In re Evan W.
Filed 8/7/12 In
re Evan W. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re EVAN W., et al., Persons
Coming Under the Juvenile Court Law.
B237563
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
KERI W., et al.,
Defendants and Appellants.
(Los Angeles County
Super. Ct. No. CK77129)
APPEAL from
orders of the Superior Court of
County. David R. Fields, Judge. Affirmed.
William
Hook, under appointment by the Court of Appeal, for Defendant and Appellant
Keri W.
Maureen L.
Keaney, under appointment by the Court of Appeal, for Defendant and Appellant
John K.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, Navid
Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
___________________________
Mother Keri W. challenges
Welfare and Institutions Code section 388 petition without a hearing and
terminating her parental rights over children Evan W. and L.K.
appeal.
name="_ftnref2" title="">[2] We affirm the juvenile court orders.
FACTUAL AND PROCEDURAL BACKGROUND
In May
2009, the juvenile court asserted dependency
jurisdiction over four-year-old Evan W.
The court sustained a dependency petition asserting mother had a history
of illegal drug use, she had recently tested positive for drugs, and her drug
use placed Evan at risk of harm. The
sustained petition also asserted mother and Evan’s father had a history of
Evan. Evan was removed from mother’s
custody and placed in foster care.
Mother was granted monitored visits and ordered to participate in
individual counseling, parenting classes, drug counseling, and random drug
testing. Her individual counseling was
to address case issues, including domestic violence.
In January 2010, mother gave birth
to L.K. Mother missed two drug tests
after L.’s birth. She also appeared to
be living at a “known narcotics home.”
The Los Angeles County Department
of Children and Family Services (DCFS) detained L. in February 2010. A subsequent jurisdiction and disposition
report indicated L.’s father, John K., had a history of illegal drug use and a
conviction for spousal battery. John admitted he and mother fought “a lot”
when she was drinking. However, he
claimed mother stopped drinking when Evan was detained and they had since
stopped fighting. In March 2010, the
juvenile court sustained a dependency petition asserting mother had an 11-year
history of drug abuse, mother failed to regularly participate in random drug
testing, and John failed to protect L. when he knew or should have known of
mother’s history of drug use. The court
removed L. from her parents’ custody.
She was placed in foster care.
The court ordered a reunification plan for both parents that included
monitored visits, parenting classes, random drug testing, and counseling to
address all case issues, including domestic violence.
Over the next nine months, mother
complied with portions of the case plans.
Mother visited the children regularly, although she sometimes missed
visits and at times violated restrictions on who could be present at visits or
where they could take place. Mother
completed a substance abuse program, attending 52 group sessions and 50 12-step
meetings. She completed a 16-week
parenting education program and 10 sessions of individual counseling. Between July 2009 and November 2010, mother
had 55 negative weekly random drug tests, with 12 unexcused “no show”
tests.
However, DCFS opined that mother
failed to acknowledge domestic violence was a problem in her relationship with
John. Visitation monitors noted that
during mother’s and John’s visits with L., John was “controlling and
emotionally abusive of mother.” Evan
told a social worker and his therapist he feared John would hurt mother as he
had in the past. Evan recounted an
incident he observed in which John threw rocks at mother and stabbed another
man with a tree branch. Evan also
reported he saw mother punch and hit John.
Although Evan asked that John not be present during his visits with
mother, DCFS discovered John was present on at least one occasion in May
2010. Evan later revealed mother and
John had directed him not to tell anyone John was at the visit. The stress of keeping this secret caused Evan
to break into a rash. Mother later told
Evan they could not have unmonitored visits because he “lied” to the social
worker about John’s presence.
When mother secured an apartment in
June 2010, she told DCFS John did not live with her. Yet, a social worker saw John’s vehicle on
the property and a man’s belongings in the apartment. Although mother later claimed she and John
were no longer together, in September 2010, a social worker observed mother had
recently had John’s name tattooed on her chest.
Later that month, Evan’s foster parents saw mother at a supermarket with
John. Mother also asked the foster
father to drop her off at John’s last known address.
After mother completed 10 required
sessions of therapy, the therapist recommended mother participate in more
intensive domestic violence counseling.
The therapist reported “mother did not acknowledge her pattern of
engaging in violent relationships nor did she acknowledge the detrimental emotional
and physical threat that these relationships pose to her children.” Despite mother’s completed therapy, the
therapist concluded mother “did not appear to gain much insight, as evidenced
by her continued relations with violent men and her ongoing failure to protect
her children.” Mother refused to attend
additional domestic violence counseling without a court order. In December 2010, the juvenile court
terminated mother’s reunification services in Evan’s case.
Between January and April 2011,
mother failed to consistently drug test.
She was terminated from the drug testing system, but did not immediately
ensure that she was put back on the list for drug testing. She then missed tests, claiming she did not
know she had been re-enrolled. At a
contested section 366.22 hearing in April 2011 in L.’s case, mother testified
that she had continued with individual counseling and she planned to discuss
domestic violence in her counseling sessions.
She attended Alcoholics and Narcotics Anonymous groups between one and
three times per week. She testified she
did not have additional sessions with her previous therapist because she had to
pay for them; she also said the therapist did not tell her she needed more
sessions. Mother denied any domestic
violence occurred in her relationship with John. She claimed to have no personal knowledge
that Evan was afraid of John. She
admitted there was domestic violence in her relationship with Evan’s father,
and in one subsequent relationship.
Mother also admitted the incident Evan had described occurred, but claimed
it involved another man, not John. She
opined Evan was confused and mistaken in his recollection of the incident. The juvenile court terminated mother’s
reunification services in L.’s case.
Over the next five months, DCFS
searched for an adoptive placement for the children, eventually finding a
family interested in adopting both children in September 2011. Mother continued visiting the children during
this period, but not without incident.
In June 2011, DCFS reported mother sometimes asked that Evan call her,
but then did not answer the phone when Evan called, leading Evan to have
emotional and behavioral issues. In July
2011, DCFS reported mother seemed more focused on gathering information at
visits to thwart adoption than she was on spending quality time with the
children. In November 2011, DCFS
reported Evan appeared happy in the adoptive placement and had developed a bond
with the adoptive parents’ two sons and the proposed adoptive parents, whom he
called “mom” and “dad.” DCFS indicated
that, when asked, Evan eagerly said he would like to live with the adoptive
family forever. L. “was observed to be
very well adjusted to her new family and routine.”
In November 2011, mother filed a
section 388 petition. Mother asserted
her circumstances had changed in that she had continued participating in weekly
Narcotics and Alcoholics Anonymous meetings and had been sober since 2009. She had completed a domestic violence
workshop series and participated in individual counseling. She had been approved for low-income
family-appropriate housing that would be available in December 2011. Mother alleged she had regular income in the
form of government benefits. She had
looked into counseling services at Evan’s school in the hope that they could
eventually have conjoint counseling.
Mother requested the children be placed with her or that the court
reinstate reunification services. Mother
also argued the juvenile court should reconsider its placement orders because
DCFS had not engaged in actual efforts to place the children with a maternal
relative. The juvenile court concluded
mother’s petition did not state new evidence or a change of circumstances, and
the proposed changes would not be in the children’s best interests. The court denied mother’s petition without a
hearing.
In December 2011, seven-year-old
Evan testified at a contested section 366.26 hearing. Evan testified he was living at his “forever
home,” but also said he did not want to be with the adoptive parents forever. Evan testified he wanted to stay with
mother. However, he admitted he was
worried that if he wanted the adoptive parents to be his parents, mother would
“get in trouble.” He spontaneously
identified the prospective adoptive parents’ two other children as his
“brothers.” A DCFS social worker
testified that Evan loved his mother and was “bonded” with her, but the social
worker believed Evan, like many other children, would thrive with a stable
adoptive family. The juvenile court
concluded the children were adoptable and the parent-child beneficial
relationship exception under section 366.26, subdivision (c)(1)(B)(i) did not
apply. The court terminated parental
rights.
Relative Placement
Background
In the
detention report for Evan, DCFS indicated there were no relatives to consider
for placement. The maternal grandmother
reported she did not have a place to live and was staying at a motel. In early May 2009, the court ordered DCFS to
evaluate Evan’s maternal aunt, Bonita S., for possible placement. In June 2009, the court ordered DCFS to
continue efforts to place Evan with Bonita S.
In January 2010, DCFS reported it did not consider Bonita S. to be an
appropriate placement because she lived with a roommate; DCFS was advised that
the roommate had “mental issues and can become violent at times.” Bonita S.’s home was also too small to
accommodate Evan, and she smoked, which posed a health risk to Evan as he
suffered from asthma.
When L. was
detained in February 2010, DCFS reported the parents had “not provided
sufficient information regarding relatives for placement consideration.” In mid-February 2010, the maternal
grandmother and Bonita S. submitted relative caretaker information sheets.
placement of the children with relatives in the jurisdiction and disposition
report. In a last minute information
provided to the court in March 2010, DCFS reported that mother was asked if
there were relatives available for placement, and mother “stated that there is
no way [L.] is not going to be released to [mother] on 03/04/2010.”
In July
2010, DCFS reported that in late June 2010, mother’s step-mother contacted DCFS
and indicated she and the children’s maternal grandfather wished to be
considered for adoption of Evan “if necessary.”
The grandfather and his wife lived in Georgia. DCFS further reported the social worker asked
mother if “there were any additional relatives she would like to be
considered,” and mother “said no.” DCFS
repeated the same information in an August 2010 interim review report. In a September 2010 status review report,
DCFS noted that the grandfather and his wife were interested in adopting
L. However, a concurrent planning
assessment indicated a social worker attempted to contact the grandfather and
wife three consecutive days in mid-August, but their telephone number was
“unavailable.” In December 2010, the
juvenile court terminated mother’s reunification services for Evan.
In a March 2011 status review
report, DCFS indicated the grandfather’s telephone number was
disconnected. In early March 2011,
social workers received a call from the boyfriend of maternal aunt Natasha W.,
requesting that Evan be placed with them.
than Natasha W. because she feared she would not be approved for adoption due
to a DUI on her record. However, Natasha
W. later left a message for the social worker demanding that Evan be placed
with her. DCFS reported neither had
called again.
In late March 2011, DCFS renewed
its efforts to consider maternal grandmother for placement. The maternal grandmother indicated she had
temporary housing that would not be suitable for L. She was caring for an elderly man and living
in his home. Maternal grandmother said
she “might” move in with her sister. The
social worker later called maternal grandmother to inquire about her living
situation. Maternal grandmother did not
call back. The social worker told mother
she had been unable to reach maternal grandmother. Mother said she would let maternal grandmother
know. Mother also gave the social worker
a list of five relatives to be considered for placement.
At an April 6, 2011 hearing, DCFS
informed the court it would recommend adoption as the permanent plan for
Evan. Mother requested that maternal relatives
be considered for placement. DCFS
objected that since the court had terminated mother’s reunification services
for Evan, relative placement was no longer a priority. The court ordered that DCFS would have
“discretion to continue to look at relatives for placement of [Evan].” On April 7, 2011, the court terminated
mother’s reunification services for L.
At a June 8, 2011 hearing, mother
again asked that relatives be considered for placement. DCFS responded that it was looking for an
adoptive placement for both children and it was not a priority to consider
relatives. The court ordered DCFS to
consider maternal relatives for placement.
In late June 2011, DCFS called maternal aunt Natasha W. She did not return the social worker’s
call. L.’s paternal uncle informed DCFS
he was not in a position to take care for L.
In July 2011, mother and maternal grandmother informed DCFS the
children’s maternal great aunt and uncle, Darrin and Sylvia C., were interested
in having the children placed with them.
The social worker gave mother and maternal grandmother the adoptive
social worker’s telephone number so that the C.’s could make arrangements to be
live-scanned or find out about the children.
The C.’s did not call.
In a July 2011 section 366.26
report in L.’s case, DCFS detailed its efforts to assess a relative
placement. Maternal great aunt Michelle
W. was not interested in having either child placed with her. The social worker was unable to get in touch
with the grandfather living in Georgia and his wife. The worker indicated their telephone was “not
taking calls, thus a message could not be left for them.” L.’s paternal aunt informed DCFS she and her
husband were not in a position to have L. placed with them. DCFS concluded: “At this time, DCFS has
not received information for any relatives willing or able to care for
[L.]. If [mother] is able to reach her
parents in Georgia, she can provide them with the [adoption case social
worker’s] number and they can call collect.”
At a subsequent July 2011 hearing, the court indicated DCFS was to note
the request to have maternal relatives considered for placement, and stated
DCFS should explore all placement options as a potential adoptive placement had
recently fallen through.
In August 2011, a DCFS social
worker noted he asked maternal grandmother why she had not considered legal
guardianship of the children. Maternal
grandmother said DCFS had initially told her she could not have the children
placed with her and “[n]ow she’s a caregiver who takes care of an elderly man
who is in his 70s and 80s. He doesn’t
want children in his home and there’s a cat that he will not let go. Evan is not able to be around cats. [Maternal grandmother] lives in the home.”
On September 6, 2011, the adoptive
case social worker called maternal great aunt Sylvia C. Her telephone was not accepting calls. The social worker then called and left a
message for maternal great uncle Darrin C.
He had not returned the social worker’s call by early October 2011. On September 13, 2011, DCFS received a
telephone call from the maternal grandfather inquiring about having the
children placed with him. On September
16, 2011, DCFS placed the children with the prospective adoptive family. On September 21, 2011, mother left a message
for a social worker indicating she had located more relatives, but not
providing telephone numbers. The social
worker left a message in response informing mother: “all relatives can be
interviewed but it would be better if she provided them with my phone number
and have them call me.”
In October 2011, the adoptive case
social worker submitted a “last minute information” detailing the maternal
grandfather’s September 13th call in which he expressed an interest in having
the children placed with him and his wife in Georgia. The information further recounted: “[The
step-grandmother] indicated that she and her husband have been aware that the
children were in foster care for the past two years, and previously spoke with
a ‘social worker’ regarding having the children placed with them. She says they were criminally cleared
although this is not possible without a court order as they reside out of
state. She says she and her husband never
called DCFS back to follow up, even though they were aware that the children
were still in foster care, as they just felt that ‘everything’ was going to
work out. [¶] [Step-grandmother] states she has never met
either child, [grandfather] has not seen Evan in over two years, and he has
never met [L.]. They say it is too
expensive for them to come to California just for a visit. [Mother] has had the [adoptive case social
worker’s] phone number for many months and could have provided her father and
step-mother with CSW’s phone number way before now. As reflected in the court report the
[adoptive case social worker] has called, or attempted to call, all relatives
whose names and phone numbers were provided by [mother]. The outcome of those calls is detailed in the
continued .26 report. Given the children
are now in a permanent home, DCFS is not exploring any other homes for the
children.” The case social worker opined
in a last minute information that “the proposed out-of-state caregivers that
mother has identified to DCFS have had no contact with these two young children
during the last two years, and have no relationship whatsoever with these
children, who have now started bonding with their current prospective adoptive
caregivers.” At an October 2011 hearing,
the juvenile court denied mother’s request for an investigation of the maternal
grandfather and his wife pursuant to the Interstate Compact on the Placement of
Children (ICPC).
In November 2011, mother filed her
section 388 petition alleging, in part, DCFS failed to make actual efforts to
assess relatives for placement. The
juvenile court summarily denied the petition.
DISCUSSION
Discretion in Denying Mother’s Section 388 Petition Without a Hearing
Mother’s section 388
petition had two grounds. First, mother
contended she had evidence of changed circumstances—her additional efforts to
address the case issues—that warranted a court order reinstating her
reunification services or returning the children to her. Second, mother argued the court should assess
her relatives for permanent placement and order an ICPC investigation for the
relatives living in Georgia. We find no
error.
“A juvenile court order
may be changed, modified or set aside under section 388 if the petitioner
establishes by a preponderance of the evidence that (1) new evidence or changed
circumstances exist and (2) the proposed change would promote the best
interests of the child. [Citation.] A parent need only make a prima facie showing
of these elements to trigger the right to a hearing on a section 388 petition
and the petition should be liberally construed in favor of granting a hearing
to consider the parent's request.
[Citation.] [¶] However, if the liberally construed
allegations of the petition do not make a prima facie showing of changed
circumstances and that the proposed change would promote the best interests of
the child, the court need not order a hearing on the petition. [Citations.]
The prima facie requirement is not met unless the facts alleged, if
supported by evidence given credit at the hearing, would sustain a favorable
decision on the petition.
[Citation.]” (
799, 806 (Zachary G.).)
“The juvenile court’s determination to deny a section 388
petition without a hearing is reviewed for abuse of discretion. [Citations.]
We must uphold the juvenile court’s denial of appellant’s section 388
petition unless we can determine from the record that its decisions ‘ “exceeded
the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.” [Citations.]’
[Citations.] . . . . ‘After the termination of reunification services,
the parents’ interest in the care, custody and companionship of the child are
no longer paramount. Rather, at this
point ‘the focus shifts to the needs of the child for permanency and stability’
[citation], and in fact, there is a rebuttable presumption that continued
foster care is in the best interests of the child. [Citation.]
A court hearing a motion for change of placement at this stage of the
proceedings must recognize this shift of focus in determining the ultimate
question before it, that is, the best interests of the child.’ [Citation.]”
(In re Brittany K. (2005) 127
Cal.App.4th 1497, 1505 (Brittany K.).)
A. Mother’s Changed Circumstances
The juvenile court acted within the
bounds of reason when it summarily rejected mother’s claim that her changed
circumstances warranted a modification of previous orders. While mother may have alleged some changed
circumstances, the juvenile court could reasonably conclude mother did not
state a prima facie case that returning the children to her or allowing more
reunification services would be in their best interests. To justify modification of prior orders, a
“change in circumstances must relate to the purpose of the order and be such
that the modification of the prior order is appropriate. [Citations.]
In other words, the problem that initially brought the child within the
dependency system must be removed or ameliorated. [Citations.]
The change in circumstances or new evidence must be of such significant
nature that it requires a setting aside or modification of the challenged
order.” (In re A.A. (2012) 203 Cal.App.4th 597, 612.)
Mother’s section 388 petition
alleged she was sober, she was participating in individual counseling, she had
completed a domestic violence workshop, she anticipated having stable housing
soon, and she had income in the form of government assistance. However, when the juvenile court terminated
mother’s reunification services for Evan and L., a significant issue was
mother’s refusal to acknowledge domestic violence in her relationship with
John, and her refusal to accept that Evan had any reason to fear John. She had completed several sessions of
individual counseling, and domestic violence counseling, prior to the
termination of reunification services.
But there were reports mother had not demonstrated an understanding of
the problem, which was likely necessary for her to avoid reentering a violent
relationship with John, or another violent relationship with a new
partner. Mother’s section 388 petition
did not address this critical issue, except to state that mother had completed
a domestic violence workshop. (
808.) There were no additional reports
from mother’s therapist about her progress on the issue. (Brittany
K., supra, 127 Cal.App.4th at p. 1507 [no abuse of discretion in denial of
388 petition that contained no independent evidence mother had overcome
deficiencies that made her a continuing risk to children].)
Moreover, although mother’s
prospects for child-appropriate housing seemed promising, she was not able to
immediately take custody of the children.
The petition did not suggest the children could be immediately placed
with mother. The children were bonding
with their new prospective adoptive parents and had a chance at long-term
stability. The trial court did not abuse
its discretion in determining that disrupting that stability at this stage of
the proceedings in the hope that mother would be able to take custody of the
children, after additional months of reunification services, was not in the
children’s best interests. (
247, 260 [summary denial of 388 petition not abuse of discretion where petition
made no showing of how minors best interests would be served by depriving them
of permanent home in favor of uncertain future]; Brittany K., supra, 127 Cal.App.4th at p. 1507.)
B. Relative Placement
Mother’s section 388 petition
asserted the juvenile court should continue the section 366.26 hearing to
evaluate maternal relatives for permanent placement of the children. The trial court did not abuse its discretion
in denying this claim without a hearing on the ground that the requested change
would not be in the children’s best interests.
Under section 361.3, “whenever a
new placement of a dependent child must be made, preferential consideration
must be given to suitable relatives who request placement. (§ 361.3, subds. (a), (d).) ‘ “Preferential consideration” means that the
relative seeking placement shall be the first placement to be considered and
investigated.’ (§ 361.3, subd.
(c)(1).) Preferential consideration
‘does not create an evidentiary presumption in favor of a relative, but merely
places the relative at the head of the line when the court is determining which
placement is in the child’s best interests.’
[Citation.] [¶] ‘[T]he statute express[es] a command that
relatives be assessed and considered
favorably, subject to the juvenile court’s consideration of the suitability of
the relative’s home and the best interests of the child.’ [Citations.]”
(In re Antonio G. (2007) 159
Cal.App.4th 369, 376-377 (Antonio G.).)
“Once a child is placed in the home
of a nonrelative at the dispositional hearing, the relative placement
preference does not arise again until ‘a new placement of the child must be
made.’ [Citations.]” (In re
N.V. (2010) 189 Cal.App.4th 25, 31.)
However, “[t]here is no relative placement preference for adoption. [Citations.]”
(In re Lauren R. (2007) 148
Cal.App.4th 841, 855 (Lauren R.).)
We are guided by the decision of
our high court in In re Stephanie M.
(1994) 7 Cal.4th 295 (Stephanie M.). In that case, after the juvenile court
asserted jurisdiction, placed the child in foster care, terminated
reunification services, and set a section 366.26 hearing, the parents made a
section 388 motion requesting the child be placed with a relative. (Id.
at pp. 306, 316-317.) The juvenile court
concluded there was insufficient evidence produced to establish that a change
of placement was in the child’s best interests.
The Court of Appeal reversed, finding the juvenile court did not give
sufficient weight to the relative placement preference. (Id.
at p. 319.) Our high court disagreed and
concluded the juvenile court did not abuse its discretion. The court noted: “After the termination of
reunification services, the parents’ interest in the care, custody and
companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to
the needs of the child for permanency and stability’ [citation] . . . . A court hearing a motion for change of
placement at this stage of the proceedings must recognize this shift of focus
in determining the ultimate question before it, that is, the best interests of
the child.” (Id. at p. 317.) Our high
court affirmed the juvenile court’s decision that the child’s best interests
were served by her remaining with her foster parents, rather than being placed
with her grandmother with whom she had no bond.
(Id. at p. 318.)
Here, mother did not state a
section 366.26 hearing for further assessment of maternal relatives would be in
the children’s best interests. Contrary
to mother’s claims, DCFS had contacted or attempted to contact numerous
maternal and paternal relatives. These
efforts were previously detailed to the juvenile court. In August 2011, maternal grandmother told
DCFS she still did not have housing appropriate for the children, two years
after Evan was initially detained. Other
relatives did not contact DCFS, did not return DCFS calls, or indicated they
were not interested in having the children placed with them. Mother offered no allegations indicating
further attempts to contact or assess these relatives would be in the
children’s best interests.
As to the maternal grandfather and
his wife, mother also failed to assert delaying the section 366.26 hearing to
assess these relatives for placement would be in the children’s best
interests. The grandfather and wife had
no relationship with the children. The
grandfather had not seen Evan in over two years. Despite making an initial contact with DCFS,
the grandfather and wife failed to make any additional contact for over a year
while the dependency proceedings continued.
They initially asserted they could not visit the children in California
due to the expense of the trip. Due to
the invalid contact information DCFS had for the grandfather and wife for much
of the case, any information gathering about the grandfather and wife would
have begun from scratch, when an adoptive placement had already been
identified. By the time mother filed her
section 388 petition, the children had already started to bond with the
prospective adoptive family. There is no
relative placement preference for adoption, and, even when applicable, section
361.3 does not guarantee placement with relatives. (Lauren
R., supra, 148 Cal.App.4th at p. 855; In
re Joseph T., Jr. (2008) 163 Cal.App.4th 787, 798.) “[R]egardless of the relative placement
preference, the fundamental duty of the court is to assure the best interests
of the child, whose bond with a foster parent may require that placement with a
relative be rejected.” (
321.)
Indeed, mother’s section 388
petition did not include any allegations that, if true, would establish that
delaying the proceedings for further assessment of maternal relatives for
permanent placement would be in the children’s best interests. In Stephanie
M., the court concluded that with respect to the section 388 petition, “the
burden was on the moving parties to show that the change was in the best
interests of the child at that time.
Evidence that at earlier proceedings the court had not sufficiently
considered placement with the grandmother was not relevant to establish that at
the time of the hearing under review, placement with the grandmother was in the
child’s best interests.” (
322, fn. omitted.) The same is true in
this case.
discretion in summarily denying mother’s 388 petition based on the relative
placement preference.
II. Substantial
Evidence Supported the Juvenile Court Ruling that the
Beneficial Child-Parent Relationship Exception Did Not Apply
Under section 366.26, subdivision
(c)(1), the juvenile court must terminate parental rights if it finds by
likely the child will be adopted if parental rights are terminated. However, the court will not terminate
parental rights if it determines doing so would be detrimental to the child
based on one of several statutory exceptions.
(§ 366.26, subd. (c)(1)(B).) The
party challenging termination of parental rights bears the burden of proving
that one or more of the statutory exceptions applies. (In re
C.F. (2011) 193 Cal.App.4th 549, 553; In
re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
To establish the beneficial
parent-child relationship exception, mother had to prove termination of
parental rights would be detrimental to the children because (1) mother
maintained regular visitation and contact with them, and (2) the children would
benefit from continuing their relationship with mother. (§ 366.26 (c)(1)(B)(i).) “The ‘benefit’ prong of the exception
requires the parent to prove his or her relationship with the child ‘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.’ [Citations.]”
(In re K.P. (2012) 203
Cal.App.4th 614, 621-622 (K.P.).) “Because a parent’s claim
to . . . an exception [to termination of parental rights] is evaluated in light
of the Legislature’s preference for adoption, it is only in exceptional
circumstances that a court will choose a permanent plan other than adoption. [Citation.]”
(In re Scott B. (2010) 188
Cal.App.4th 452, 469.)
“[T]he review of an adoption exception
incorporates both the substantial evidence and the abuse of discretion
standards of review.
[Citation.] . . . . [T]he juvenile court’s decision whether an adoption
exception applies involves two component determinations: a factual and a
discretionary one. The first
determination—most commonly whether a beneficial parental or sibling
relationship exists . . . is, because of its factual nature, properly reviewed
for substantial evidence. [Citation.] The second determination in the exception
analysis is whether the existence of that relationship or other specified
statutory circumstance constitutes ‘a compelling reason for determining that termination would be detrimental to the child.’ (§ 366.26, subd. (c)(1)(B); [Citation.] This ‘ “quintessentially” discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption,’ is appropriately reviewed
under the deferential abuse of discretion standard. [Citation.]”
(K.P., supra, 203 Cal.App.4th
at pp. 621-622.)
We find no abuse of discretion in
the court’s determination that the bond existing between mother and the
children did not constitute a compelling reason for determining that
termination of parental rights would be detrimental to the children.
social workers noted the bond between mother and the children. Mother’s sister also testified about the
loving relationship between the children and mother. But, as the juvenile court noted, mother’s
visits with Evan were still monitored, even after two years of dependency
jurisdiction. In a 2011 report visit, a
social worker noted that Evan and L. were slow to become comfortable with
mother. Evan at times called mother by
her first name. One social worker opined
the children’s attachment to mother was not very strong, in that they did not
have emotional reunions or farewells at visits.
L. had spent all but the first month of her life in foster care. There was also evidence that despite his bond
with mother, Evan was eager to live with the prospective adoptive family
“forever.” To the extent Evan’s
testimony in court contradicted the social worker’s reports, it was for the
trial court to assess the credibility of the evidence.
The juvenile court also properly
considered “the ‘positive’ or ‘negative’ effect of interaction between parent
and child . . . .” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) Mother’s interactions with the children were
not always positive. In the spring of
2011, mother sometimes canceled visits with Evan, causing him to become
irritable, frustrated, and physically ill.
In August 2011, a social worker noted mother canceled visits about 60
percent of the time, and Evan was sad both before and after visits. At a September 2011 visit, mother focused her
attention on L., but also needed the maternal grandmother’s help with the
children. At two visits in October 2011,
the monitor reported mother was angry, rude, loud, and brought visitors who
were disruptive. Monitors had the
impression that mother was less focused on having meaningful visits than she
was on gathering information and coordinating visits with other family
members. The juvenile court could
reasonably infer from these problematic interactions that severing the
parent/child relationship would not deprive the children of a substantial,
that would outweigh the benefits of adoption.
(Ibid.) The trial court did not abuse its discretion
in concluding it would not be detrimental to the children to terminate mother’s
parental rights.
title="">[9]
The
juvenile court orders are affirmed.
BIGELOW, P. J.
We concur:
RUBIN,
J.
FLIER,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] John
K. is not Evan’s father. For clarity, we
refer to John K. by his first name.
