In re Dana A.
Filed 2/13/13 In re Dana A. CA5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH
APPELLATE DISTRICT
In
re DANA A., et al., Persons Coming Under the Juvenile Court Law.
KERN
COUNTY DEPARTMENT OF HUMAN SERVICES,
Plaintiff
and Respondent,
v.
KATHERINE
W.,
Defendant
and Appellant.
F065597
(Super. Ct. Nos. JD127651 &
JD127652)
Kern County
THE
COURT
name="_ftnref1" title="">*
APPEAL from a judgment of the
Superior Court of
Janette Freeman Cochran, under
appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel,
and Elizabeth M. Giesick, Deputy, for Plaintiff and Respondent.
-ooOoo-
Katherine W. (mother) appeals from orders denying her
petitions under Welfare and Institutions Code
rights to her daughters, Dana A. (born December 2006) and Mary A. (born
August 2008) (collectively, the children).
Mother contends the juvenile court erred by denying her section 388
petitions seeking reunification services
and her alternative request for a bonding study. She also contends the court erred by failing
to apply the beneficial relationship exception to termination of parental
rights. We reject these contentions and
affirm the judgment.
FACTS
AND PROCEEDINGS
On October 20, 2011, the children and their
half-brother, John B., Jr., (born June 2010), were taken into protective
custody by the Kern County Department of Human Services (department) after the
department received a referral of general neglect. The reporting party stated that mother and
her boyfriend, John B., were “bad drug addicts†and their apartment was
“unlivable.â€
A police officer went to mother’s home to investigate. Upon entering the apartment, the officer
noticed a large amount of clutter on the floor—including old food, broken
dishes, and cigarette butts—that was easily accessible to small children. As he walked around the apartment, he saw
numerous items stacked four to five feet in the air. He checked the refrigerator and observed that
it contained insufficient food to feed the five people living in the
apartment. He also noticed all the trash
cans in the apartment were overflowing with numerous flies flying around
them.
The day after the children were removed, mother admitted to
the social worker that methamphetamine was her drug of choice and that she had
used the drug on two recent occasions.
Mother claimed she had been “clean†for six years but relapsed in June
2011 “due to financial struggling.â€
Mother also acknowledged a report that John B. had beaten her up in
the apartment courtyard but insisted it was not true. In addition, mother “reported being bipolar
and … prescribed 300 mg. Lithium three times a day.†But she was not currently taking any
medication for the condition.
Mother had a chronic history of abusing methamphetamine and
a long history with child protective services.
In 2003 and 2005, two of mother’s older children (the children’s
half-siblings) were removed from parental custody due to their parents’
substance abuse and acts of domestic violence by the father against
mother. Mother failed to reunify with
the children’s half-siblings, her parental rights were terminated, and those
children were adopted.
Previous referrals had brought mother and John B. to
the department’s attention, including in August and September 2011. During that time, mother and John B.
signed safety plans, agreeing to clean up the apartment and submit to drug
testing. On August 12, 2011, mother
tested positive for amphetamine and methamphetamine, and John B. tested
positive for marijuana. On
September 21, 2011, mother tested positive for amphetamine and
methamphetamine, and John B. tested positive for amphetamine,
methamphetamine, and marijuana.
On October 25, 2011, the department filed petitions on
behalf of the children under section 300, subdivisions (b) (failure to protect)
and (j) (abuse of sibling) based on mother and John B.’s substance abuse
and the circumstances relating to mother’s failure to reunify and termination
of her parental rights with respect to the children’s half-siblings. The children were formally removed from
parental custody at the detention hearing.
Mother and John B. were permitted one-hour supervised visits twice
weekly.
Mother signed an initial case plan on October 25, 2011,
which included “parenting, neglect, substance abuse counseling, domestic
violence as a victim, and drug testing.â€
The social worker also suggested that mother pursue treatment for her
bipolar disorder.
and Disposition Hearings
The jurisdiction report, which was prepared in early
December 2011, reflected that mother had not yet enrolled in any of the
recommended components of her case plan, she submitted a positive drug test for
methamphetamine in November 2011, and she missed three visits with the
children. When reviewing her case plan
letter in mid-November, mother told the social worker “she was not aware she
needed to take domestic violence as a victim.â€
The social worker explained domestic violence as a victim counseling was
part of mother’s current case plan “due to not completing her past Child
Protective Services case plan.â€
The separate disposition report recommended denying
reunification services to mother pursuant to section 361.5, subdivisions
(b)(10) and (b)(11), and setting a section 366.26 permanency planning hearing
as to the children, Dana and Mary, the whereabouts of whose alleged father was
unknown. As to the children’s
half-brother, John, Jr., the department recommended granting reunification
services to his father, John B., and setting a section 366.21, subdivision
(e) status review hearing. The report
also recommended permitting mother to have monthly visits with the children,
and permitting John B. to have weekly visits with John, Jr.
On December 12, 2011, the department filed amended
petitions on the children’s behalf, adding allegations under section 300,
subdivision (b), based on the unsanitary and hazardous conditions of the
home.
At the uncontested jurisdiction hearing on December 20,
2011, the juvenile court found the allegations of the petitions to be
true. At mother’s request, the
disposition hearing was continued to February 7, 2012.
At the hearing on February 7, 2012, the children’s
counsel expressed concern that he might have a conflict of interest in that the
department was making different recommendations for the children and
John, Jr., whom he also represented, thereby setting the minors on
different paths. After further
discussion, the court found a conflict existed and appointed new counsel to
represent Dana and Mary. The disposition
hearing was then continued to February 21, 2012.
The department filed a supplemental report, which reflected
that mother should have started a parenting and neglect class in early January
2012. However, due to her late payment
of the program fee, she would not be able to start the class until March
2012. On December 7, 2011, mother
tested positive for amphetamine and methamphetamine, and on January 10,
2012, tested positive for methamphetamine.
On January 12, 2012, she had a negative drug test, and two tests
from February were currently pending.
At the disposition hearing on
February 21, 2012, mother’s counsel argued that mother should be provided
reunification services because she was receiving substance abuse counseling,
had negative drug tests on January 12 and February 7, 2012, and her
pending drug test was also likely to be negative. Counsel also argued that offering
reunification services to John B. and not mother would undesirably send the
children and their half-brother on two different tracks, one of adoption and
the other of family reunification.
After listening to the argument of
counsel, the juvenile court adopted the department’s recommendations to deny
mother reunification services and set a section 366.26 hearing for
June 20, 2012, as to Dana and Mary.
Mother was permitted one-hour supervised visits to occur every other
week.
On March 7, 2012, mother filed
her first set of petitions under section 388, seeking reunification
services. In each petition, mother
averred she had “distanced herself from situations & people that have
influenced in the past†and was “attending classes SAP, domestic violence
victim & will soon be attending parenting classes beginning March 6,
2012.†Supporting documentation was
filed showing that mother entered a residential drug treatment program on
March 19, 2012, and that she had two negative drug tests.
On April 9, 2012, the
department filed a supplemental report responding to mother’s section 388
petitions. The report noted that mother
was visiting consistently and appropriately with the children. She was also successfully participating in
substance abuse and parenting counseling through her
been participating in these counseling components for a substantial length of
time.†Although she signed the initial
case plan on October 25, 2011, she did not enroll in substance abuse and
parenting counseling until March 2012.
In addition, mother still had not enrolled in counseling for domestic
violence as a victim. The report concluded: “Since [mother] has previously failed to
reunify with two of her children and has not shown that she is able to maintain
a stable and sober lifestyle for a substantial period of time, the [department]
is recommending that the 388 petition be denied.â€
At a hearing on April 9, 2012,
the juvenile court denied mother’s section 388 petitions, explaining:
“At
this time, this is a dynamic situation at best, which indicates that the mother
is now taking steps to deal with the issues that have—she’s had to deal with
for a significant period of time. And I
was not impressed in a positive way that since October of last year through
February of this year, she hadn’t done—done what was requested of her. So—that she’s doing those things or at least
making an attempt at this time is a positive direction, but it’s not
significant enough at this time to be a basis for granting these
petitions. So the petitions for both
minors are denied at this time. That’s
the basis for the court’s ruling.â€
On June 5, 2012, mother filed a
second set of second 388 petitions, seeking reunification services or,
alternatively, “a bonding study for the siblings as well as a bonding study
between the children and their mother.â€
According to the petitions and supporting documentation, mother was
enrolled in substance abuse counseling, and on June 11, 2012, would
receive certificates of completion for her parenting and neglect classes. Mother had also been testing negative for
drugs.
At a hearing on June 21, 2012, the juvenile court
granted the department’s request to continue the section 366.21 hearing to July 13,
2012, in order to give the department time to prepare a report and
recommendation in response to mother’s section 388 petitions. The court also addressed a section 388
petition mother apparently filed requesting reunification services as to
John, Jr. Because John, Jr.,
is not a subject of this appeal, the petition and the department’s response are
not parts of the record before us.
However, the reporter’s transcript of the June 21, 2012 hearing
reflects that the court granted the petition and ordered that mother be
provided reunification services for two months, until the time of John, Jr.’s,
section 366.21 hearing on August 21, 2012.
366.26 Hearing
On July 13, 2012, the department filed a section 366.26
report, recommending that mother’s parental rights be terminated at to Dana and
Mary and the children freed for adoption.
According to the report, on March 19, 2011, the children were
placed together in their preadoptive home apart from John, Jr. There were no recorded visits between the
children and their half-brother after the placement change. The children were adjusting to living without
him, and the report concluded “[t]he benefits and permanence of adoption
outweighs the benefits of continuing Dana and Mary’s relationship with their
half-brother.â€
As to the likelihood of the children being adopted, the
section 366.26 report noted that “[t]he children have presented with some
maladaptive behaviors, which were likely learned in the environment of their
family of origin.†The children’s
current caretakers reported these behaviors—which included the children
stuffing food in their mouths and destroying property, and Mary’s eating out of
a dog bowl and regurgitating food to eat it again—had decreased significantly
as the children became more secure in their environment. The report observed that “[i]t might be
difficult to find another pre-adoptive home for the girls considering past
behavior, however, the current caretakers are committed to the permanent legal
plan of adoption.â€
As to the children’s contact with
mother, the report observed that mother had attended 11 out of 14 scheduled
visits. Mother’s visits were described
as “moderately consistent†and “good with no areas of concern.†The report noted that during a visit on May 9,
2012, the children appeared comfortable with mother and called her
“mommy.†Mary told mother she missed her
and mother began to cry, stating she missed her too. Physical affection was reciprocated
throughout the visit. At the end of the
visit, Dana stated she was not ready to go.
After walking to the lobby, both girls gave mother a hug and kiss and
left with the caretakers without incident.
On May 10, 2012, the social
worker interviewed Dana in her preadoptive placement. When asked where she wanted to live until she
grew up, Dana responded, “right here.â€
When asked how she felt about visiting her mother, Dana said, “I don’t
like her.†When asked why, Dana said,
“Her don’t take care of us and don’t feed us.â€
When the social worker explained adoption and indicated her caretakers
would become her “new mommy and daddy,†Dana replied that “[t]hey are already
my mommy and daddy.†The social worker
observed that Mary was too young to make a statement.
In assessing the mother/child relationship, the report
concluded:
“Given
that the girls have spent a majority of their young lives up to this point with
their mother, both children obviously know their mother and have some level of
attachment to her. However, based on
statements made by Dana indicating she does not like her mother because her
mother did not take good care of her, Dana’s attachment to the mother appears
to be somewhat insecure. When the mother
was responsible for the daily care of the children, she was not a stable,
secure, and consistent source of care for the children. Based on the foregoing, the stability,
security, and consistency afforded by a permanent plan of adoption would
outweigh any detriment caused by termination of the mother’s parental
rights.â€
The department also filed a
supplemental report responding to mother’s section 388 petitions. The report reflected that mother was
participating successfully in the residential drug treatment program she
entered on March 19, 2012, and that she had 10 negative drug tests and no
positive drug tests over a five-month period.
Mother completed parenting and anger management programs in June
2012. However, she was not currently
enrolled in domestic violence as a victim counseling. Mother reported that she contacted Alliance
Against Family Violence and completed the application with them but claimed
they had not called her back.
An alcohol and drug counselor from the residential treatment
program reported that mother was “very responsible, compliant and ha[d] a
positive attitude.†Mother was allowed
to leave the facility on passes and “while on passes she stay[ed] compliant
with the program expectations.†The
counselor explained that mother, who was currently 24-weeks pregnant, “would be
allowed to stay in the program 60 days after the delivery of her child.†Mother’s expected exit date from the program
was November 1, 2012. The counselor
told the social worker that although the residential treatment program provided
domestic violence counseling, it did not provide a certificate for it; it was
up to the client to pursue any class not covered in the program.
When the social worker asked mother where she planned to
live when she completed the residential treatment program, mother said she
planned to resume living with her son’s father, John B., and his mother,
Debra, in their current two-bedroom apartment, and that she would continue to
live with them if she ever regained custody of the children.
John B. told the social worker
he was ordered to complete programs for substance abuse, parenting and neglect,
and to submit to random drug testing.
John B. reported he was enrolled in substance abuse counseling and
went to Narcotics Anonymous meetings when he had the urge to use drugs. He was also enrolled in a parenting class
that was scheduled to begin on June 26, 2012.
When the social worker spoke with John, Jr.’s, social
worker on July 11, 2012, she reported that John B. continued to
demonstrate he was unable to live a drug-free lifestyle. During the past five months, John B. had
tested positive for marijuana five times and positive for both marijuana and
amphetamine one time. He also had five
negative tests during the same period.
On June 19, 2012, the social
worker spoke with the children about where they wanted to live. Dana said she wanted to live “[h]ere†with
“[m]y Daddy Scott and Mommy Cheryl.â€
Mary said, “[s]ometimes I like to live here, sometimes I don’t.†The social worker attempted to speak further
with Mary, but Mary appeared to lose interest in the conversation.
The supplemental report noted that
the children’s placement was currently stable.
Although the children had only been there since March 19, 2012, the
prospective adoptive parents were committed to caring for them through the
permanent plan of adoption. The children
had some difficulties adjusting in the home but progress had been made. Their behavioral issues had diminished with
structure and consistency and their health was improving.
The social worker was informed by another social worker that
the children’s placement would be jeopardized if family reunification services
were ordered to mother. On June 19,
2012, the prospective adoptive father reported that he and his wife had come to
the difficult decision not to continue to act as foster parents for the
children if reunification services were ordered. He explained that they entered the process
for the sole purpose of adopting and that previous social workers had told them
it was almost a guarantee that parental rights would be terminated due to the
failure to reunify with other children.
He feared it would be too difficult for him and his wife to keep the
children in their home while their bond with them increased, knowing that they
would have to leave. The foster care
placement had also been a difficult transition for their biological
children. Although they were committed
and willing to help their biological children work through these issues, they
were not willing to do so if the children were not going to be a permanent part
of their family.
Notwithstanding mother’s recent progress in her case plan
and her positive visits with the children, the report recommended that the
juvenile court deny mother’s section 388 petitions, observing:
“The
mother had several opportunities to start on the initial case plan; however,
she spent several months demonstrating how much she was committed to abusing
drugs. The mother has provided several
months of clean drug test[s] and has taken nearly five months to demonstrate
her efforts to change her circumstances.
This is the first time the mother has attempted to address a case plan
and is to be commended for her efforts.
The mother has a very extensive history and has failed services before,
and though she has enrolled in counseling there is nothing to show she will be
successful over a significant amount of time and outside of a structured
program. The mother has not enrolled in
Domestic Violence as a victim and likely would not complete the counseling
within the six month time frame that is allowed for Family Reunification, which
is all that would be afforded due to the ages of the children. Further the mother continues to be involved
with [John B.] who is the father of her youngest child and reported father
of her unborn child. The mother plans to
reside with him upon the completion of her treatment. [John B.] is still abusing drugs. He is not making progress in his case plan as
he has failed to enroll in parenting and neglect counseling, and is unable to
demonstrate a drug free lifestyle even though he is enrolled in substance
abuse.â€
At the section 366.26 hearing on
July 13, 2012, the juvenile court first listened to arguments concerning
mother’s section 388 petitions. Mother’s
counsel began by pointing out that documentation had been submitted showing
that mother had enrolled in counseling for domestic violence as a victim with a
start date of July 12, 2012. He
then argued that the department’s recommendation seemed to rely heavily on the
current caretakers’ decision to withdraw as the children’s foster parents if
reunification services were ordered, and argued this was not a proper basis for
terminating parental rights. Rather, he
argued, “[t]he question is, what’s changed and is it in the children’s best
interest.†Counsel went on to assert that
mother, “although it’s late in the game … has finally gotten her act togetherâ€
and was “finally able to kick the terrible habit.†Counsel further suggested that in light of
the current caretakers’ “attitude†and the fact one of the children wanted to return
to mother, it was in the children’s best interests to order reunification
services for mother, or to grant her alternative request for a bonding study in
order to obtain more information.
The children’s counsel expressed conflicting feelings about
the case, observing that Mary was “connected to her mom†and “wants to go be
with her mom†and that the children also appeared to have a bond with their
half-brother. The children’s counsel
concluded, however, that “mother’s situation could be classified as a changing
situation, rather than a changed situation.â€
Counsel for the department began by
noting that the department was obligated to report all information to the
court, which was why the report had included information about the current
caretakers’ views on not continuing as foster parents if reunification services
were ordered. The juvenile court
interrupted and stated that it did not view the information about the
caretakers “as an ultimatum.†The
department’s counsel went on to argue that mother had not met her burden of
proof in proving circumstances had changed to an extent that the section 388
petitions should be granted, observing:
“Her circumstances certainly are changing [but] she has not demonstrated
sobriety outside of a controlled environment.
She has a lengthy substance abuse history. And she just enrolled in the other component
of domestic violence as a victim.â€
The juvenile court then ruled as
follows:
“All
right. Of course right now we’re
limiting ourselves to the issue of—or the issues presented in the 388
petition. These children are
adoptable. They are in a stable
home. And it’s drug free.
“According
to the report, the mother intends to maintain a relationship with somebody who
continues to have problems and is not doing anything to take care of those
problems involving drugs and parenting and neglect. And the prospects for these children, they
would not be in the best interest. It
would be a bad situation as opposed to what is being recommended. Otherwise on the 26, mother’s circumstances
at this time, I think can be best characterized as … changing … not changed.
“We
have a long term problem that has not been properly addressed. Although there are efforts being made. I certainly hope that she does change, but
that has not occurred up to this point.
“The
best interest of these minors is to be in a stable home. And there is some equivocation by one of the
children, but it’s one of those that she—it says here in the report she likes
living with her biological mother and her current caretakers. She has mixed emotions about that, which
would be normal. But once her situation
stabilized, the Court feels it would be in her best interest that this petition
be denied.â€
After the court made this ruling,
mother’s counsel renewed the request for a bonding study. Children’s counsel responded that he thought
there was no basis at that point for a bonding study and that “the information
… contained in this 388 report essentially covers the substance of what a
bonding study would present.†The
juvenile court took the matter under submission and proceeded to announce its
order to terminate mother’s parental rights and free the children for
adoption. The same day, the court issued
a minute order denying mother’s request for a bonding study.
DISCUSSION
A parent and child in juvenile dependency proceedings share
a fundamental interest in reuniting, but only to a point. (In re
R.H. (2009) 170 Cal.App.4th 678, 697.)
Once a court terminates reunification services or, as in this case,
denies services at the outset, the interests of the parent and the child
diverge. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.)
The child has a fundamental, independent interest in
belonging to a family unit, as well as compelling rights to be protected from
abuse and neglect. (In re Marilyn H. (1993) 5
Cal.4th 295, 306 (Marilyn H.).) In addition, the child is entitled “to have a
placement that is stable, permanent, and that allows the caretaker to make a
full emotional commitment to the child.â€
(Ibid.)
Consequently, at the permanency planning stage, the juvenile
court’s focus shifts from family reunification toward promoting the child’s
need for permanency and stability. (
p. 309.) Furthermore, adoption
gives the child the best chance at a full emotional commitment from a
responsible caretaker. (
45, 53.)
of Section 388 Petitions
Any
party may petition the juvenile court to modify or set aside a prior dependency
order pursuant to section 388 on grounds of changed circumstance or new
evidence. (§ 388, subd. (a).) The party bringing the section 388 petition
must also show the proposed change is in the best interests of the child. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) Section
388 provides a means for the court to address a legitimate change of
circumstances even at the permanency planning stage while protecting a child’s
need for prompt resolution of his or her custody status. (Marilyn H.,
supra, 5 Cal.4th at
p. 309.) Whether the juvenile court
should modify a previously made order rests within its discretion and its
determination will not be disturbed absent a clear abuse of discretion. (Stephanie
M., supra, at p. 318.)
Mother contends the juvenile court
abused its discretion when it denied her second set of section 388 petitions
seeking reunification services as to Dana and Mary. Mother argues she established a change of
circumstances by participating in her residential drug treatment program,
completing parenting and neglect classes and anger management group, enrolling
in other classes, submitting to random drug testing with negative results, and
consistently visiting the children.
Relying on the factors set forth in In
re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.), mother asserts the evidence shows it was in the
children’s best interests to modify the prior order denying reunification
services.
Against the backdrop of mother’s troubled past, the juvenile
court did not abuse its discretion in finding that her recent efforts at
rehabilitation or her five-month period of sobriety established only
warrant a modification of the court’s order denying reunification
services. (See Marilyn H., supra, 5
Cal.4th at p. 309 [burden on parent to show changed circumstances];
Cal.App.4th 38, 49 [merely changing circumstances].) Mother’s relatively recent sobriety was
untested by the stresses of ordinary life outside her residential treatment
program, and her plan once she left this structured environment was to resume
living with someone who was continuing to abuse drugs. Furthermore, despite frequent reminders,
mother did not begin participating in counseling for domestic violence as a
victim until the proverbial eve of the section 366.26 hearing. On this record, the juvenile court could
reasonably reject mother’s argument that a legitimate change of circumstances
occurred following its denial of reunification services.
Additionally, mother failed to show
that providing her reunification services would be in the children’s best
interests. In Kimberly F., the appellate court identified three principle
factors relevant to the juvenile court’s evaluation of best interests in the
context of a section 388 petition: (1)
the seriousness of the problem that necessitated dependency and the reason the
problem continued; (2) the strength of relative bonds between the dependent
child to the parent and caretakers; and (3) the degree to which the problem may
be easily removed and the degree to which it actually has been. (Kimberly F.,
supra, 56 Cal.App.4th at
p. 532.)
Applying the Kimberly F. factors, mother contends that providing her
reunification services would serve the children’s best interests. Specifically, mother contends that “the
problem was not too serious to correct since, by the time of the July 13,
2012 hearing, mother had addressed her serious substance abuse problem.†Additionally, mother contends that she had a
strong bond with the children as evidenced by their positive and affectionate
interactions during visitation. Finally,
mother contends the problem resulting in the children’s removal had been
ameliorated, citing to her recent completion of parent and neglect training and
a 12-week anger management program, her negative drug testing, and the fact she
had remained compliant with her residential treatment program when allowed to
go out on passes.
We concur with the juvenile court’s
evaluation of the children’s best interests.
The seriousness of the problem leading to the children’s dependency
status is not in dispute. Although
mother had made commendable efforts to address the problem, the record does not
support her suggestion that she had all but conquered the problem at the time
of the section 366.26 hearing, or that she had ameliorated the problem to such
a degree that ordering reunification services would be in the children’s best
interests. As discussed above, she only
had five months of sobriety following years of substance abuse. Even though she remained in compliance with
her treatment program while out on passes, she had a sober living environment
to which she could return. This would
not be the case once she left the residential program and resumed living with
John B., who continued to use drugs and was failing to make progress in
his case plan. Finally, mother had only
just begun to address the issue of domestic violence, which was included in her
current case plan because of her failure to address this issue in the past with
respect to the children’s half-siblings.
As to the strength of relative bonds
between the children to mother and to their caretakers, despite showing
affection towards mother during visits, Dana expressed a preference to live
with her caretakers and told the social worker she already considered them to
be her “mommy†and “daddy.†Dana also
expressed dislike for her mother for failing to take care of her and her
siblings. Although Mary appeared
attached to mother, she expressed that she liked living both with her mother
and her caretakers. Moreover, the
section 366.26 report indicated the children’s maladaptive behaviors had
greatly decreased while placed with the caretakers.
We conclude on this record that the juvenile court did not
abuse its discretion in denying mother’s section 388 petitions. In so concluding, we reject mother’s claim
that it was an abuse of discretion to deny her petitions as to Dana and Mary
after previously granting her section 388 petition as to John, Jr. Because John, Jr.’s, case was proceeding on a
different track than the current case, we are limited by the record before us
to evidence pertaining to Dana and Mary.
In light of that evidence, we cannot say the juvenile court abused its
discretion or that its conclusion was “‘“arbitrary, capricious, or patently
absurd.â€â€™â€ (Stephanie M., supra,
7 Cal.4th at p. 318.) Mother cites
and our independent research has uncovered no authority that it would be
appropriate to find an abuse of discretion based on a ruling in a related case
with a different procedural posture.
of Request for a Bonding Study
Bonding
studies can aid the court in determining the applicability of the beneficial
relationship exception to the termination of parental rights. (See In
re Tabatha G. (1996) 45 Cal.App.4th 1159, 1167.) However, the court is not required to order a
bonding study as a condition precedent to terminating parental rights. (In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) “While it is not beyond the juvenile court’s
discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for
study is fully consistent with the scheme of the dependency statutes, and with
due process.†(In re Richard C. (1998) 68 Cal.App.4th 1191, 1197, italics
added.)
Continuances in juvenile court are expressly discouraged
because the Legislature seeks to keep children from remaining in dependency
limbo any longer than necessary. (
Cal.App.3d 734, 743.) They are permitted
only upon a showing of good cause. (§ 352, subd. (a).)
Here, mother provided no justification, let alone good
cause, for the delay in requesting the bonding study, which would have required
a continuance of the permanency planning hearing. The juvenile court denied mother
reunification services on February 21, 2012. Mother did not request a bonding study until
June 5, 2012, and provided no justification for the delay in making the
request. The juvenile court clearly did
not abuse its discretion in denying mother’s request.
to Apply the Beneficial Relationship Exception
Mother contends the juvenile court erred in failing to find
an exception to the termination of parental rights under what is commonly
referred to as the beneficial relationship exception. (See § 366.26, subd. (c)(1)(A).) This exception applies where “[t]he parents
... have maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship.†(Id.,
subd. (c)(1)(A)(1).) The parents have
the burden of proving that the beneficial relationship exception applies. (In re
Derek W. (1999) 73 Cal.App.4th 823, 826.) “The juvenile court does not have a sua
sponte duty to determine whether an exception to adoption applies.†(In re
Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) A parent who fails to raise an exception to
the termination of parental rights below, waives the right to raise the issue
on appeal. (Ibid.; In re Erik P.
(2002) 104 Cal.App.4th 395, 402–403.)
This rule was explained in In re
Erik P., at p. 403:
“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 [a 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.â€
Mother never raised this exception before the juvenile
court. Accordingly, she has forfeited
the argument on appeal.
The juvenile court’s orders denying mother’s petitions
pursuant to Welfare and Institutions Code section 388 and terminating her
parental rights pursuant to Welfare and Institutions Code section 366.26 are
affirmed.
name="_ftn1" title="">* Before Hill,
P. J., Wiseman, J. and Peña, J.
name="_ftn2" title="">[1] All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
