Opinion
F074612
07-26-2017
In re M.L., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. A.H., Defendant and Appellant.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CEJ300181-2)
OPINION
APPEAL from orders of the Superior Court of Fresno County. Mary D. Dolas, Judge. Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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A.H. (mother) appeals from the juvenile court's orders summarily denying her modification petition (Welf. & Inst. Code, § 388, subd. (a)(1)) and terminating her parental rights as to her now 10-year-old daughter, M.L., at a contested section 366.26 hearing. Mother contends the juvenile court erred in finding her petition failed to make a prima facie showing that returning M.L. to her custody under family maintenance would serve M.L.'s best interest. She further contends the juvenile court erred in not finding that the beneficial parent-child relationship and sibling relationship exceptions to adoption (§ 366.26, subd. (c)(1)(B)(i) & (B)(v)) barred termination of her parental rights. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2014, the Fresno County Department of Social Services (Department) removed then seven-year-old M.L. and her 10-year-old sister, J.H., from mother's custody because she exposed them to domestic violence. The precipitating event was a domestic altercation in which mother and her ex-girlfriend doused each other with lighter fluid in the girls' presence. Though the girls were living with mother in Fresno at the time, only J.H. had spent a significant amount of time with mother. M.L. had lived intermittently with her paternal grandparents in Bakersfield since the age of three months. As a result, J.H. had a closer relationship with mother and relied on her heavily for emotional support. In addition, J.H. suffered from bipolar disorder and was emotionally unstable, aggressive and demanding, which made her difficult to place. M.L., on the other hand, was well adjusted and comfortable living with her grandparents.
In October 2014, the juvenile court removed the girls from mother's custody and the Department placed J.H. in a group home and M.L. with her grandparents in Bakersfield. The court ordered mother to participate in reunification services, which the court continued until the 18-month review hearing in March 2016. Mother's services included weekly therapeutic supervised visits with J.H. at the Department's visitation center in Fresno and weekly visits with M.L. in Bakersfield under the supervision of the grandparents. The court also ordered monthly sibling visitation.
The juvenile court did not order reunification services for M.L.'s father.
J.H.'s extreme behavior and insistence on returning to mother's custody dominated the reunification process. She was verbally and physically aggressive and required a lot of attention. In addition, her moods shifted quickly. When she did not get the attention she wanted, she became upset and threw tantrums. She often cursed, called people names, yelled and threatened to harm herself or others. Her visits with mother often triggered this behavior. By March 2015, she had been involuntarily committed 14 times since entering foster care, four of those times requiring hospitalization in excess of 72 hours. By November 2015, she had been in at least 28 placements. Finally, after J.H. refused to exit the car to begin another placement, the Department placed her with mother on an extended visit.
J.H.'s erratic behavior continued in mother's care and her moods cycled rapidly. On December 10, 2015 the Department received a report from school that J.H. was "in a state of psychosis" throughout the day, alternating between laughing and crying and anger to calm in a span of 15 minutes. She punched the staff and held one of them in a headlock. She called one of the staff a "fat cow" and "ugly old ass bitch." She threw a recycling bin, threatened to kill one of the staff and her family, slapped, punched and kicked two of the male staff, charged, grabbed hair, slapped faces and screamed profanities until the sheriff was called and took her to a facility.
Meanwhile, mother was manipulating M.L. to lie and act out so she could return to mother's custody. In March 2015, the paternal grandfather overheard mother ask M.L. whether she was "being good." When M.L. responded in the affirmative, mother asked, "You know if you are good they won't let you come home to me, right?" Around this same time, M.L. was acting out at school and getting into trouble. As a result, the juvenile court modified its visitation order in May 2015 to therapeutic supervised visitation.
By March 2016, mother had completed her court-ordered services, including substance abuse treatment, anger management, domestic violence, parenting and individual mental health therapy, and J.H. remained in her custody on extended visitation. However, mother's visitation with M.L. had not progressed beyond therapeutic supervised visitation. The Department was concerned about returning M.L. to mother's custody because she and J.H. did not have a good relationship and J.H. had been verbally abusive to M.L. during visitation. In addition, mother was not able to de-escalate J.H.'s behavior when the girls were together and J.H. was angry.
In its report for the 18-month review hearing, the Department recommended the juvenile court return J.H. to mother's custody under a plan of family maintenance and terminate mother's reunification services and assess M.L. for adoption.
In March 2016, following a contested hearing, the juvenile court ordered J.H. returned to mother's custody under family maintenance. The court found it would be detrimental to return M.L. to mother's custody, terminated reunification services and set a section 366.26 hearing for June 2016. The court reduced mother's visits with M.L. to twice monthly. At the conclusion of the hearing, mother informed the court that her then seven-year-old daughter C.H. was living in her home.
Mother filed an extraordinary writ petition from the juvenile court's setting order, contending there was insufficient evidence to support its finding of detrimental return. We denied the petition.
A.H. v. Superior Court (June 21, 2016, F073440) [nonpub. opn.].) Mother also challenged as insufficient the evidence supporting the juvenile court's reasonable services finding.
In October 2016, mother filed a section 388 petition, asking the juvenile court to reopen reunification services and return M.L. to her under family maintenance. As evidence of changed circumstances, she alleged that M.L. would be safe if returned to her custody because C.H. had lived with her and J.H. for seven months without problems. As evidence of best interest, she alleged that M.L. expressed her desire to return home and that M.L. did not understand the concept of adoption.
The juvenile court denied mother's petition because it did not state new evidence or changed circumstances. On October 24, 2016, mother filed a second section 388 petition, requesting the same modification and alleging the same evidence. However, she also attached letters from a friend and from a maternal aunt who had placement of J.H. briefly. Mother's friend stated that mother had changed and that she took good care of the children. The aunt stated that J.H.'s behavior had improved and that she interacted well with C.H. and did not pose a threat to C.H. Mother also attached a visitation log for a visit in May 2016. According to the social worker who supervised the visit, J.H. told M.L. that she was beautiful and gave her a big hug and kiss. M.L. styled J.H.'s hair and sang to her. The girls interacted well and hugged at the end of the visit.
In October 2016, the juvenile court convened a contested section 366.26 hearing. Mother's attorney argued that M.L. and mother shared a parent-child bond and that adoption would not benefit M.L. She did not refute the Department's opinion that M.L. was adoptable. The court also had before it mother's second section 388 petition.
The juvenile court denied mother's section 388 petition, finding that it failed to make a prima facie showing that there had been a change in circumstances and that reunification would serve M.L.'s best interest. The court stated mother had not "demonstrated the ability to advance permanence and stability, which is the criteria the Court must look at in regards to the minor's best interest at this stage of the case."
M.L. testified she did not remember living with mother but when specifically asked, remembered they watched movies, cooked and took walks together. She remembered enjoying these activities with mother. She celebrated holidays like Christmas or Thanksgiving with her grandparents. She enjoyed living with her grandparents because she was able to "hang out" with her cousins and play with her friends. She wanted to continue seeing mother but said mother "has to like work hard enough to try to see if she can get me back. But I know that's not going to happen because, um, she said that I was going to be adopted." She said she missed J.H. and enjoyed their visits when J.H. "acts good." She was sad and cried when J.H. acted "bad" and they had to cut visits short.
Social worker Bee Xiong testified it was his responsibility to develop a permanent plan for the children. He observed mother's visitation with M.L. in May, July and August 2016. M.L. looked forward to visits with mother. However, mother had recently been canceling visits, which no longer upset M.L. or caused her to inquire why mother cancelled. Xiong did not believe there was a bond between mother and M.L. that outweighed the benefit of adoption or that terminating mother's parental rights would be detrimental to M.L. He said M.L. had a very positive relationship with her grandmother and the grandparents provided her a stable home and met her needs. He said M.L. did not understand the implications of adoption.
Carol Rock, visitation coordinator, supervised two or three visits with mother and M.L. and observed a bond between them. The last visit she observed was on October 3, 2016. She described mother as "very nurturing" and said she and M.L. enjoyed each other's company. In addition, Rock drew from questions M.L. asked and a statement she made that she and mother were bonded. For example, M.L. asked mother why she could not go home with her and asked mother to move to Bakersfield to be closer to her. She also said she wanted to tell the court she wanted to live with mother. Rock also observed M.L. and J.H. interact during visitation and described it as "a little rough." She did not believe they knew how to interact as sisters but loved each other. She did not observe mother interact with the girls together.
Mother testified she cancelled four visits because she was confused about the dates and she had a family emergency, which required her to leave the state. During visits, she and M.L. played, talked and hugged and when visits ended, M.L. told her she loves her and reminded her not to miss any more visits. Mother believed M.L. would suffer emotionally if she were adopted because she would not be able to see mother anymore. She said M.L. and J.H. used to participate in activities together such as cooking, taking walks, watching movies, playing games and celebrating special occasions. She said they missed each other and J.H. cried and yelled because she could not see M.L. J.H. was angry and heartbroken and wanted to be a family again.
The juvenile court found that M.L. was adoptable and terminated parental rights. In ruling, the court addressed the beneficial parent-child and sibling relationship exceptions to adoption and found they did not apply. As to the parent-child beneficial relationship exception, the court found mother visited M.L. but that the visits were not always consistent and that they remained supervised. In addition, visits were not always positive or beneficial but disruptive or inappropriate at times. The court acknowledged mother's strong feelings and affection for M.L. and M.L.'s feelings for mother but did not find evidence of a substantial positive emotional attachment such that M.L. would be greatly harmed if parental rights were terminated. The court also found that M.L.'s relationship with J.H. was not so significant in nature that its severance would be detrimental to M.L. The court acknowledged that M.L. enjoyed visiting J.H. but found their relationship was "tenuous." In addition, the court noted that M.L. had been in a separate placement throughout the dependency and the quality of visits had been inconsistent and at times detrimental.
M.L.'s father agreed to a permanent plan of adoption for her. --------
At the conclusion of the hearing, the juvenile court allowed county counsel to ask the grandparents if they would consent to the court setting mediation to discuss post-adoptive contact. The grandparents declined.
DISCUSSION
I. Summary Denial of the Section 388 Petition
Mother contends the juvenile court's summary denial of her section 388 petition filed on October 24, 2016 was error because she made a prima facie showing that her circumstances had changed such that an order returning M.L. to her custody under family maintenance services would serve M.L.'s best interest. As evidence of changed circumstances, she contends her allegation that she was able to protect C.H. with J.H. in the home was sufficient to show she could also keep M.L. safe. Mother also asserts she made a prima facie showing that granting her petition would serve M.L.'s best interests because M.L. wanted to return to her custody. We disagree.
A parent may petition the juvenile court to vacate or modify a previous order on grounds of changed circumstances or new evidence. (§ 388, subd. (a)(1).) The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (d); In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
A court shall liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) Nonetheless, section 388 contemplates that a petitioner must make a prima facie showing of both elements to trigger an evidentiary hearing on the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) For instance, if a parent makes a prima facie showing of changed circumstances or new evidence sufficient to satisfy the first prong under section 388, a court may deny a section 388 petition without an evidentiary hearing if the parent does not make a prima facie showing that the relief sought would promote the child's best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 189 (Justice P.).)
A prima facie showing refers to those facts that will sustain a favorable decision if the evidence submitted in support of the petitioner's allegations is credited. Consequently, section 388 petitions with general, conclusory allegations do not suffice. Otherwise, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.)
The juvenile court's decision whether to change an order by granting a section 388 petition is "committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established." (Stephanie M., supra, 7 Cal.4th at p. 318.) Consequently, the reviewing court will not disturb a trial court's " ' "decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination" ' " (ibid.) or, put another way, the trial court has exceeded the bounds of reason (id. at pp. 318-319). We find no abuse of discretion in this case.
Mother's petition failed to make a prima facie showing with respect to either changed circumstances or M.L.'s best interests. As to changed circumstances, mother failed to show any change since the March 2016 review hearing at which the juvenile court terminated her reunification services. Even crediting mother's allegation that she was able to control J.H.'s behavior and effectively parent C.H., the evidence demonstrated at most that she was making progress in parenting J.H. It does not signify that any detriment J.H. posed to M.L. was no longer present. The juvenile court may consider the entire factual and procedural history of the case in determining whether the petition makes a prima facie showing. (Justice P., supra, 123 Cal.App.4th at p. 189.) Here, M.L.'s relationship with J.H. was strained and J.H.'s reactions were volatile. The record is replete with examples of J.H.'s extreme aggression and violence, especially if she did not get her way, and mother had not demonstrated the ability to de-escalate J.H.'s behavior in M.L.'s presence. Thus, mother's evidence with respect to C.H. did not establish M.L. would be safe if placed in mother's home with J.H.
Further, even assuming mother showed changed circumstances, she did not establish that reopening reunification services would be in M.L.'s best interests. The parent bears the burden of showing in a section 388 petition both a change of circumstances and that the proposed change is in the child's best interests. A petition only alleging changing circumstances, which would lead to a delay in the selection of a permanent home, to see if a parent could eventually reunify with a child at some future point, does not promote stability for the child or the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Once the juvenile court terminates reunification services, the parent's interest in the care, custody and companionship of the child are no longer paramount and the focus shifts to the need of the child for permanency and stability. 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. (Stephanie M., supra, 7 Cal.4th at p. 317.)
Mother did not show it would be in M.L.'s best interest for the juvenile court to return M.L. to her custody under family maintenance services. That option would have delayed permanency and stability for M.L., who had not been in mother's care for over two years. Further M.L.'s desire to return to mother, though an important consideration, is not determinative of M.L.'s best interests (In re Michael D. (1996) 51 Cal.App.4th 1074, 1087), especially in light of evidence she was happy and well cared for by her grandparents.
II. Application of the Beneficial Parent-Child Relationship and/or Sibling Relationship Exceptions to Adoption
Mother contends her parental rights were wrongly terminated because the juvenile court failed to apply the beneficial parent-child relationship exception and/or the sibling relationship exception to the statutory preference of adoption. We disagree.
Once the juvenile court has terminated reunification services, its focus shifts to the child's need for permanency and stability. (Marilyn H., supra, 5 Cal.4th at p. 309.) If, as here, the child is likely to be adopted, adoption is the norm. (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) The statutory presumption is that termination is in the child's best interests and not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Section 366.26 governs the proceedings at which the juvenile court must select a permanent placement 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).) If the court determines it is likely a child will be adopted, the statute mandates termination of parental rights unless the parent opposing termination can demonstrate that one of the statutory exceptions applies. (§ 366.26, subd. (c)(1)(A) & (B).)
The parent has the burden of proving the statutory exception applies. (In re Breanna S. (2017) 8 Cal.App.5th 636, 646.) When the juvenile court finds the parent has not met his or her burden of producing evidence establishing the existence of the exception, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. "When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion." (Id. at p. 647.)
A. Beneficial Parent-Child Relationship Exception
The beneficial parent-child relationship exception pertains where the evidence supports "a compelling reason for determining that termination would be detrimental to the child [because] [the parent maintained] regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
" 'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one that "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 Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
The nature of the relationship between the parent and child is key in determining the existence of a beneficial relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some " 'emotional bond' " with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.).) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466, original italics.) In other words, the parent must show he or she occupies a " ' "parental role" in the child's life." ' " (K.P., supra, 203 Cal.App.4th at p. 621.)
Mother contends she established the existence of a beneficial parent-child relationship with M.L. because, contrary to the juvenile court's finding, she maintained regular visitation with M.L. and had a strong bond with her. However, the record does not compel a finding that regular visitation occurred or that mother's relationship with M.L. outweighed the benefit M.L. would gain through adoption by her grandparents.
According to the record, mother cancelled four of her bimonthly visits in the six months preceding the section 366.26 hearing. Such evidence did not compel a finding, as a matter of law, that mother maintained regular visitation and contact with M.L. Further, mother offered no evidence that severing her parental rights would be detrimental to M.L. and the evidence adduced at the hearing indicates the opposite is true. M.L. had lived with her grandparents exclusively for over two years and for a significant time before she was removed from mother's custody. She enjoyed living in their home and had established a life with them, complete with a circle of friends and relatives. She had also resigned herself to being adopted by them without any apparent distress. While she may not have fully understood the meaning of adoption, she did understand she was not returning to mother's custody because mother was not working "hard enough" to make it happen.
As to mother's contention she maintained a strong bond with M.L. through visitation, the juvenile court recognized mother and M.L. shared strong feelings and affection for each other and did not disagree that a bond existed. However, the court explained that it had to find more than a parent-child bond in order to apply the exception; it had to find mother filled a parental role that if removed would be detrimental to M.L. The court found the evidence did not compel a finding in favor of mother on this issue as a matter of law and the record supports it.
B. Sibling Relationship Exception
The sibling relationship exception pertains when "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
In evaluating the applicability of the sibling relationship exception, the juvenile court "is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship .... If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952; citation omitted.) It is a "rare" case in which the court will find that this exception to adoption applies, particularly when the proceedings concern a young child whose need for a competent, caring and stable parent is paramount. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)
Here, the juvenile court found mother failed to meet her burden of establishing the sibling relationship exception because she did not present evidence showing termination of parental rights and adoption would substantially interfere with M.L.'s relationship with J.H. As the court observed in rejecting this exception to adoption, M.L. enjoyed seeing and visiting J.H. but the evidence in the entire case, including the testimony, revealed that their relationship was "tenuous." M.L. had been placed separately throughout the case and the quality of her visits with J.H. were inconsistent and at times detrimental. M.L. also expressed concerns with respect to her visits and contact with J.H. The court found the sibling relationship exception did not apply and that mother had not met her burden of showing it would be detrimental to M.L. to terminate parental rights.
Mother contends nevertheless that the grandparents' unwillingness to ensure ongoing sibling contact constitutes "substantial interference" with the sibling relationship within the meaning of section 366.26, subdivision (c)(1)(B)(v). We disagree. Although the grandparents did not agree to mediate the issue of post-termination contact, mother has failed to show that they do not intend to maintain M.L.'s relationship with her sister. Even if that were the case, the juvenile court would not have abused its discretion in concluding the benefits of continuing the sibling relationship did not outweigh the benefits of a permanent home for M.L. through adoption. (Celine R., supra, 31 Cal.4th at p. 61.) The juvenile court's determination is simply not beyond the bounds of reason. (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
SMITH, J.