In re S.L.
Filed 9/23/13 In re S.L. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re S.L. et al., Persons
Coming Under the Juvenile Court Law.
B247263
(Los Angeles
County
Super. Ct.
No. CK82068)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.L.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County, Marilyn Kading Martinez, Juvenile Court Referee. Affirmed.
Konrad S.
Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel,
James M. Owens, Assistant County Counsel,
and Tracey F. Dodds, Senior Associate County
Counsel, for Plaintiff and
Respondent.
___________________________
>
M.L., the
mother of S.L. and Janae L., appeals from the juvenile court’s orders denying
her petition for modification pursuant to Welfare and Institutions Code section
388
366.26. M.L. contends she demonstrated
changed circumstances following the termination of family reunification
services and her frequent, loving contact with the children warranted
application of the parent-child relationship exception to termination of
parental rights provided in section 366.26, subdivision (c)(1)(B)(i). We affirm.
FACTUAL AND PROCEDURAL BACKROUND
1. The
Initiation of Dependency Proceedings and Reunification Efforts
In April 2010 M.L., who was on
probation for fraud, lived with her mother, Maria L., and children,
two-year-old S.L. and three-month-old Janae.
On April 27, 2010 the Los Angeles County Probation Department
conducted a compliance check of the home.
M.L. was arrested for violating the conditions of her probation after an
agent found a blank check and credit cards and mail not belonging to M.L. M.L. admitted to the agent she had smoked
methamphetamine on the previous day. The
agent requested the Los Angeles County
Department of Children and Family Services (Department) conduct a child
safety assessment of the home.
M.L.
admitted to the investigating social worker she had been under the influence of
methamphetamine on April 26, 2010, but said Maria was unaware of her condition
because M.L. had left the home to smoke.
M.L. also acknowledged there had been ongoing domestic violence in her
relationships with the children’s fathers, Richard and O.M.
regularly used methamphetamine together.
The Department detained the children from M.L. and temporarily placed
them in Maria’s home.
On April
30, 2010 the Department filed a petition on behalf of S.L. and Janae, alleging
violations of section 300, subdivisions (b) (failure to protect) and (g) (no
provision for support) arising out of M.L. and the fathers’ past drug abuse,
M.L’s current drug abuse and the fathers’ unknown whereabouts and failure to
provide for the children. At the
detention hearing the juvenile court found a prima facie case for detaining the
children and ordered them placed in the home of Maria with monitored visits by
M.L., who was in custody at that time.
In a June
18, 2010 jurisdiction/disposition report the Department recounted an interview
with M.L. in which she explained she had begun using methamphetamine in 2000,
when she was 21 years old, and was a “functional addict†until the end of 2007
when she was arrested for forgery while pregnant with S.L. She had been ordered to attend a 12-step
program, which she completed. With
respect to the domestic violence disputes between M.L. and the fathers, the
report noted both men had threatened to kill M.L. and Maria had seen bruises on
M.L’s. face. The report further stated
M.L. had moved into a sober living home after her release from custody; Maria
and the children were living next door.
On
June 18, 2010 the Department filed a first amended petition removing the
allegation M.L. had a current problem with methamphetamine and adding
allegations M.L. was the victim of domestic violence perpetrated by O.M. and
Richard. M.L. and the Department
successfully mediated the first amended petition. M.L. agreed to complete a parenting program,
participate in a drug-testing program, participate in a substance abuse program
if she missed or had a positive drug test and participate in individual
domestic violence counseling. She
further agreed the children would be placed with Maria. M.L. was allowed to live in the home as long
as she complied with her case plan and tested negative for drugs. At the July 23, 2010 jurisdiction and
disposition hearing, continued from June 18, 2010, the court declared the
children dependents of the court and made orders consistent with the mediation
agreement. M.L. was warned she had only
six months for reunification due to the age of the children.
A little
more than three weeks later M.L. tested positive for amphetamine and
methamphetamine. She moved into her
adult nephew’s home, and the Department informed her she had to enroll in a
a treatment center counselor informed the Department it was going to discharge
M.L. because her attendance was inconsistent and she had not been in compliance
with the outpatient treatment agreement.
In October 2010 M.L. began participating in the center’s intensive
outpatient program, including attending parenting classes, but she tested
positive for amphetamines, methamphetamine and cocaine metabolites on November
4, 2010. She did not appear for the
November 19, 2010 drug test.
In a report
prepared for the six-month review hearing (§ 366.21, subd. (e)), the Department
recommended the children remain suitably placed with Maria and M.L. receive six
additional months of reunification services.
The Department explained M.L. had been participating in individual
therapy sessions and had accepted responsibility for her actions, but was
struggling with sobriety. The Department
described M.L.’s visits with S.L. and Janae, occurring four to five times a
week, as appropriate. She openly hugged
and kissed the children, and they appeared attached and comfortable with
her. Maria reported M.L. “was very
motherly and always addresses the children’s needsâ€; but, occasionally M.L. was
offensive to Maria, accusing her of not properly using Department funding for
the children. At the January 21, 2011
hearing the court ordered the children remain suitably placed and M.L. continue
to receive reunification services.
On February 24, 2011 the
Department was informed M.L. was “referred to a higher level of care†because
she had attempted to falsify a drug test, failed to complete her writing
assignments and “appeared to not make a commitment to comply with her treatment
program requirements.†M.L. enrolled in
another treatment program in March 2011, but was terminated from that program a
month later after she had failed to attend meetings. In its June 2011 report for the 12-month
review hearing (§ 366.21, subd. (f)), the Department recommended
reunification services for M.L. be discontinued and proceedings continued for
the adoption of the children by Maria.
The Department explained M.L.’s visits with the children had become
infrequent (once per month), M.L. argued with Maria during the visits, M.L. had
failed to drug test since December 2010, her whereabouts were unknown and it
was unknown whether she was receiving treatment. M.L., however, appeared at the 12-month
review hearing and requested the matter be set for a contested hearing. At the July 27, 2011 contested hearing the
court terminated M.L.’s reunification services and set a section 366.26
selection and implementation hearing.
For the
next 13 months the matter slowly proceeded while Maria’s adoptive home study
was prepared and the juvenile court was confronted with evolving
circumstances: O.M, who had been
incarcerated, was released and indicated he wanted to care for S.L.; S.L. was
assessed as in need of mental health services because she had expressed fear of
M.L., who would raise her voice toward Maria in front of S.L.; and Maria
requested conjoint counseling with S.L. to improve communication between the
two.
2. The
Section 388 Petitions
On August 27, 2012 M.L. filed a
petition under section 388 requesting the court order further reunification
services and unmonitored visitation. As support for the threshold determination of
changed circumstances, M.L. stated she had been in a residential treatment program
since June 24, 2012, participated in counseling, parenting and drug education
classes, tested negative for drugs and visited the children on a weekly
basis. On September 20, 2012 the court
denied the petition in light of M.L.’s long history of substance abuse and
short time in the new treatment program, but suggested it might be persuaded to
grant a future petition.
Less than a
month later the residential treatment facility informed the Department M.L. was
going to be discharged from the program because she had made contact with an
abusive boyfriend, who was about to be released from prison, in violation of
the facility’s instruction not to do so.
A letter to the Department stated, “Client was placed on a safety plan
due to her repeated refusal to comply with the rules. Client did make some progress with learning
to adapt and begin working on behavioral change. From the beginning client has struggled with
her feelings for her abusive boyfriend who was incarcerated the whole time she
was in treatment. He was recently
released on 11/20/2012. It is this
writer’s opinion that client’s behavior changed and her focus was not on
herself and her children anymore. Client
began contacting this person . . . . It is the opinion of the treatment team that
client was no longer willing to work on her issues and remain focused on
treatment therefore client discharged as of 11/28/12.†M.L. told the Department she believed she had
been wrongfully discharged and only emailed the former boyfriend to say
goodbye.
On December
21, 2012 M.L. filed a second section 388 petition seeking additional
reunification services, contending she had attended the residential treatment
program from June 24, 2012 through November 28, 2012 and participated in
counseling, drug education classes and drug testing. She asserted it would be in the best
interests of S.L. and Janae to provide her with additional reunification
services because she lived in the same building as the children, visited frequently
and the children were closely bonded to her.
At the
previously scheduled January 7, 2013 section 366.26 selection and
implementation hearing, Maria confirmed she wanted to adopt the children and
said she did not believe M.L. should be given another chance. Counsel for M.L. requested the section 388
petition be set for a hearing so she could provide additional information in
support of the petition, including a letter attesting M.L. had completed the
treatment program and made substantial progress.
The court
denied M.L.’s request for a hearing on the section 388 petition and summarily
denied the petition itself, explaining, although the letter indicated M.L. had
completed a five-month program, “These children have been before this court for
a little more than two and a half years at least in part due to their mother’s
substance abuse. She entered a program
approximately two years after the petition was filed, which was approximately
one year after the court terminated reunification services. She completed a five-month residential program. . . . There’s no evidence she’s in an aftercare
program. . . . At any
rate, she did very well in her residential treatment program, but she is at the
beginning of addressing her issues.
Given a very long history and five months of participation in a program,
I cannot find it is in the children’s best interest to grant the request or set
the matter for hearing.†Also finding
the children had resided for a substantial period of their lives with Maria,
the only person they had known as their caretaker and who wanted to adopt them,
the court terminated M.L.’s parental rights.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Denying M.L.’s
Section 388 Petition
Section 388 provides for
modification of juvenile court orders when the moving party presents new
evidence or a change of circumstances and demonstrates modification of the
previous order is in the child’s best interests. (In re Stephanie M. (1994)
7 Cal.4th 295, 317; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In
re Y.M. (2012) 207 Cal.App.4th 892, 919; see Cal. Rules of Court, rule
5.570(e).)
name="_ftnref3" title="">[3] To obtain a hearing on a section 388
petition, the parent must make a prima facie showing as to both of these
elements. (In re Brittany K. (2005)
127 Cal.App.4th 1497, 1504; In re Justice P. (2004) 123 Cal.App.4th
181, 188.) The petition should be
liberally construed in favor of granting a hearing, but “[t]he 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.â€
799, 806; accord, In re Brittany K., at p. 1505; see People v.
Bell (1989) 49 Cal.3d 502, 554 [prima facie evidence is “such proof as will
support a ruling or order in favor of the moving party if no controverting
evidence is presentedâ€] (conc. opn. of Kaufman, J.).) “[T]o be entitled to a
hearing . . ., [the parent is] not required to establish a
probability of prevailing on [his or] her petition.†(In re Aljamie D. (2000) 84 Cal.App.4th
424, 432.) “In determining whether the
petition makes the necessary showing, the court may consider the entire factual
and procedural history of the case.†(In
re Justice P., at p. 189.)
Even if a
parent presents prima facie evidence supporting the allegations contained in
the petition, however, “[a] petition [that] alleges merely changing
circumstances and would mean delaying the selection of a permanent home for a
child to see if a parent, who has repeatedly failed to reunify with the child,
might be able to reunify at some future point, does not promote stability for
the child or the child’s best interests.â€
(In re Casey D. (1999) 70 Cal.App.4th 38, 47; accord,
151 Cal.App.4th 184, 206.) The
parent must also “show that the undoing of the prior order†would be in the
child’s best interests. (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 529; accord, In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) “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 interest 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 interest of the child.†(In re Stephanie M., supra, 7 Cal.4th
at p. 317.)
for abuse of discretion. (
351, 358; In re Brittany K., supra, 127 Cal.App.4th at
p. 1505.) We may disturb the juvenile
court’s exercise of that discretion only in the rare case when the court has
made an arbitrary, capricious or “patently absurd†determination. (In re Stephanie M., supra, 7 Cal.4th
at p. 318.) We do not inquire whether
substantial evidence would have supported a different order, nor do we reweigh
the evidence and substitute our judgment for that of the juvenile court. (Id. at pp. 318-319.)
In the case
at bar the juvenile court did not abuse its discretion in summarily denying the
section 388 petition. Although five
months of sobriety is commendable, given M.L.’s eight-year history of substance
abuse and the fact the five months did not begin until 11 months after
reunification services had been terminated, her circumstances were changing,
not changed. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [mother and father’s
three-month old rehabilitation was not changed circumstances; “both have
extensive histories of drug use and years of failing to reunify with their
childrenâ€].)
Even if M.L.’s
petition sufficiently demonstrated changed circumstances, moreover, her
explanation as to why it would be in the children’s best interest to delay
selection of a permanent home falls woefully short. To be sure, “best interests is a complex
idea.†(
F. (1997) 56 Cal.App.4th
519, 530.) Among the factors to be
considered in determining whether to grant a section 388 petition are the
seriousness of the problem that led to the dependency, the reason the problem
continued, the strength of the parent-child and child-caretaker bonds, the
length of time the child has been in the system, the nature of the change of
circumstance, the ease by which the change could be achieved and the reason the
change did not occur sooner. (
contends only that she lives in the same building as the children (although she
had been in a residential treatment program for an extended period), visits
frequently and has established a bond with them. Those circumstances do not outweigh the
gravity of M.L.’s almost decade-long struggle with addiction, the length of
time the proceedings have been pending and the children have been with Maria,
the fact Janae was only three months old when she was initially detained and
that mental health services were required for S.L. because of her fear of her
mother. The juvenile court did not abuse
its discretion in finding the presumption a permanent plan is in the children’s
best interest had not been rebutted.
2. The
Court Did Not Err in Terminating M.L’s Parental Rights
Section
366.26 directs the juvenile court in selecting and implementing a permanent
placement plan for a dependent child.
The express purpose of a section 366.26 hearing is “to provide stable,
permanent homes†for dependent children.
(§ 366.26, subd. (b).) Once
the court has decided to end parent-child reunification services, the
legislative preference is for adoption.
(§ 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 [“[i]f the
child is adoptable . . . adoption is the norm. Indeed, 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 childâ€];
Cal.4th 1217, 1235 [“[o]nce services have been terminated, the juvenile court’s
focus shifts from family reunification to the child’s permanent placement and
well-being, and the burden accordingly shifts to the parent to show that a
termination of parental rights is not in the child’s best interestsâ€]; see In
re Marilyn H. (1993)
5 Cal.4th 295, 307 [once reunification efforts have been found
unsuccessful, the state has a “compelling†interest in “providing stable,
permanent homes for children who have been removed from parental custody†and
the court then must “concentrate its efforts . . . on the child’s
placement and well-being, rather than on a parent’s challenge to a custody orderâ€].) When the court finds by clear and convincing
evidence the child is likely to be adopted, the statute mandates judicial
termination of parental rights unless the parent opposing termination can
demonstrate one of six enumerated exceptions applies. (§ 366.26, subd. (c)(1)(B); see In
re Matthew C. (1993) 6
Cal.4th 386, 392 [when child adoptable and declining to apply one of the
statutory exceptions would not cause detriment to the child, the decision to
terminate parental rights is relatively automatic].)
termination M.L. asserts here, a parent must prove he or she has “maintained
regular visitation and contact with the child and the child would benefit from
continuing the relationship.†(§ 366.26,
subd. (c)(1)(B)(i); see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden to show
that the statutory exception appliesâ€].)
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.†(In re
Autumn H. (1994)
27 Cal.App.4th 567, 575 [“the court balances the strength and quality of
the natural parent/child relationship in a tenuous placement against the
security and the sense of belonging a new family would conferâ€].) No matter how loving and frequent the
contact, and notwithstanding the existence of an “emotional bond†with the
child, “the parents must show that they occupy ‘a parental role’ in the child’s
life.†(In re Andrea R. (1999) 75 Cal.App.4th 1093,
1108; see In re Beatrice M.
(1994) 29 Cal.App.4th 1411, 1418.) The relationship that gives rise to this
exception to the statutory preference for adoption “characteristically aris[es]
from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily
required, although it is typical in a parent-child relationship.†(In re Casey D., supra, 70 Cal.App.4th at p. 51.) Moreover, “[b]ecause a section 366.26 hearing
occurs only after the court has repeatedly found the parent unable to meet the
child’s needs, it is only in an extraordinary case that preservation of the
parent’s rights will prevail over the Legislature’s preference for adoptive
placement.†(In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
M.L.’s
argument she has had loving, frequent contact with S.L. and Janae during most
of the time the family has been involved with the dependency system, and the
children viewed her as their mother, is not supported by the record. Although the Department described visitation
in its January 21, 2011 report as frequent and “very appropriate†with loving
and maternal conduct, the Department’s June 24, 2011 described an entirely
different scenario: “During this period,
mother has had infrequent visitation with the children, approximately one visit
per month. . . . [Maria]
reported mother to be very difficult, and indicated she could no longer
monitor. . . . [Maria]
had reported when mother[] visits, they are too short and she does not make the
time to engage with the children.
[Maria] further disclosed mother did not take the children anywhere, and
constantly argued with her in front of the children.†Indeed, S.L. required mental health services
because she was afraid of M.L., who raised her voice at, and argued with, Maria
in front of S.L.
While M.L.
may have subsequently become more present and active, her claim she saw the
children virtually every day in the seven months preceding the
section 366.26 hearing is similarly unsupported by the record. The Department’s report states, as of
November 15, 2012, M.L. “calls and speaks with the children on a daily
basis,†not that M.L., who was in a residential treatment facility, visited
with them daily. Regardless whether the
visits during those seven months were daily or weekly, M.L never moved beyond
monitored visitation, a touchstone for the establishment of the parental role critical
to the section 366.26, subdivision (c)(1)(B)(i), parent-child relationship
exception. (See In re K.P. (2012) 203 Cal.App.4th 614, 622 [“K.P. had been removed
from Kimberly G.’s custody when he was less than one month old, and Kimberly G.
had never progressed beyond monitored visitationâ€].) With a prospective adoption in place, the
juvenile court did not abuse its discretion in terminating M.L.’s parental
rights.
DISPOSITION
The orders of the juvenile court
are affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
Code.
