenile court’s orders
terminating parental rights and summarily denying her last-minute petition for
modification. Finding no error, we
affirm.
A. Prior
Appeal
The
(DCFS) became involved with the family in April 2009, when Mother threatened to
kill a four-year old classmate of M., who was then five. M. was detained and DCFS filed a Welfare and
Institutions Code section 300 petition, alleging that Mother’s mental and
emotional instability rendered her unable to care for M.
adjudicated, the parties entered into a mediated agreement under which the
petition was amended to state that Mother’s “overly protective behaviorsâ€
placed M. “in danger of emotional harm.â€
The court found the allegation true under section 360, subdivision (b),
which permits the court, if it “finds that the child is a person described by
Section 300,†to order, “without adjudicating the child a dependent child of
the court, . . . that services be provided to keep the family
together and place the child and the child’s parent or guardian under the
supervision of the social worker . . . .†The court returned M. to Mother under DCFS
supervision and ordered her to participate in individual counseling and an
Although
Mother had agreed to the language of the petition and to the essential
components of the disposition, she filed an appeal seeking to “cancel the
decision made by [the] Judge.â€
name="_ftnref2" title="">[2] In addition, she failed to comply with the
mediated agreement: she obstructed the
caseworker’s access to M. by refusing to answer the door when the caseworker
came to her apartment, participated only briefly in parenting and anger
management programs, and refused to undergo individual counseling or even to
speak to a psychologist when the caseworker attempted to introduce her to one. Based on Mother’s refusal to allow access to
M., in July 2009, DCFS re-detained M. and placed the child in foster care. In August, DCFS filed an amended petition
based on Mother’s noncooperation. The
court found the revised allegation true and ordered M. placed back with Mother
under continued DCFS supervision. Before
that order could be implemented, however, the foster mother noticed unusual
bruising on M.’s legs. M. reported that
Mother had “flicked†his legs with her fingers, and that during an unmonitored
visit, Mother had left him alone in a fast food restaurant while she went next
door to buy him a band-aid.
DCFS filed a
subsequent petition. At the October and
November 2009 jurisdictional hearing, the court found true that Mother had
“used inappropriate physical discipline, by flicking the child’s legs with her
hand[,] and inflicting bruises†and that she had placed M. in a “detrimental
and endangering situation†by leaving him in a restaurant without adult
supervision. For disposition, the court
ordered Mother to undergo a psychological
examination and to participate in individual counseling.
dispositional orders. By opinion dated September
15, 2010, we
affirmed the court’s orders.
B. Review
Hearings
In
May 2010, while the appeal was pending, the court held the six-month review
hearing. The caseworker reported that
Mother had refused to undergo a psychological evaluation or to participate in
January through March 2010 because she did not approve of the foster parents’
race. Team decision meetings were held
in January, March and April to advise Mother what she needed to do to regain
custody. At one such meeting, Mother had
an angry outburst when the need for a psychological evaluation was brought
up. During this period, Mother accused
the caseworker of conspiring against her and generally refused to take the
caseworker’s calls. M. was described as
doing well in foster care. He had become
toilet trained and had begun dressing himself, brushing his teeth, combing his
hair, and organizing his room. M. stated
that he was happy in the foster home, but missed Mother and enjoyed seeing
her. During visits, Mother was observed
feeding M., helping him in the bathroom, and scrubbing his face and hands,
although he was capable of doing those things himself. Because Mother had completed parenting and anger
management classes, the court found that she had made “moderate but incompleteâ€
progress toward alleviating the causes of detention and continued reunification
services for an additional six months.
The 12-month
hearing was held in January 2011. The
caseworker reported that Mother was visiting M. weekly. During the visits, Mother and M. said “I love
you†and “I miss you†to each other. M.
said he enjoyed the visits and looked forward to seeing Mother and wanted to
live with Mother. The monitor described
their bond as “strong,†but noticed that M. appeared reserved and quiet around
Mother. Mother occasionally “doz[ed]
off†during the visits and occasionally walked away from M. without saying
anything to the monitor, causing the monitor to wonder if Mother could be
trusted to stay with M. during an unmonitored visit. In addition, Mother continued to treat M. as
if he were younger and less capable than he was, ordering food for him without
asking what he would like to eat or drink, feeding him, insisting that he eat
everything she bought for him, carrying him, and reading him the same book over
and over. She sometimes interrogated M.
about the foster home, putting him in an uncomfortable position. M. spent a lot of the visitation time playing
alone and entertaining himself.
Mother
continued to refuse to undergo counseling or a psychological evaluation. She stated she did not believe in counseling
because it was “satanic†and against her Christian beliefs. Even bringing up the subject caused her to
become angry and upset. DCFS recommended
that the court order six more months of services and give DCFS discretion to
liberalize visitation. The court warned
Mother that if she did not undergo counseling, M. would not be returned, and
gave DCFS permission to liberalize visitation if Mother began participating and
making progress in counseling.
Prior to the
18-month review hearing, the caseworker reported that M. had begun to call his
foster mother “Mom.†He had stopped
saying he wanted to return to Mother and instead stated he wanted Mother to
live with him in the foster home. During
visitation, he no longer appeared comfortable around Mother. She continued to feed him and offer to carry
him as if he were a younger child. There
was no evidence that Mother had undergone any individual counseling as she
refused to communicate with the caseworker about this topic. DCFS recommended that reunification services
be terminated. At the April
6, 2011
review hearing, Mother’s counsel reported that she had begun counseling. However, Mother informed the court that she
could not undergo counseling. Because of
this discrepancy and because Mother appeared to be having trouble communicating
through the translator, the court ordered a mediation to ensure that Mother
understood the case plan.
Prior to the
mediation, the caseworker learned that Mother had spoken on three occasions
with Dr. Donald Mortenson, the pastor for a local church who held a degree in
counseling but was unlicensed. After
three sessions, she refused to see him anymore or to accept his referral to a
licensed counselor. Dr. Mortenson
expressed the opinion that Mother feared being diagnosed with a mental
illness. Mother had said to the
caseworker: “‘If I am that crazy to
receive counseling, I should not be a mother to the child.’†At the mediation held on April 20, Mother
asked that the individual counseling requirement be eliminated.
At the
continued 18-month review hearing held on April 29, 2011, Mother testified that she had
stopped attending counseling with Dr. Mortenson because of a language barrier
and cultural differences. She stated she
could not participate further in counseling because “God said ‘no.’†She also stated that she “tried [counseling]
many times,†but that the people she talked to believed the caseworker rather
than her, which made her uncomfortable.
The court concluded that Mother had not made sufficient progress,
terminated reunification services, and set a section 366.26 hearing to consider
termination of parental rights.
Between April
2011 and October 2011, Mother visited M. only three times. During the visits, she continued to buy food
for him without his input and to feed him rather than letting him eat
independently. She tried to help him
with his homework and got loud and impatient if he did not answer quickly
enough. M. did not communicate or
interact with Mother very much. M.
stated that Mother embarrassed him and made him feel uncomfortable. However, he continued to hug her and tell her
he loved her at the end of the visits.
The caseworker discussed the prospect of adoption with M. At first he stated he wanted to live in the
foster home, but still see Mother. The
second time the caseworker brought up the topic, he stated that he wanted to be
adopted by his foster parents. The
foster parents, with whom M. had lived since 2009, had consistently expressed
their desire to adopt him if reunification efforts failed. DCFS recommended termination of parental
rights and adoption as the permanent plan.
On October
11, 2011,
the day of the section 366.26 hearing, Mother filed a section 388
petition. The petition stated that
Mother had “made a commitment to pursue individual counseling or whatever
program the Court deem[ed] appropriate,†but had found that it was too
expensive. The petition asked for
reinstatement of reunification services so that Mother could access low cost or
no cost services. At the same time, she
asked that the court “amend the case plan to exclude individual
counseling.†The court summarily denied
the petition on the ground it did not “state new evidence or a change of
circumstances.â€
At the section
366.26 hearing, M. testified that he would like to continue to see Mother and
would be sad if he could not see her anymore.
When asked if he wanted to be adopted, he initially stated “I don’t
know†and subsequently said “yes,†explaining that he liked his foster mother
and wanted to live with her. Counsel
stipulated that if Mother testified, she would say that visiting M. required
her to undertake a six-hour round trip.
During visits, she read to M., helped him with his homework, fed him,
and played with him. She also provided
him with clothing. M. was excited to see
her, greeted her with a big smile, and stated that he loved her and wanted to
go home with her. When the visits were
over, M. did not want to leave. Counsel
for Mother argued that she and M. had a beneficial relationship and that
severing the parental bond would harm M.
Counsel for M. joined DCFS’s counsel in arguing that parental rights
should be terminated and M. freed for adoption.
The court terminated parental rights, finding that although Mother and
M. loved each other, their visits had not been regular or positive, that the
relationship was not so strong that it would be detrimental to M. to sever it,
and that the benefits of continuing the parent/child relationship did not
outweigh the benefits to M. of obtaining a stable, permanent home. Mother appealed.
DISCUSSION
A. Summary
Denial of Petition for Modification
“Section 388
permits ‘[a]ny parent or other person having an interest in a child who is a
dependent child of the juvenile court’ to petition ‘for a hearing to change,
modify, or set aside any order of court previously made or to terminate the
jurisdiction of the court’ on grounds of ‘change of circumstance or new
evidence.’ (§ 388, subd. (a).) ‘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 . . . .’ (
(d)].) Section 388 thus gives the court
two choices: (1) summarily deny the
petition or (2) hold a hearing. [Citations.]†(In re
Lesly G. (2008) 162 Cal.App.4th 904, 912.)
“‘[I]f the petition fails to state a change of circumstances or new
evidence that might require a change of order, the court may deny the
application ex parte. [Citation.]’†(Ibid.,
quoting In re Jamika W. (1997) 54
Cal.App.4th 1446, 1450.)
“In order to avoid summary denial, the
petitioner must make a ‘prima facie’ showing of ‘facts which will sustain a
favorable decision if the evidence submitted in support of the allegations by
the petitioner is credited.’†(
rule 5.570(d)(1).) “‘There are two parts
to the prima facie showing: The parent
must demonstrate (1) a genuine change of circumstances or new evidence, and
. . . (2) [that] revoking the previous order would be in the
best interests of the [child].
[Citation.]’†(
1075, 1079, quoting In re Anthony W.
(2001) 87 Cal.App.4th 246, 250.) As “the
essence of a section 388 motion is that there has been a change of
circumstances,†the court should consider “the nature of the change, the ease
by which the change could be brought about, and the reason the change was not
made before . . . .†(
519, 531.) An appellate court reviews
the juvenile court’s summary denial of a section 388 petition for abuse of
discretion. (In re C.J.W., supra, at
p. 1079.)
Mother
contends the petition established a prima
facie case to sustain a favorable determination, triggering the right to a
full hearing on her section 388 petition.
We disagree. The petition did not
demonstrate a genuine change in circumstances.
Mother stated that she was ready to begin counseling, but she had made
that promise multiple times before. The
first occasion was in June 2009, when she agreed, after mediation, to a
disposition that included individual counseling. She failed to undergo any counseling at that
time and for a period of time sought to overturn that disposition on
appeal. The second occasion was at the
detention hearing on the August 2009 supplemental petition, when she agreed to
cooperate with DCFS and to participate in services. Immediately thereafter, she sought to
“‘cancel[] everything.’†Mother made no
subsequent effort to undergo individual counseling until the eve of the
18-month review hearing, when she was seen briefly by Dr. Mortensen. However, after three sessions, she refused to
continue with him or to accept his referral to a licensed therapist. Mother’s section 388 petition contained
nothing to indicate that this time she was sincere and would follow through
with her promise. To the contrary, the
request that the reunification plan be amended to delete the requirement for individual counseling demonstrated that
Mother continued to believe she had no psychological
problems that needed addressing before she could be trusted with M.’s
care.
Moreover, even
if the court found true that Mother sincerely desired to deal with the psychological
issues that led to M.’s detention, a petition filed at the last minute must do
more than indicate that the offending parent is ready to begin the process of
reunification. By the time of the
section 366.26 hearing, the court’s focus must shift from the parents’ rights
to custody of and authority over their children to “the needs of the child for
permanency and stability.†(
309.) “Childhood does not wait for the
parent to become adequate.
[Citation.]†(
[parent’s “flurry of activity on the eve of†the 18-month review hearing, where
she had failed in every respect until then to comply with the reunification
plan, did not require court to extend reunification services or delay section
366.26 permanent planning hearing].)
DCFS first began working with Mother in April 2009. She was provided several months of services
before M. was detained and was subsequently given more than 18 months to
complete the reunification program. Even
if Mother’s word could be trusted, her petition established at best that she
was ready to begin the process of reunification. “A petition which alleges merely changing
circumstances and would mean delaying the selection of a permanent home for a
child to see if a parent, who has repeatedly failed to reunify with the child,
might be able to reunify at some future point, does not promote stability for
the child or the child’s best interests.â€
(In re Casey D. (1999) 70
Cal.App.4th 38, 47.) The court’s
conclusion that Mother’s section 388 petition did not establish a prima facie
case that a change of its prior orders would be in M.’s best interests did not
represent an abuse of discretion.
B. Termination
of Parental Rights
Section
366.26, subdivision (c)(1) requires the juvenile court to terminate parental
rights and order the dependent child placed for adoption if it finds by clear
and convincing evidence that the child is likely to be adopted, unless it finds
“a compelling reason for determining that termination would be detrimental to
the child†due to the existence of certain specified exceptional
circumstances. (See § 366.26, subd.
(c)(1)(B).) Once the court determines
that a child is likely to be adopted, the burden is on the parent to
demonstrate that termination of parental rights would be detrimental to the
child under one of the exceptions listed in section 366.26, subdivision
(c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) “Because adoption is more secure and permanent
than a legal guardianship or long-term foster care, adoption is the
Legislature’s first choice for a permanent plan for a dependent minor child who
has not been returned to the custody of his or her parents and who is found by
the dependency court to be adoptable.†(
452, 469.) “[I]t is only in exceptional
circumstances that a court will choose a permanent plan other than
adoption.†(Ibid.)
Mother
contends the evidence established that the exception contained in section
366.26, subdivision (c)(1)(B)(i) applied.
Subdivision (c)(1)(B)(i) provides an exception to terminating parental
rights where “[t]he parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship.†The subdivision (c)(1)(B)(i) exception is
established by evidence of a significant, positive emotional attachment of the
child to the parent. (
823, 827; In re Elizabeth M. (1997)
52 Cal.App.4th 318, 324.) To support a
finding of “benefit†under subdivision (c)(1)(B)(i), of section 366.26, the
parent-child relationship must do more than confer some “incidental benefit†to
the child; it must “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. (1994) 27 Cal.App.4th 567, 575.) The parents must not only demonstrate
“‘frequent and loving contact’ [citation], an emotional bond with the child, or
that the parents and child find their visits pleasant [citation]â€; they “must
show that they occupy ‘a parental role’ in the child’s life.†(In re
Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109, quoting
1411, 1418-1419.) Only “[i]f severing
the natural parent/child relationship would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly harmed,†can
the preference for adoption be overcome and parental rights maintained. (In re
Autumn H., supra, at p.
575.)
The exception
to termination of parental rights and adoption “must be examined on a
case-by-case basis, taking into account 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.†(
to determine whether substantial evidence supports it, construing the evidence
most favorably to the prevailing party and indulging in all legitimate and
reasonable inferences to uphold the court’s ruling. (In re
Misako R. (1991) 2 Cal.App.4th 538, 545; but see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [concluding that
in reviewing whether parent has established a section 366.26, subdivision
(c)(1) exception, “the abuse of discretion standard is in order†because
juvenile court “is determining which kind of custody is appropriate for the
child,†but finding little “practical differences between the two standards of
reviewâ€].)
Mother
contends the court’s finding that visits were not regular was not supported by
substantial evidence. The evidence
established that there were several breaks in Mother’s general pattern of
weekly visitation, most recently the four-month period between the 18-month
review hearing and the section 366.26 hearing when Mother visited M. only three
times. Accordingly, the juvenile court’s
finding was supported. Moreover, even
were we to agree that Mother met the first prong of the section 366.26,
subdivision (c)(1)(B)(i) exception -- regular visitation -- we would not
reverse the juvenile court’s decision.
Mother and M. were together for the first five years of his life and for
a period continued to share a close bond.
However, the evidence established that the original bond between Mother
and M. had been weakened by the repeated detentions and the years of
separation. M.’s visits with Mother had
become less positive and enjoyable for M. as Mother continued to treat M. as if
he were still a five-year old, failing to recognize his growing maturity and
need for independence. Mother’s behavior
during the visits had become a source of embarrassment and discomfort for
M. The foster family provided a safe,
stable and structured home, where M. was thriving. M. had begun to view the foster mother as his
“mom†and the foster home as his home.
There was no evidence M. would suffer harm from severing the
relationship with Mother. This case did
not present the exceptional circumstances requiring the court to choose a
permanent plan other than adoption.
DISPOSITION
The
orders are affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
Undesignated statutory
references are to the Welfare and Institutions Code.
Mother did not prosecute the
appeal, which was subsequently dismissed.
