In re T.T.
Filed 9/9/13 In re T.T. CA4/2
TO BE PUBLISHED IN 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
In
re T. T., a Person Coming Under the Juvenile Court Law.
RIVERSIDE
COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
C.
T.,
Defendant and Appellant.
E057720
(Super.Ct.No. SWJ1100174)
OPINION
APPEAL from
the Superior Court of
County. John M.
Monterosso, Judge. Affirmed.
Rich
Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J.
Walls, County Counsel, and Julie Koons Jarvi, Deputy County
Counsel, for Plaintiff and Respondent.
C. T.
appeals an order terminating her parental
rights and freeing her son, T. T., for adoption. She contends that the juvenile court abused
its discretion by denying her a hearing on her petition for modification of the
order terminating services, that she was denied due process at the hearing on
termination of her parental rights, and that the court should have found that
the beneficial parental relationship exception to the preference for adoption
applies.
We will
affirm the judgment.
FACTUAL AND PROCEDURAL
HISTORY
On March 14, 2011, the
Services (DPSS) received a referral concerning C. T.’s six-year-old
daughter, P. T. C. T. had been arrested
on February 18, 2011, for criminal threats to a neighbor, and was apparently
unable to locate P. T. upon her release from custody. C. T. had told the officer who arrested her
that she wanted P. T. to go to the home of her cousin, who lived in the same
apartment complex. However, the cousin
gave the child to another relative, who gave her to another relative, who gave
her to her alleged father, S. J. P. T.
was eventually located at the home of her father’s cousin in San Bernardino
County. She was taken to a police
department and was retrieved by DPSS. C.
T. had taken two-year-old T. T. to his aunt and uncle’s house the day before
she was arrested. She had picked him up
on March 11, 2011.
The social worker went to C. T.’s
apartment on March 14 accompanied by two Hemet police officers. The home was in reasonably good condition and
T. T. appeared well cared for. C. T.
explained the basis for the criminal threats charge. She informed the social worker that she was
on probation, apparently as a result of an arrest in September 2007 for
attempted kidnapping, assault with a deadly weapon, great bodily injury, and
“grand criminal threats.†She had told
police that she had been involved in some domestic violence during her
relationship with S. J.
C. T. told the social worker that she had
been diagnosed with bipolar disorder when she was 23. She said she had graduated from Mental Health
Court in January 2011. Upon being asked
to show the social worker her medications, C. T. produced a bag from a “top
shelf†in her bedroom. The bag contained
numerous pills, “not in any sort of labeled, child proof container.†C. T. said she knew what each pill was, that
she did not need all them, but kept them “in case someone else might need
them.†In response to the social
worker’s concern that the pills were accessible to the children, C. T. stated
that her children “are very smart and know better.†She also stated that she was unemployed and
kept the children under constant supervision.
When C. T. dumped the contents of the bag
onto the floor, the social worker and the police officers could see checks and
an identification card that did not belong to C. T. C. T. said she did not know why they were in
her bag or where they had come from. The
officer verified that submission to searches was a term of C. T.’s probation
and searched the apartment. He
discovered another check made out to someone other than C. T. or a relative and
endorsed by someone other than C. T. or a relative. C. T. said that she and a family member found
the check in an ATM machine in Ontario around Christmas. She said she thought the ATM machine was
“talking to her,†and when she went to see if it was, she found the check. She took the check home to show
everyone. She had forgotten that it was
in the apartment. The police officer verified
that the check was stolen and placed her under arrest.
P. T. told the social worker that she was
taught to hide if the police came to the house.
She said that T. T. would get “whoopins†and would get “popped in the
mouth†and hit with a belt with his pants down if he misbehaved. She said her mother had a lot of pills. P. T. described how to roll “weed†into a “blunt,â€
but attributed this knowledge to her observations at her father’s house. P. T. said she took care of T. T. “all the
time.â€
On March 16, 2011, a Welfare and
Institutions Code
name="_ftnref2" title="">[2] section 300 petition was filed as to both
children.
title="">[3]
The children were ordered detained on March 17, 2011, and were placed
together in a foster home.
P. T. was in kindergarten, but because of
sporadic school attendance, she was a year behind in reading and other
skills. T. T. appeared to have a speech
impediment or delay, but he was able to clearly articulate a variety of curse
words. He attempted to lock the foster
mother out of the house several times.
He also attempted to bite his sister and other foster children.
C. T. had mental health issues for which
she took medication. She also had a
significant problem with anger management.
Her belligerence had resulted in conflicts with neighbors and several
arrests and convictions, including assault with a deadly weapon, attempted
kidnapping and vandalism. She was also
belligerent and oppositional with DPSS staff, and her behavior often disrupted
visits with the children. However, after
several weeks of consistent visitation, C. T. became more cooperative and
appeared to be “settling down.â€
On May 24, 2011, the juvenile court found
that P. T. came within section 300, subdivision (b), and that T. T. came within
section 300, subdivisions (b) and (g).
It was ascertained that the children are not Indian children, and the
juvenile court found that the Indian Child Welfare Act does not apply. Reunification services were ordered for C.
T., including parenting education, individual therapy, anger management and a
psychological evaluation. The court
authorized unsupervised visits for C. T. “upon 30 days of positive behavior
during visits.â€
On October 25, 2011, both children were
placed in the home of T. T.’s paternal grandmother. The following day, P. T. was placed with her
father.
In its report prepared for the six-month
review hearing, DPSS recommended termination of C. T.’s reunification services
and setting a hearing on termination of parental rights as to T. T., pursuant
to section 366.26. On October 11, 2011,
C. T. had pleaded guilty to felony vandalism and battery on a spouse or cohabitant
and was placed on formal probation with the condition that she serve 540 days
in local custody. Before being
incarcerated, she had participated in some of her case plan services but had
not completed any of them. At the
hearing, however, the court ordered continued reunification services for C. T.
By the time of the 12-month review
hearing, DPSS again recommended termination of services. T. T. was having serious behavioral problems
and was in therapy. He had been diagnosed
with attention deficit/hyperactivity disorder and had exhibited a “high
frequency of intense aggressiveness, poor boundaries, impulsiveness, poor
socialization, mood swings with violent acts[,] and nightmares.†In preschool, T. T. had trouble sitting,
listening and following classroom rules.
He was disruptive in class, and he would spit on staff members and
attempt to bite them when he became angry.
He did well when he received individual attention but became angry and
wanted to leave when he was not receiving that attention. His teacher reported that his behavior became
worse after a visit with his mother at the jail. He was also aggressive with other children.
While C. T. was in custody, visits with
the children did not go well. The social
worker observed that C. T. interacted with P. T. far more than with T. T. and
that she treated P. T. more as a peer than as a child. P. T. made many rude comments which C. T.
ignored and the two of them gossiped about family members. She made no effort to redirect either of the
children when they behaved inappropriately.
When the social worker discussed these interactions with C. T. after the
children had left, C. T. said she believed that her children should be able to
talk to her about anything, without filters.
After the visit the children fought with each other in the car.
C. T. was released from custody on April
27, 2012. The social worker had told her
that she needed to contact DPSS after her release to schedule a visit because
DPSS did not know where she would be residing and would be unable to contact
her until she provided contact information.
On May 1, C. T. contacted the social worker. They agreed to set up a visit during that
week. The social worker told C. T. she
would call her with the date and time and would mail her a bus pass. The social worker called C. T. back on May 1,
May 3, May 7 and May 15, but each time C. T.’s voicemail was full and she could
not leave a message. She saw C. T. in
court at a hearing to terminate P. T.’s dependency, and they agreed to arrange
a visit during the following week. It
was difficult to make arrangements because T. T. was living in Altadena and C.
T. was living in Hemet. The travel was
difficult both for C. T. and T. T. C. T.
failed to return calls about visits, or failed to appear at scheduled visits
without prior notification. She did not
call DPSS to attempt to arrange for visits.
In fact, since her release, she participated in only one visit with the
children, and the quality of the visit was poor. C. T. made few attempts to redirect the
children, engaged in inappropriate conversation with P. T. and became upset
when the social worker intervened. T. T.
“began to express anger, agitation and aggression during and following†the
visit.
T. T.’s therapist recommended against
returning him to C. T.’s care because he believed doing so would sabotage the
improvements in T. T.’s behavior. T. T.
was almost expelled from preschool because of his behavior following the last
visit. C. T.’s therapist believed that
she would be able to regain custody of her children, but that she needed more
time to work on issues such as impulsivity and “black and white thinking.†T. T.’s grandmother was willing to adopt him
if reunification failed.
At the review hearing, the social worker
testified that C. T. had done a “wonderful job†participating in her
services. She had learned to control her
aggressiveness. However, because she had
not taken advantage of visitation as an opportunity to practice parenting
techniques, DPSS could not determine whether C. T. had actually benefitted from
the services she had received. If she
had made the effort, she could have had 15 visits since her release from
custody.
Although the hearing was termed a
12-month review, in reality only a month remained in the maximum 18-month
reunification period. The social worker
testified that if they had an additional six months available for C. T. to
demonstrate good parenting skills and to prepare T. T. for returning to her
custody, reunification would be possible.
A month, however, was simply not enough time. The social worker wanted to watch T. T. with
his mother, see “what seems to trigger his behaviors with her, address it with
his therapist, have his therapist address it with him in therapy, have grandma
talk to him.†This was not something
that could be accomplished in a one-month period of marathon visitation.
The court stated that if five or six
months remained in the reunification period, it would have extended
services. However, because there simply
was not enough time remaining and T. T. could not safely be returned home, the
court terminated services. It set a
section 366.26 hearing. The court
informed C. T. of her writ rights.
The court left C. T.’s visitation in place, as long as she confirmed
that she would attend each visit.
C. T. filed a petition pursuant to
section 388 for modification of the order terminating her parental rights. The court denied the petition without a
hearing, finding that it did not state a prima facie case. C. T. did not object to DPSS’s evidence in
support of termination of her parental rights.
She presented affirmative evidence directed solely toward the beneficial
parental relationship exception to the statutory preference for adoption. The court found T. T. adoptable, that an
adoptive home was available, and that adoption was in his best interest. It found the exception inapplicable. The court terminated parental rights and
ordered T. T. placed for adoption.
C. T. filed a timely notice of appeal.
DISCUSSION
1.
THE COURT DID NOT ABUSE ITS
DISCRETION WITH RESPECT TO THE SECTION 388 PETITION
C. T. filed
a petition, pursuant to section 388, seeking reinstatement of reunification
services. In support of her petition,
she stated that she had completed her case plan and had visited T. T. regularly
and that T. T. would benefit from reinstatement of reunification services
because “[t]he child and mother are bonded and there is no risk to him if
placed with her.â€
On the date set for the section 366.26
hearing, C. T.’s attorney asked the court to trail the section 388 petition for
a day or two so that she could subpoena the social workers who had supervised
visits with T. T. since the termination of her reunification services. The attorney told the court that the report
for the section 366.26 hearing did not include descriptions of the visits in
the delivered services log. She wanted
to subpoena the workers and to have them and C. T. testify as to the “nature
and quality of those visits.†She
reminded the court that at the prior hearing, C. T. was “days away†from
completing her anger management and
parenting classes and that the major issue which resulted in termination of
services was that C. T. did not visit regularly with T. T. Counsel stated that her client believed that
with a continuance, she could produce evidence that her visits since the
termination of services were “of such a quality that it would show it’s in the
child’s best interest to grant the 388.â€
DPSS responded that mother had “missed the visit in September and the visit
was canceled in November.â€
name="_ftnref6" title="">[6]
The juvenile court denied the petition without holding an evidentiary
hearing, stating that mother had failed to make a prima facie showing that
reinstating reunification would be in T. T.’s best interest. C. T. now contends that this was an abuse of
discretion.
A juvenile court has discretion whether
to provide a hearing on a petition alleging changed circumstances. However, the petition must be liberally
construed in favor of its sufficiency, and if the parent makes a prima facie
showing both that changed circumstances warrant modification and that the
modification will be in the child’s best interest, the court must afford the
petitioner a full hearing. “Indeed, to
be entitled to a hearing on her petition, appellant needed only to show
‘probable cause’; she was not required to establish a probability of prevailing
on her petition. [Citations.]†(In re
Aljamie D. (2000) 84 Cal.App.4th 424, 431-432.)
Here, the court did not abuse its
discretion. The evidence at the prior
hearing showed both that mother missed many visits with T. T. and that she did
not develop her parenting skills during the reunification period sufficiently
to progress to unsupervised or overnight visits, or even to visits outside the
DPSS office. The social worker who
observed visits since the prior reporting period testified that C. T. had great
difficulty redirecting both children and that she was very passive with
them. Moreover, C. T. was very passive
about setting up visits with T. T. and did not actively seek to schedule
visits. Since her release from custody,
mother had attended only one visit with T. T.
The social worker explained that frequent visitation was necessary
because T. T. had serious emotional difficulties and because his behavior was
negatively affected by visits with C. T.
She wanted to watch him with his mother, see “what seems to trigger his
behaviors with her, address it with his therapist, have his therapist address
it with him in therapy, have grandma talk to him.†This was not something that could be
accomplished without regular visitation.
Because of the insufficient visitation, the social worker could not tell
if C. T. had truly benefitted from the services she received. These were the major reasons that the court
terminated services, finding that mother had not taken advantage of visitation
sufficiently to practice and improve her parenting skills.
Nothing in her section 388 petition or in
the offer of proof concerning the requested continuance constituted a prima
facie showing that if a hearing were held, C. T. would be able to show that her
subsequent participation in visitation had enabled her to improve her parenting
to the extent that she was capable of unsupervised or overnight visits. The most she offered to show was that she had
visited T. T. regularly since the order terminating her reunification services
and had “good visits,†and that if she could subpoena the social workers who
supervised her visits, they would dispute the statement in the current report that
she spent an excessive amount of time on the phone during visits. The fact that the visits went better than the
current report indicated is not sufficient to make a prima facie showing either
that circumstances had changed or that reinstating reunification services would
be in T. T.’s best interest, and the vague offer of proof as to what the social
workers could say if they were subpoenaed was also not sufficient to mandate a
continuance. Moreover, as the court noted,
C. T.’s statement in the petition that she had a bond with T. T. and that he
would not be at risk in her care is not sufficient to make a prima facie
showing that resuming services would be in T. T.’s best interest.
For these reasons, we conclude that the
juvenile court did not abuse its discretion either by denying C. T. a hearing
on her petition or by denying the requested continuance.
2.
C. T.
WAS NOT DENIED DUE PROCESS
C. T.’s
second argument bears the caption “Mother was denied due process at the section
366.26 hearing when the department failed to report favorable evidence or
include favorable service logs in its report.â€
The argument itself is rambling and unfocussed and, contrary to the
caption, it is not limited to discussion of the alleged denial of due process
at the section 366.26 hearing.
We need not address arguments not germane
to the issue stated in the caption. (See
Cal. Rules of Court, rule 8.204(a)(1)(B).)
With respect to the issue stated in the caption, however, we can readily
conclude that DPSS’s failure to include favorable information in its report did
not deprive C. T. of due process. As C.
T. notes in her opening brief, due process is satisfied if the parent has an
opportunity to challenge the accuracy of the report, either by cross-examining
the social worker who prepared the report or by presenting affirmative
evidence. (See In re Malinda S. (1990) 51 Cal.3d 368, 379, 382, superseded in part
by statute as noted in In re Cindy L. (1997)
17 Cal.4th 15, 22, fn. 3.) The social
worker who prepared the report was present and could have been
cross-examined. Or, C. T. could have
presented affirmative evidence controverting the report. Instead, C. T. chose not to object to the
report and not to cross-examine the social worker, and instead presented
evidence limited to the applicability of the beneficial parental relationship
exception to the statutory preference for adoption. (We discuss this exception in § 3, below.)
C. T. also contends that the court’s
denial of her continuance request violated her right to due process because it
deprived her of the opportunity to contest DPSS’s evidence that her visitation
was sporadic and not beneficial to T. T.
She contends that because there is no proof of service on her or her
attorney, the logical inference is that the report was provided to her and her
attorney only on the hearing date.
However, C. T.’s attorney did not tell the court that she needed a
continuance because she had only belatedly received the report. Rather, she merely asked for a continuance so
she could subpoena witnesses she had been unable to contact “over the lunch
hour.†When she renewed her request for
a continuance, the only further explanation she offered was that C. T.
misunderstood the nature of the hearing, i.e., termination of parental rights,
and thought the purpose of the hearing was so that she could see if she could
get increased visitation. She now wanted
to subpoena the two social workers because they could provide information “that
the visits [were] of such a quality that it would show it’s in the child’s best
interest to grant the 388.†She did not
offer any additional justification for the continuance for purposes of the
section 366.26 hearing. Consequently,
the court’s denial of the continuance did not deprive C. T. of due process with
respect to either the section 388 petition or the section 366.26 hearing.
C. T. also contends that the social
worker’s report was not admissible because it “appeared to not be reliableâ€
because it was contrary to her testimony concerning the number and quality of
the visits. However, at the hearing, her
attorney expressly stated that she had no objection to the report. Consequently, any objection to its
admissibility has been waived.
3.
MOTHER
DID NOT MEET HER BURDEN OF PROOF WITH RESPECT TO THE BENEFICIAL PARENTAL
RELATIONSHIP EXCEPTION
“Adoption must be selected as the
permanent plan for an adoptable child and parental rights terminated unless the
court finds ‘a compelling reason for determining that termination would be
detrimental to the child due to one or more of the following
circumstances: [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.
Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) Under these
provisions, “the court must order adoption and its necessary consequence,
termination of parental rights, unless one of the specified circumstances
provides a compelling reason for
finding that termination of parental rights would be detrimental to the
child. The specified statutory
circumstances . . . ‘must be considered in view of the legislative
preference for adoption when reunification efforts have failed.’†(In re
Celine R. (2003) 31 Cal.4th 45, 53, italics added (
because it gives the child the best chance at [a full] emotional commitment
from a responsible caretaker.’†(
The parent
has the burden of establishing by a preponderance
of the evidence that a statutory exception to adoption applies. (Bailey
J., supra, 189 Cal.App.4th at
p. 1314.) To meet the burden of
proving the section 366.26, subdivision (c)(1)(B)(i), exception the parent must
show more than frequent and loving contact, an emotional bond with the child,
or pleasant visits—the parent must show that he or she occupies a parental role
in the life of the child. (
1527.)
A juvenile
court’s finding that the beneficial parental relationship exception does not
apply is reviewed under a hybrid substantial evidence/abuse of discretion
standard. The factual finding, i.e.,
whether a beneficial parental relationship exists, is reviewed for substantial
evidence, while the court’s determination that the relationship does not
constitute a “compelling reason†(Celine
R., supra, 31 Cal.4th at
p. 53) for determining that termination of parental rights would be
detrimental is reviewed for abuse of discretion. (Bailey
J., supra, 189 Cal.App.4th at
pp. 1314-1315.)
Since the
proponent of the exception bears the burden of producing evidence of the
existence of a beneficial parental or sibling relationship, a challenge to a
juvenile court’s finding that there is no beneficial relationship amounts to a
contention that the “undisputed facts lead to only one conclusion.†(In re
I. W., supra, 180 Cal.App.4th at
p. 1529.) Unless the undisputed
facts established the existence of a beneficial relationship, a substantial
evidence challenge to this component of the juvenile court’s determination
cannot succeed. (Bailey J., supra, 189
Cal.App.4th at p. 1314.)
Here, C. T.
has utterly failed to show that the evidence compels the conclusion that T. T.
would suffer great detriment from the termination of parental rights. Rather, she merely cites the evidence which
shows that she had a loving relationship with T. T. and that she visited him
and spoke to him frequently by telephone.
She dismisses as irrelevant the evidence that she was never able to
obtain unsupervised visits or adequately parent T. T. during her visits. However, that evidence supports the
conclusion that C. T. did not occupy a parental role in T. T.’s life. Because the evidence does not lead only to
the conclusion that the exception applies, C. T. did not meet her burden, and
the juvenile court did not abuse its discretion in finding the exception
inapplicable. (In re I. W., supra, 180
Cal.App.4th at p. 1529.)
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P.J.
We concur:
RICHLI
J.
KING
J.
debit card belonged to a cousin who knew that C. T. had them. Other checks and checkbooks found in the apartment
might have belonged to relatives of C. T.
That was undetermined as of the date of her arrest.
Welfare and Institutions Code.
