Opinion
B300039
06-22-2020
In re JOSHUA H. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ANGELINA G., Defendant and Appellant.
Linda B. Puertas, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine Miles, Assistant County Counsel, David Michael Miller, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK10057) APPEAL from an order of the Superior Court of Los Angeles County, Jessica A. Uzcategui and Michael C. Kelley, Judges. Affirmed. Linda B. Puertas, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine Miles, Assistant County Counsel, David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
In this consolidated appeal, Angelina G. (mother) challenges the juvenile court's orders denying her petition under Welfare and Institutions Code section 388 and terminating her parental rights over her children Joshua (born October 2009), Jacob (born March 2013), and Savannah (born February 2016) pursuant to section 366.26. Mother contends that the juvenile court violated her rights to due process and cross-examination when denying her request to call Joshua and Jacob to testify at the section 388 hearing. She also contends the court erred when it found the beneficial parental relationship exception to termination of parental rights did not apply. (§ 366.26, subd. (c)(1)(B).) We affirm the orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Dependency Proceedings (2014 - 2015)
Joshua and Jacob first came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in September 2014 after Juan H. (father) violently assaulted mother in front of Joshua. In light of the assault, mother received a three-year criminal protective order restricting father's contact with mother. After sustaining a section 300 petition against both parents, the court terminated jurisdiction in December 2015 and awarded mother sole custody of Joshua and Jacob. Detention, Jurisdiction, and Disposition (April - May 2016)
On April 15, 2016, DCFS received a referral for Joshua, Jacob, and Savannah (then two months old) after father violently assaulted mother inside the family home, which was owned by maternal great grandmother, Mary. Mother and DCFS agreed that in exchange for keeping the children in Mary's home where the children had resided most of their lives, mother would move out and the children would be placed in the care of Mary and maternal great aunt, Marcia.
In May 2016, the court sustained an amended section 300 petition based on the parents' violent altercations and mother's failure to protect the children. In November 2016, the court asserted jurisdiction over the children and ordered monitored visitation and reunification services for mother, including a domestic violence support group, a parenting education program, and individual counseling. The court also ordered mother to abide by the criminal protective order against father. The matter was set for a six-month review hearing in May 2017.
As amended, count b-1 alleged that mother and father engaged in two physical altercations in September 2014 and April 2016 while the children were in the home, and mother's failure to protect the children placed them at risk of physical harm. In the interest of justice, the court dismissed count a-1, another count premised on the parents' history of domestic violence.
Reunification Period (May 2017 - August 2019)
Throughout the reunification period, DCFS reported that mother admitted to using drugs, engaged in violent altercations with father, and exposed the children to father. Meanwhile, the children were thriving in Mary and Marcia's care.
After finding mother was in compliance with the case plan at the six-month review hearing on May 10, 2017, the court continued mother's reunification services and set the matter for a 12-month review hearing in November 2017.
In mid-July 2017, Mary and Marcia reported that mother had disappeared for several days without calling the children and admitted to drug use when she returned. In October 2017, maternal grandmother, Reina, kicked mother out of her home because mother was abusing methamphetamine and heroin.
At the 12-month review hearing on November 13, 2017, the juvenile court found mother to be in partial compliance with the case plan. The court continued mother's reunification services and set an 18-month review hearing for May 14, 2018.
On May 10, 2018, the police responded to a vandalism and domestic violence incident between mother and father. Mother told the police that father brandished a knife, threatened to kill her, slashed the tires to her car, and smashed the car's windshield later in the day after mother refused to talk with him.
On the day of the 18-month review hearing on May 14, 2018, DCFS filed reports wherein maternal grandfather, Mark, provided text messages from mother admitting to recent heroin use. Mark also reported that he had caught mother speaking with father down the street from his home. The court continued the 18-month review hearing to August 7, 2018.
Mark subsequently reported that he had spotted mother and father together in late May 2018.
During an interview in mid-May 2018, mother denied drug use and disclaimed the text messages, stating that she sent what "her father wanted to hear." Though she agreed to drug test that day, she did not show up for the test.
When asked why she did not appear for the test, mother stated that her name "wasn't on the list."
In late-May 2018, Jacob told Marcia that he went to see a movie with mother and father. Jacob refused to answer Marcia's follow-up questions, "because his mom told him not to tell anyone who was with them watching the movie." When interviewed by a social worker, Jacob appeared "uncomfortable" and remained quiet when he was asked who attended the movie with him. When Joshua was interviewed, he responded, "I can't lie I watched the movie with my dad."
Mary reported in July 2018 that mother "would laugh about" not getting caught with father and avoided drug testing by ignoring phone calls from social workers. Mother did not respond to voicemails for arranging on demand drug tests on June 28, July 5, and July 17, 2018. Mother also informed a social worker she had not updated the protective order against father.
At the 18-month review hearing on August 7, 2018, mother submitted to DCFS's recommendation to terminate reunification services and continue with monitored visitation. The court terminated reunification services and set the matter for a permanency planning hearing.
Permanency Planning
DCFS recommended that the children be adopted by Marcia because she had cared for the children throughout the dependency case and had forged a parent-child relationship with the children. In a January 18, 2019 status review report, DCFS reported that mother's visits with the children on Fridays and Saturdays were going well and were consistent. Between August 2018 and February 2019, mother tested negative for drugs but missed three scheduled, on demand tests in November 2018 and January 25, 2019.
Mother made up for the tests one-to-four days after each missed test; all three make-up tests were negative.
Mother's Section 388 Petition and Hearing
Mother filed the operative section 388 petition on June 19, 2019, requesting reinstatement of reunification services because she had completed a parenting course and domestic violence group; tested negative for drugs between January and June 2019; obtained a renewed three-year criminal protective order against father; attended individual therapy and parenting classes; and obtained gainful employment. The court set the matter for a hearing and ordered the parties to file responses to the petition.
Section 388 provides that a party may petition "the court prior to an order terminating parental rights, to modify the order that reunification services were not needed . . . or to modify any orders related to custody or visitation of the subject child" pursuant to a hearing where the party must show by clear and convincing a change of circumstances or new evidence, and that the proposed modification is in the children's best interests. (§ 388, subd. (a)(1).)
This was mother's second section 388 petition. Her first petition, filed on February 6, 2019, was premised on nearly identical evidence. The court denied mother's first petition without a hearing.
In its response, DCFS reported that mother had again taken the children to the movies with father on May 31, 2019. When the children returned home, Savannah told Marcia that she "was with daddy." When an investigator interviewed Joshua about the incident, the child began to cry and stated that mother had warned him that an investigator was going to talk with him about the incident. With tears in his eyes, Joshua denied going to the movies with father. When asked why he had previously reported that father attended the movie with the family, Joshua stated, "Marcia . . . didn't tell me to lie. Yes, Marcia told me to lie to [the social worker]." The investigator noted that Joshua appeared to be coached by mother. During his interview, Jacob stated that "[m]ommy said not to tell daddy was there. Mommy picked us up from this house and then we picked up daddy." Savannah told the investigator that "daddy, mommy, and brothers were there. We all watched the movie." Mother denied having any contact with father in May 2019.
On July 8, 2019, mother informed the court that she intended to call Joshua and Jacob to testify so that she could question them about their statements regarding the May 2019 incident. Counsel for the children filed a motion to exclude the children from testifying, asserting Joshua and Jacob would suffer emotional trauma pursuant to Evidence Code section 240, subdivision (a)(3), and In re Jennifer J. (1992) 8 Cal.App.4th 1080 (Jennifer J.). Mother filed an opposition, and the children filed a response.
At the hearing on mother's petition on August 9, 2019, the court first heard argument on the children's motion to exclude Joshua and Jacob from testifying. Despite mother's argument that she could alleviate any stress to the children by questioning them in chambers, the court granted the children's motion. The court found that both children would be emotionally harmed if forced to testify, and their testimony would be cumulative, minimally probative, and would require an undue consumption of time.
Proceeding to mother's section 388 petition, mother called Reina, Marcia, father, and herself to testify. Reina testified that she had seen mother under the influence of drugs with father in a McDonald's parking lot four days prior to the hearing on August 5, 2019. Marcia testified that mother's visits were shorter in duration, that mother promised to visit but never did, and that mother "lashe[d] back at" Joshua and Jacob when they did not listen to her. Father testified that he did not see a movie with mother or the children on May 31, 2019, and he denied being with mother on August 5, 2019. In her own testimony, mother denied using drugs and asserted she had last spoken with father two and half years prior.
The court denied mother's section 388 petition, finding that she had failed to establish changed circumstances or that granting her request would be in the children's best interests. The court found that the children's reported statements were "compelling and convincing," Reina's testimony was credible, and mother and father's testimony was not credible. The court set the matter for a section 366.26 hearing. Section 366.26 Hearing
Mother was the only person who testified at the permanency planning hearing on October 10, 2019. Mother conceded she stopped visiting the children on Sundays, did not attend a recent medical appointment for Joshua and Jacob, and could not assist them with homework because her work required her to work into the evening.
DCFS reported in September 2019 that despite continuing visitation with the children, mother did not visit the entire time allotted and excluded Savannah from family activities.
Despite these concessions, mother argued that the beneficial parental exception applied. Counsel for DCFS argued there was no evidence that termination of parental rights would be detrimental to the children. Marcia was strongly bonded with the children, whereas mother did not support the children or assist them with critical activities such as homework.
After taking the matter under submission to review the evidence, the court found that mother failed to establish the beneficial parental exception to adoption. Mother's visits established only a friendly relationship with the children, and though she worked, mother did not attempt to adjust her schedule to participate in critical activities. When mother took the children out of the home, she violated court orders by visiting with father and "influenc[ing] the children to be untruthful about it." The court found by clear and convincing evidence that the children were adoptable, and it would be detrimental to return them to mother's care. The court terminated mother's parental rights. Mother filed timely notices of appeal from the court's orders denying her section 388 petition and terminating her parental rights.
DISCUSSION
1. The Court Did Not Err in Denying Mother's Request to Cross-Examine the Children
Mother contends the trial court violated her rights to due process and cross-examination by excluding Joshua and Jacob from testifying at the hearing on mother's section 388 petition. We disagree.
Though parents in a juvenile dependency proceeding have due process rights to a meaningful hearing, they "'"are not entitled to full confrontation and cross-examination." [Citation.] Due process requires a balance. [Citation.] The state's strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence [citation], such as when the presentation of the evidence will "necessitate undue consumption of time."'" (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122, italics omitted.) Trial courts may exclude impeachment evidence that is "collateral, cumulative, confusing, or misleading." (People v. Franklin (1994) 25 Cal.App.4th 328, 337 (Franklin); Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1147 (Maricela C.).)
To avoid psychological harm to a child, a juvenile court may exclude in-court or in-chambers testimony of the child even though the testimony is relevant, and the child is competent and available to testify under Evidence Code section 240. (Jennifer J., supra, 8 Cal.App.4th at p. 1088.) When considering whether to exclude a child's testimony, a trial court must engage in "a careful weighing of the interests involved," and may properly exclude the testimony "where the issues to be resolved would not be materially affected by the child's testimony, and where it is shown that the child would be psychologically damaged by being required to testify." (Id. at p. 1089.)
We review the exclusion of a child's testimony to avoid psychological harm for an abuse of discretion. (See Jennifer J., supra, 8 Cal.App.4th at p. 1088.) To the extent mother challenges the factual findings underlying the juvenile court's ruling, our review is for substantial evidence. (In re Daniela G. (2018) 23 Cal.App.5th 1083, 1090.)
The record supports the juvenile court's finding that Joshua and Jacob would be psychologically harmed if they were forced to testify. Throughout the dependency period, both children admitted they had been coached by mother to lie about visiting with father, and both were visibly upset whenever they were asked about visiting with father. (See Jennifer J., supra, 8 Cal.App.4th at p. 1089 ["[i]t would be a perversion of the procedure to impose upon it a requirement that the child's testimony always be presented, regardless of the trauma resulting to the child therefrom"].)
The record also supports the juvenile court's finding that Joshua and Jacob's testimony would not have materially affected the questions to be resolved at the section 388 hearing—whether mother had established changed circumstances and whether reunification services were in the children's best interest. The evidence that mother does not dispute overwhelmingly answers both questions in the negative. Based on Reina's credible testimony, mother was under the influence of drugs with father four days before the hearing on her section 388 petition. Savannah's reported statements regarding the May 2019 incident confirmed that mother had continued to expose herself and the children to father in violation of the renewed criminal protective order. Mother's questioning of Joshua and Jacob about their own conflicting statements on the same incident would have been collateral and cumulative. (Franklin, supra, 25 Cal.App.4th at p. 337; Maricela C., supra, 66 Cal.App.4th at p. 1147.)
2. Mother Failed to Establish the Beneficial Parental Exception to Adoption
Mother contends the juvenile court erred in failing to apply the beneficial parental relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) The record does not support application of the exception.
Once the juvenile court terminates reunification services and determines the children are adoptable, it "must order adoption and its necessary consequence, termination of parental rights, unless one of the specified" exceptions stated in section 366.26, subdivision (c)(1) "provides a compelling reason for finding that termination of parental rights would be detrimental to the child." (In re Celine R. (2003) 31 Cal.4th 45, 53; In re Breanna S. (2017) 8 Cal.App.5th 636, 645 (Breanna S.).)
The exception at issue here—the beneficial parental relationship exception—applies if the "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 336.26, subd. (c)(1)(B)(i).) The parent bears the burden of establishing the existence of the exception, which applies only in "extraordinary" cases. (In re Zeth S. (2003) 31 Cal.4th 396, 412, fn. 9.)
The court considers two prongs when determining whether a parent has met her burden to establish the beneficial relationship exception. The first prong examines the consistency of the parent's visitation with the child. (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) The second prong involves a more nuanced analysis and requires a parent to prove that the bond she shares with her child "is sufficiently strong that the child would suffer detriment from its termination." (Id. at p. 613; accord In re Marcelo B. (2012) 209 Cal.App.4th 635, 643 [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"'").) To meet her burden, mother must do more than show frequent, loving contact, an emotional bond with the children, or pleasant visits; she must show that she occupies a parental role in her children's lives. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
We review a court's refusal to find a statutory exception to adoption under the substantial evidence or abuse of discretion standards of review, depending on the nature of the challenge. Courts generally "apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child. [Citations.]" (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) "[B]oth standards call for a high degree of appellate court deference." (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.)
Courts have applied different standards of review when determining whether an exception to adoption applies. Some apply the substantial evidence standard, others use the abuse of discretion standard or a combination of both, and others have required evidence compelling a finding in favor of the parent as a matter of law. (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 [substantial evidence]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [abuse of discretion]; In re Collin E. (2018) 25 Cal.App.5th 647, 663 [combination]; Breanna S., supra, 8 Cal.App.5th at p. 647 [matter of law].) The Supreme Court has granted review to determine the appropriate standard of review in this context. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) On this record, we would affirm under any standard. --------
We assume, for purposes of discussion, that mother maintained sufficiently consistent visitation with the children to establish the first prong of the analysis. With regard to the second prong, mother has failed to show she maintained a parental role, or that her beneficial relationship with the children outweighed the benefit of permanency with Marcia. Notwithstanding her exposing the children to father and coaching them into lying to social workers, mother did not consistently participate in the children's medical appointments and homework. In contrast, the children have continued to live in the same home where they have resided most of their lives, and they have gained stability and positivity in the care of Marcia. In sum, the court did not err in finding that mother failed to establish the beneficial parental exception to adoption. (Compare In re E.T. (2018) 31 Cal.App.5th 68, 76-77 [mother provided children with comfort, eased their fear and anxiety, and recognized that her behavior was traumatic for the children]; In re Noah G. (2016) 247 Cal.App.4th 1292, 1301-1302 [mother did not rectify her drug use, missed drug tests, tested positive during case, failed to take the child to tutoring and speech therapy, and failed to comply with court orders].)
//
//
//
//
//
DISPOSITION
The orders denying mother's section 388 petition and terminating jurisdiction are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.