Opinion
B221626 No. CK 55999
08-30-2010
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MICHELLE S. et al., Defendants and Appellants.
Mayann M. Milcetic, under appointment by the Court of Appeal, for Defendantand Appellant Michelle S.Michael A. Salazar, under appointment by the Court of Appeal, for Defendantand Appellant A.T.Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant CountyCounsel and William D. Thetford, Principal Deputy County Counsel for Plaintiff andRespondent.
Mayann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant Michelle S.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant A.T.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and William D. Thetford, Principal Deputy County Counsel for Plaintiff and Respondent.
APPEALS from orders of the Superior Court of Los Angeles County, Elizabeth Kim, Juvenile Court Referee. Affirmed.
EPSTEIN, P.J.
Father A.T. and mother Michelle S. appeal from the termination of their parental rights as to their three children. They argue the juvenile court erred in excluding evidence and limiting cross-examination at the Welfare and Institutions Code section 366.26 hearing and in denying fathers section 388 petition. Father also challenges the sufficiency of the evidence to support the juvenile courts finding that the beneficial parent-child relationship exception is inapplicable. We find no basis for reversal and affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
Mother and father have three children together, Christopher (age 6), Jennifer (age 5), and Patrick (age 4). Mother has another son, Justin, from another relationship, who is living with a family member and is not a subject of this proceeding. The family had a history of referrals to the Department of Children and Family Services (the Department). In 2004, Christopher was removed from his parents custody when father slapped Justin, and was arrested. A petition was sustained finding that father had physically abused Justin, that parents left Justin and Christopher alone without adult supervision, and that parents engaged in physical altercations in the presence of the children. The children were returned to mother in 2005 and father was ordered to have no contact with them. After other referrals in 2005, a section 300 petition was sustained as to Jennifer and a section 342 petition was sustained as to Christopher and Justin on allegations of fathers physical abuse of Justin, and domestic violence between mother and father in the presence of the children. The children were placed in foster care and the family received family maintenance services until the case was closed in April 2007.
In May 2008, the Department filed a new section 300 petition in this matter after receiving a new referral that mother was in a domestic violence shelter, that the children had witnessed mutual violence by father and mother, and that the children had been subjected to physical abuse. The petition alleged that father physically abused
Christopher and Jennifer, that parents engaged in violent physical altercations in the presence of the children, and that father abused alcohol. The children were placed in the foster home of Flora P. The parents submitted to the petition being sustained based upon the social workers reports and agreed to a disposition case plan. The petition was sustained and family reunification services and monitored visitation were ordered.
At the six-month review hearing, further services were ordered. In June 2009, the court denied a section 388 petition by father and held a contested 12-month review hearing. (§ 366.21, subd. (f).) Family reunification services were terminated and a permanency planning hearing was set. (§ 366.26.)
At fathers request, a bonding study was conducted in November 2009. Father filed points and authorities in support of his position that a parental relationship existed which benefited the children. Counsel for the children argued that the children would not benefit from a continuing relationship with father and that their best interests would be promoted by termination of parental rights and adoption by their foster mother, Flora P.
Father filed a section 388 petition in December 2009, requesting that the section 366.26 hearing be taken off calendar and that the children be returned to his custody. Alternatively, he asked that the hearing proceed and that the children be placed with a paternal cousin or that the court select a permanent plan of legal guardianship.
The court held a combined hearing on fathers section 388 petition and for selection and implementation of a permanent plan under section 366.26. Following testimony and argument, the petition was denied. The social worker and Beatrice B., the foster mother in earlier proceedings, testified at the section 366.26 hearing. The court denied requests to call relatives who wanted the children placed with them, and to call the current foster mother, Flora P.
Relying on the bonding study, counsel for father argued the exception for parental relationship in section 366.26, subdivision (c)(1)(B)(i) applied. The court found by clear and convincing evidence that the children were adoptable and that there was no evidence to support applicability of the exception. Parental rights were terminated. Mother and father appeal from this order, and each joins in the arguments raised by the other.
DISCUSSION
I
Father appeals from denial of his section 388 petition in December 2009. Under section 388, a parent may petition the court to modify an order based upon grounds of changed circumstances. The proposed modification must be in the best interests of the child. The moving party has the burden of showing by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review a ruling on a section 388 petition for abuse of discretion. (Id. at p. 318.)
Here, father brought his petition seven months after reunification services were terminated by the juvenile court. The Supreme Court has held that "[a]fter the termination of reunification services, the parents interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point, the focus shifts to the needs of the child for permanency and stability [citation] and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.]" (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Father sought to modify the order placing the children with Flora P. by ordering them placed with him, or with his cousin (Cousin). If the children were placed with Cousin, father asked either to continue the section 366.26 hearing or to appoint Cousin as legal guardian for the children. He contends the juvenile court erred in denying his request to introduce evidence of the need to remove the children from Flora P.s home. Father cited the social workers log for September 2, 2009, which stated that placement with the caretaker had been appropriate "for the most part." When contacted by the social worker, the caretaker expressed concern because of sexual acting out by Jennifer and Christopher. Following an investigation, the Department concluded the allegations in the referrals were unfounded.
The Department argues that the section 388 petition was properly denied because father failed to offer evidence of changed circumstance, new evidence, or that the best interests of the children would be served by the modification.
Father presented new evidence in support of his petition, concerning the recent investigation of the referrals about the care the children were receiving in Flora P.s home and the sexual acting out of Christopher and Jennifer. The referrals alleged Flora P. had a gun and smoked marijuana around the children daily, and that her adult son listened to loud music and yelled at the children. Father argued that modification of the placement order was in the best interests of the children because they have a loving relationship with him, and Flora P. did not intend to allow continued contact if allowed to adopt the children. He contended that the children know Cousin, whom he proposed as an alternative for permanent placement in the form of legal guardianship.
At the hearing, counsel for father attempted to examine the social worker about the referrals regarding Flora P. The Department concedes that the trial court erred in sustaining relevance objections to this line of questioning. The error, it contends, was harmless beyond any reasonable doubt, did not result in a miscarriage of justice, and therefore does not require reversal. It reasons that the social workers testimony regarding investigation of Flora P. would not have been relevant to the suitability of either father or Cousin as alternative caretakers for the children.
The Department also cites evidence before the juvenile court at the section 388 hearing that the allegations against Flora P. and her son had been investigated and determined to be unfounded. Floras house was searched and no gun was found. Her drug test was negative. An emergency social worker found no evidence that Floras adult son was living in the house. Another social worker spoke with a neighbor who confirmed that the son did not live with Flora. No evidence that the son resided in the home was found in the search. The son provided a social worker with a current bank statement with his own different address.
We agree with the parties that the juvenile court erred in precluding father from examining the social worker about the referrals concerning Flora P. The wrongful exclusion of evidence in a dependency proceeding has been assessed under the harmless beyond a reasonable doubt standard. (In re Mark A. (2007) 156 Cal.App.4th 1124, 1144-1145.) In In re Brenda M. (2008) 160 Cal.App.4th 772, the court concluded that error in preventing cross-examination of the preparer of social workers reports was prejudicial because it was not known how the preparer would have testified on cross-examination, or whether the cross-examination would have impaired her credibility. (Id. at p. 774.)
In this case, the court proceeded directly to the hearing on permanency planning after the section 388 petition was denied. During that phase of the hearing, counsel for father was allowed to thoroughly examine the social worker about the investigation of Flora P.s home and the concern that the children were acting out sexually. On this record, we find the courts error in limiting fathers examination at the section 388 hearing harmless beyond a reasonable doubt. The testimony of the social worker demonstrated that the allegations about Flora P. were investigated and determined to be unfounded. Therefore, her testimony would not have warranted a change in placement in response to fathers section 388 petition. (In re Mark A., supra, 156 Cal.App.4th at pp. 1144-1145.)
In a related claim, mother argues the juvenile court violated the parents due process rights by preventing them from presenting relevant evidence at the combined section 388 and section 366.26 hearing. This argument is based in part on the ruling limiting fathers examination of the social worker in the section 388 portion of the hearing, which we have discussed. Mother did not join in this motion and did not appeal from its denial. Her appeal is only from the termination of parental rights.
"Generally, an aggrieved party may appeal a judgment in a juvenile dependency matter. [Citation.] To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the courts decision. [Citations.] We liberally construe the issue of standing and resolve doubts in favor of the right to appeal. [Citation.]" (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053.)
A parent cannot raise issues on appeal from a dependency matter that do not affect his or her own personal rights. (In re D.S. (2007) 156 Cal.App.4th 671, 674.) In D.S., a father appealed from an order of the juvenile court denying the mothers petition for modification seeking reinstatement of reunification services and visitation. The father did not join in the petition, which was denied as untimely. On appeal, father claimed the order denying the modification petition violated the due process rights of both parents. The court reasoned: "To have standing in this case, appellant must show how the denial of a modification petition filed by the mother, which did not relate to appellant, and in which appellant did not join, affected his interests. (In re Frank L. [(2000)] 81 Cal.App.4th [700,] 703.) Here, he has made no showing that his personal rights were implicated. (Ibid.) Accordingly, appellant lacks standing to tender the claim." (156 Cal.App.4th at p. 674.)
Here, mother did not join in fathers section 388 petition. She did not purport to appeal from its denial. She has made no showing of how her personal rights were affected by denial of the petition. We conclude that she lacks standing under In re D.S., supra, 156 Cal.App.4th at page 674.
Mother also argues the trial court erred in refusing to hear testimony from Cousin in the section 366.26 portion of the hearing. Counsel for father made an offer of proof that Cousin and her husband would "provide permanency and they have already been approved." The court did not allow the witnesses to testify, ruling: "With respect to this witness, 352, and I will not allow this witness to testify as to any permanent plan that they wish to provide to these children as that would not be an exception to the.26 portion of the case." Mother now contends that this testimony should have been heard as part of fathers showing on his section 388 petition. We have concluded that mother lacks standing to appeal the denial of the section 388 petition brought by father. The same conclusion applies to the argument that Cousin should have been allowed to testify in the section 366.26 portion of the hearing as relevant to fathers modification petition. In any event, father did not seek to question Cousin during the section 388 portion of the hearing.
II
Both parents raise issues regarding the courts evidentiary rulings during the section 366.26 portion of the combined hearing. They claim the rulings violated their rights to due process.
A. General Adoptability
We first address mothers argument that the examination of the social worker by fathers attorney was improperly limited. Counsel for father had examined the worker about recurring sexual acting out by Jennifer, which led the worker to request two forensic examinations of the children. The worker was then asked whether Jennifers therapy had been terminated due to her progress. The worker answered that it had. Counsel for father then asked how Jennifer could have made progress in therapy in light of evidence of recurring sexual acting out. The worker said the report was about activity on the day when the referral was made. The worker was then asked about a report of a particular sexual behavior in which Jennifer allegedly engaged. County counsel objected on the grounds of relevance. The court asked: "This is my question, as far as the adoption assessment is concerned, are you proceeding with this line of questioning because they are specifically adoptable or is it as to their general adoptability?" Counsel for father explained that the questions were relevant to the general adoptability of the children. The court then sustained the objection.
Father was able to establish that Flora P. was aware of, and reported, sexual behavior by Jennifer. Despite this concern, Flora P. remained committed to adopting Jennifer and her brothers. From this, an inference of the general adoptability of the children may be drawn. (In re R.C. (2008) 169 Cal.App.4th 486, 492.) Under these circumstances, we find no error by the juvenile court in limiting this line of questioning.
B. Examination of Flora P.
1. Mothers Bond with Children
At the section 366.26 hearing, counsel for mother attempted to call the prospective adoptive mother and caretaker, Flora P., as a witness. The court asked for an offer of proof. Counsel responded: "Based on my conversations with my client. My clients informed me the former caretaker said they would be interested in legal guardianship but were told by the social worker that they would have to adopt." He then clarified that he was referring to Flora P. The court asked whether he would, as an officer of the court, take the position "that this witness would testify she is not interested in adopting the children?" Counsel for mother said: "That is just based on conversations Ive had with my client." The trial court denied the request to call the witness without further explanation. Closing arguments followed.
On appeal, mother now adds that Flora P. could have testified to the motherchildren bond under section 366.26, subdivision (c)(1)(B)(i). At the hearing, counsel for mother did not argue that Flora P. was being called to testify about the bond between mother and the children. "The parent has the burden of establishing an exception to termination of parental rights. [Citations.]" (In re Daisy D. (2006) 144 Cal.App.4th 287, 291.) Based on this record, mother failed to preserve the possible relevance of Floras testimony to the section 366.26, subdivision (c)(1)(B)(i) exception to termination of parental rights where there is a beneficial relationship between the children and parent. (Id. at p. 292.)
2. Section 366.26, subdivision (c)(1)(B)(iv)
Mother also argues that she wanted to cross-examine Flora P. to prove the section 366.26, subdivision (c)(1)(B)(iv) exception. That statute provides an exception to termination of parental rights where "[t]he child is living with a foster parent... who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her foster parent... would be detrimental to the emotional well-being of the child. This clause does not apply to any child who is either (I) under six years of age or (II) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together." (Italics added.)
Respondent points out that the oldest of the three children, Christopher, was only five years old at the time of the hearing. Under the language of the exception which we have italicized, this exception was not applicable in this proceeding because all three children were under the age of six.
The juvenile court did not err in prohibiting the examination of Flora P. on this record.
III
Father argues there was insufficient evidence to support the juvenile courts finding that the beneficial parent-child exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i) did not apply.
Section 366.26, subdivision (c)(1) provides that the court shall terminate parental rights if it "determines... by a clear and convincing evidence standard, that it is likely the child will be adopted." Father invokes the exception to termination of parental rights where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) As we have observed, the burden is on the parent to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to termination of parental rights. (In re I. W. (2009) 180 Cal.App.4th 1517, 1527.) "To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child. [Citation.]" (Ibid.)
Father frames his argument as insufficiency of the evidence to support the juvenile courts finding that the exception does not apply: "[T]here is no evidence to support the juvenile courts finding [that father] did not have some type of parental relationship with his children." He contends that even under the deferential substantial evidence standard of review which he urges us to adopt, the court erred in finding the exception inapplicable.
The court in In reI.W., supra, 180 Cal.App.4th 1517, was presented with a similar argument in which a mother argued the finding that this exception did not apply was not supported by substantial evidence because there was evidence supporting her position. The court observed: "In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of facts unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellants evidence was (1) uncontradicted and unimpeached and (2) of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding. [Citation.]" (Id. at p. 1528.)
Here the juvenile court found that father had visited with the children throughout the case and that there was some benefit to the children from the visits. But the court concluded that father had not played a parental rule. It said: "Father is still enjoying monitored contact with the children... for a very limited amount of time—and so it is this courts position that although those... visits have been occurring on a regular basis, because of the fact that they continue to be monitored and short in duration that these are not a parental role which would rise to the level of an exception."
Father cites the bonding study performed by Dr. John Chavez in November 2009. Christopher told Dr. Chavez that Flora P. was his "real momma" and that he would like to live with her. At the same time, he said he would like to live with his father. Dr. Chavez concluded that Christopher "was found not to have a strong expressed preference regarding whom he would like to live with."
Four-year-old Jennifer provided limited information, but Dr. Chavez ascertained that "she is happy with her momma and wants to live with her." He found it difficult to determine her emotional ties to father, "except that he brings her things and she likes seeing him." When asked, she expressed a preference to be with her mother. Patrick, at age two, was too young to be interviewed.
Dr. Chavez also observed the children interact with father. They were happy to see him and responded with hugs and smiles, immediately seeking his care and attention. He concluded: "It was clear from the onset that the children have a strong familiarity with their father and are aware of him as their father." Dr. Chavez concluded that the children are familiar with father as someone who cares for them, that father is able to use positive communication and maintain control with them, he is able to reward them and acknowledge their good behavior, and the children respond to father with affection and compliance. At the end of the observation, Jennifer and Patrick began asking for Flora P.
Based on these observations, Dr. Chavez concluded "there does appear to be an emotional and psychological bond between the father and the children" which was "more than just a need for immediate gratification." He also found that the children perceived father as an authority figure and teacher. Dr. Chavez stated that the bond between father and the children could grow stronger with greater contact, but "Father would not likely be able to care for these three children without direct family support and involvement." He suggested incremental increases in visitation would be necessary before father could care for the children himself. But he found evidence of a parent-child bond "worth preserving." Father also cites title XX notations by the social worker about his positive interaction with the children during visits in 2008 and 2009.
Father argues this case is very similar to In re S.B. (2008) 164 Cal.App.4th 289, in which the Court of Appeal reversed an order terminating the fathers parental rights over his daughter under the parent-child beneficial relationship exception. In that case, it was agreed that the father had been his daughters primary caretaker for three years, and that the child loved her father and wanted their relationship to continue. The S.B. court concluded that the father continued a significant parent-child relationship despite the lack of day-to-day contact after the child was removed from his care. (Id. at p. 299.)
A year later, the same court observed that S.B. "does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is some measure of benefit in continued contact between parent and child." {In re Jason J. (2009) 175 Cal.App.4th 922, 937.) It said: "The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the childs particular needs. [Citation.] [F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.]" (Id. at pp. 937-938.) The Jason J. court affirmed an order terminating parental rights, concluding: "A friendly relationship, however, is simply not enough to outweigh the sense of security and belonging an adoptive home would provide. [Citation.]" (Id. at p. 938.) It reasoned there was no evidence that the child had needs only the father could satisfy or that he had the type of emotional attachment to his father that would cause him to be greatly harmed if parental rights were terminated. (Ibid.)
Respondent notes that father never graduated beyond monitored visitation and that his visits were limited to once a week for two hours. Patrick was one year old when removed from his parents custody, Christopher was four and Jennifer was three. They had been with Flora P. for nearly two years. Before this dependency matter, Christopher had spent two years in foster care, and Jennifer six months. The children were bonded to Flora P.
On this record, we conclude the record does not compel reversal. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) Fathers contact with the children had been limited to visitation for most of their lives. While the evidence establishes a loving bond between him and the children, it does not establish he occupies a parental role in their lives.
DISPOSITION
The orders of the court denying fathers section 388 petition and terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P.J.
We concur:
WILLHITE, J.
SUZUKAWA, J.