Opinion
E062368
06-05-2015
In re K.H., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. H.H. et al, Defendants and Appellants.
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant C.C. (mother). Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant H.H. (father). Jean-Rene Basle, County Counsel, and Danielle Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .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. J248875) OPINION APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey, Judge. Affirmed. Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant C.C. (mother). Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant H.H. (father). Jean-Rene Basle, County Counsel, and Danielle Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
S.W. (age five), and K.H. (age four), became dependents of the Los Angeles County juvenile court when Mother (C.C.) left them with different caretakers, but did not pick them up after several days. Jurisdiction was based on parental neglect (Welf. & Inst. Code, § 300, subd. (b)), but the children were returned to mother's care and the matter was transferred to San Bernardino on a family maintenance plan. A few months later, the San Bernardino Children and Family Services (CFS) agency removed the children again, after mother instigated two separate domestic violence incidents, leading to her arrest. Upon a true finding on a supplemental petition (§ 387), mother's services were terminated, but services were granted to K.H.'s father, H.H. Father did not participate in his service plan, and eventually the parental rights of mother and father were terminated after the juvenile court denied mother's petition to modify the prior court order terminating services. (§ 388, form JV-180.) Both parents appealed.
In the supplemental proceedings, S.W. was placed in the home of her father, M.B., and eventually he was awarded full custody. This appeal involves K.H. only.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, mother argues that the juvenile court erred in denying her section 388 petition and joins father's argument that the court erred in finding there was no beneficial parent-child relationship in terminating parental rights. We affirm.
BACKGROUND
On April 10, 2012, Los Angeles County Department of Children and Family Services (LADCFS) received a referral based on caretaker absence and general neglect as to siblings S.W. (then 5) and K.H. (then 4). S.W. had been left with her father, M.B., while K.H., who had a different father (H.H.), had been dropped off with her paternal aunt, C.T., on April 2, 2012. Mother was supposed to pick up K.H. after a few days, but she had been gone several days without making proper arrangements. K.H.'s aunt needed to obtain medical attention for K.H., who was running a fever of 103 degrees, but had been unable to contact the parents. K.H.'s aunt reported that mother had a habit of dropping the child off and not returning for weeks or longer, without providing money or supplies for the child. The social worker obtained a removal order and detained both children.
A dependency petition was filed in Los Angeles County alleging mother's failure to protect, supervise, and provide medical treatment. The petition alleged that mother left K.H. in the care of the child's paternal aunt but failed to make an appropriate plan for the child's ongoing care and supervision, that she failed to resume care of the child as agreed, and mother's whereabouts were unknown (Para. b-1). The petition also alleged that on April 13, 2012, K.H. suffered from a fever of 103 degrees, but mother failed to seek timely and necessary medical care for the child (Para. b-2).
A First Amended Petition was filed on June 7, 2012, adding Paragraph b-3, alleging that K.H.'s father had an extensive criminal history, abused marijuana, and failed to protect the child. However, K.H.'s father produced a marijuana card and showed he wanted to provide a home for K.H. but was not in a position to do so without stable housing or employment. This allegation was subsequently dismissed by the court. A second amended petition was filed on December 18, 2012, alleging the S.W.'s father had been uncooperative as a new Paragraph b-3, but that allegation was subsequently dismissed as well.
On June 5, 2012, a jurisdictional report was filed in the Los Angeles County juvenile court. The report outlined mother's failure to provide DCFS with her current address, show up for an interview, or schedule a visit. She had a history with DCFS going back to 1999, including mental health hospitalizations, as well as a history of engaging in sexual activity with her own teenaged brother. In 2011, a substantiated report was made regarding sexual abuse of S.W. and K.H. by mother's cousin while the children and mother were living in a maternal relative's home. However, because mother was not aware of the incidents, there were no physical findings, and because mother moved out of the residence with the children prior to the disclosure of abuse, no neglect allegations were filed against mother. A supplemental report described mother's propensity to present "major discrepancies" in information provided, and her tendency to have strong emotional outbursts, although at times she seemed reasonable.
On August 13, 2012, the court found that H.H. was the presumed father of K.H., and maintained the child with her paternal aunt pending the disposition hearing. In a supplemental report, the social worker described improvement in mother's behavior, a positive assessment of mother's new apartment in San Bernardino County, her completion of anger management and parenting classes, new job, positive visits with the children, and the children's desire to return to mother's custody.
The court found the allegations of Paragraphs b-1 and b-2 true following the entry of mother's no contest plea. The court gave DCFS discretion to place the children with mother. The disposition hearing took place on March 19, 2013. The court noted that mother had made substantive progress, placed the children in mother's care under DCFS supervision, and transferred the case to San Bernardino County. At the transfer-in hearing in San Bernardino County, the mother's residence was confirmed, so all findings and orders made by the Los Angeles County juvenile court were ordered to remain in effect.
On July 15, 2013, San Bernardino CFS filed a subsequent petition (§ 342) with an allegation that the prior disposition had been ineffective. (§ 387.) Mother had been arrested on outstanding warrants for domestic violence on July 11, 2013, when she and her new boyfriend were involved in a new incident of domestic violence against S.W.'s father. The warrant related to domestic violence instigated by mother on June 15, 2013, when she threw her boyfriend's clothing down the stairs.
Relating to the July 11, 2013, incident, Mother had pulled father M.B.'s hair and tried to pull S.W. out of his arms during a custody exchange. Believing that M.B. had struck mother, mother's boyfriend followed father and struck him. Mother was pregnant and the boyfriend, the father of the unborn child, was living with mother, along with S.W. and K.H., but mother refused to provide CFS with his name. Mother informed the social worker that she had no intention of permitting father M.B., or the paternal grandfather (to whom S.W. was strongly bonded) to visit S.W.
Further, mother had not sought counseling for the children to address the sexual molestation perpetrated by mother's cousin, and continued to delegate care of the children to maternal relatives who had extensive CFS histories, despite the willingness of K.H.'s paternal aunt and S.W.'s paternal grandfather to assist. She left the children in the care of the maternal great-grandmother, despite the fact that the cousin who had molested the children resided there. Additionally, mother had pulled the children out of school two weeks early and interfered with S.W.'s father's visits with S.W. Upon mother's arrest, CFS detained S.W. in the care of her father (B.W.), while K.H. was placed with her paternal aunt, C.T. Upon removal, there was no indication that either was bonded to mother.
On October 21, 2013, at a contested adjudication hearing on the supplemental/subsequent petition, the court found that the children came within the provisions of section 300, subdivision (b), based on mother's recent conduct. The court also found that the previous disposition had been ineffective in alleviating the underlying reasons for the removal, pursuant to section 387. The court granted reunification services to K.H.'s father, H.H., but terminated mother's services.
In April 2014, CFS submitted a status review report recommending that S.W.'s dependency be dismissed with Family Law exit orders granting custody to father, but recommending that K.H.'s matter be set for a hearing to select and implement a permanent plan of adoption. The report noted that mother's infant son had been taken into protective custody in March 2014 due to domestic violence between mother and the father of the new baby, and mother's substance abuse. S.W. was happy living with her father and grandfather, and while she would have liked to see her mother, she was unfazed by mother's failure to show up for visits.
The petition relating to S.W. was dismissed on May 13, 2014, upon an award of custody to her father.
The report indicated that K.H.'s father's (H.H.) was verbally cooperative with the social worker, but did not participate in any services offered except gas scripts and bus passes for transportation. H.H. refused to drug test and did not want the social worker to visit or send mail to his residence address for fear of negative feedback from his landlord, and because the place where he was staying was not good. Father's sister, C.T. (K.H.'s caretaker), reported that on K.H.'s birthday, father refused to stay with K.H. while the aunt went to a bible study meeting, until she offered him money to do so.
The report related that mother missed half her scheduled visits with S.W., and visited K.H. once in March 2014, although she committed to visiting twice. K.H.'s enuresis recurred after mother's single visit, to which she brought her infant son. At the conclusion of the March 2014 visit, K.H. cried. K.H. wet herself whenever she was reminded of her mother, such as when maternal relatives called. K.H. informed the social worker that she loved her mom but knew that her aunt loved her. The paternal aunt decided to adopt so K.H. would not have to deal with her mother's failure to show up for visits. Based on this information, on May 13, 2014, the court terminated services for K.H.'s father and set the matter for a hearing to select and implement a permanent plan pursuant to section 366.26.
Prior to the section 366.26 selection and implementation hearing, CFS submitted a report, recommending termination of K.H.'s parents' parental rights. The report noted that K.H., now age six, still struggled with enuresis and the caretaker-aunt was concerned by her inclination to lie. Mother had not engaged in regular visitation with K.H., although K.H.'s father visited one or two times per month. K.H. enjoyed visits with her parents, but was strongly attached to her aunt, whom she sought out for attention and affection. The aunt, who had been a big part of K.H.'s life since K.H.'s birth, was willing to permit continued contact between K.H. and her parents.
On September 12, 2014, mother filed a Request to Change Court Order, pursuant to section 388, to modify the order terminating services as to K.H. The changed circumstances included the fact that a month earlier the Los Angeles juvenile court had granted mother overnight visits with her 11-month old son, who was a dependent of that court; she had moved into a transitional maternity home for mothers and children; had visited regularly; was in individual therapy; submitted drug tests twice weekly (all negative); was no longer on probation; had no warrants; and had completed classes in domestic violence and healthy relationships.
The petition does not indicate which child she visited regularly.
The petition alleged that a modification of the prior order would be in the child's best interests because the child was bonded to mother, and mother wanted K.H. to bond with the biological siblings (mother was pregnant with her fourth child) who lived with mother. To the petition, mother attached letters and certificates from House of Ruth, a domestic violence agency that advocated for women and children who have been victimized by abuse. The court granted a hearing on the petition.
CFS submitted a response to the petition on September 30, 2014. The social worker pointed out that mother's domestic violence services did not address her history of perpetrating the violence, a major concern. Also, mother had been in the House of Ruth for only four months, too short of a time to address domestic violence problems of longstanding, and her therapy did not address mother's history of perpetrating domestic violence.
The social worker recognized mother had made some attempts to improve her circumstances in the past five months, but concluded mother had not demonstrated she had benefitted from services, because she had not shown she could maintain a safe lifestyle for the child outside of a structured program or shelter. Also, while mother visited her son regularly, she had not visited K.H. regularly until the most recent three month period, and K.H. did not ask about mother between visits, except to have her aunt text a picture of K.H. to her mother when she got her hair braided. On November 14, 2014, the social worker reported on a recent meeting with K.H. When the social worker visited K.H., she asked the child where she would like to live if she had a magic wand; K.H. stated she wanted to live with her aunt, who is the most significant parental figure in her life.
On November 17, 2014, the court heard testimony from mother in support of the modification petition, but denied it because there were no changed circumstances and modification was not in the child's best interests. The court then proceeded with the section 366.26 hearing, at which father testified, and mother submitted based on her section 388 hearing testimony. Both parents argued against termination of parental rights based on a beneficial parent-child relationship.
The court found mother had not visited consistently, and that while K.H.'s father had visited regularly, the child had not lived with him since she was three, he had never supported or cared for the child, and there was insufficient evidence of a bond, so termination of parental rights would not be detrimental. The court terminated parental rights of mother and father. Both parents appealed.
DISCUSSION
1. The Juvenile Court Properly Exercised Its Discretion in Denying Mother's Section 388 Petition.
Mother argues it was an abuse of discretion to deny her section 388 petition. Specifically, mother asserts she adequately demonstrated changed circumstances by addressing the protective concerns in K.H.'s case including her history with domestic violence, anger and substance abuse. She further argues that because she and K.H. shared a bond, it was in K.H.'s best interest to reinstate services. We disagree.
a. General Legal Principles
A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317 (Stephanie M.).) The parent bears the burden to show both a legitimate change of circumstances and that undoing the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).)
Section 388 provides a means for the court to address a legitimate change of circumstances; the statute affords a parent a final opportunity to reinstate reunification services before the issue of custody is finally resolved. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.) But it is not enough for a parent to show just a genuine change of circumstances under the statute. (Kimberly F., supra, 56 Cal.App.4th at p. 529.) A petitioner must show by a preponderance of the evidence that the child's welfare requires the modification sought. (In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)
In evaluating whether the petitioner has met his or her burden to show changed circumstances, the trial court should consider: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318; In re S.J. (2008) 167 Cal.App.4th 953, 959.)
b. Analysis
The trial court correctly found that mother's circumstances were not changed, and that a modification of the prior order was not in the child's best interests. First, mother did not meaningfully address her history with domestic violence. She received services intended for persons who are the victims of domestic violence, rather than perpetrators. Prior to the termination of her services, mother had resisted counseling, aside from an intake interview, despite a record of volatile behavior. In the Los Angeles dependency relating to her third child, she had only participated in counseling for four or five months. Further, one reason K.H. was removed on the supplemental petition was related to the original dependency: she continued to leave her children with extended family members, including relatives with extensive CFS histories, for extended periods of time without making appropriate arrangements. This problem was never addressed in counseling or therapy, although it was the problem which led to K.H.'s initial removal.
These circumstances do not reflect a significant change; instead, they show mother had returned to the same point she was at when K.H. was initially removed from her custody. The court was correct to find that her circumstances had not changed, because she had not yet begun to address the causes that led to the dependency.
Mother urges that she showed a genuine shift in her understanding of domestic violence, was able to manage her emotions with service providers, demonstrating a genuine and lasting change in circumstances. Four or five months is not a genuine and lasting change. Moreover, not every change in circumstance can justify modification of a prior order. (In re S.R. (2009) 173 Cal.App.4th 864, 870.) The change must relate to the purpose of the order and be such that the modification of the prior order is appropriate. (Ibid.; In re Daijah T. (2000) 83 Cal.App.4th 666, 674.) It must show that the problem that initially brought the child within the dependency system has been removed or ameliorated. (In re A.A. (2012) 203 Cal.App.4th 597, 612, citing In re B.D., (2008) 159 Cal.App.4th 1218, 1230.) Mother never addressed the problem leading to K.H.'s original removal.
As to the best interests prong, we agree with the trial court's finding. Mother asserts that K.H. is bonded to her and that mother wanted K.H. to bond with her younger siblings, but this does not show how K.H.'s best interests would be served by depriving her of a permanent, stable home in exchange for an uncertain future. (In re Jackson W. (2010) 184 Cal.App.4th 247, 260, citing In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081; In re J.H. (2007) 158 Cal.App.4th 174, 182-183.) The court did not abuse its discretion. 2. The Trial Court Properly Found That Termination of Parental Rights Would Not Be Detrimental.
Father argues, joined by mother, that the juvenile court erroneously terminated parental rights where there was a beneficial parent-child relationship between the parents and K.H. Father's argument points to the fact that he was a non-offending parent under both the original and the subsequent petitions, and that he established a beneficial relationship with K.H. Mother does not advance any independent argument on this issue on appeal, but in the trial court, she argued that mother had maintained regular visits for the last four months, that the minor had been in mother's custody for a substantial portion of her life, that K.H. knew who mother was, and that she looks forward to visits with mother. We disagree with both parents.
Section 366.26, subdivision (c)(1), provides that if the court determines, based on the [adoption] assessment and any other relevant evidence, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption, unless one of several statutory exceptions applies. Once the court determines a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental under one of the exceptions listed in section 366.26, subdivision (c)(1)(B). (In re Zachary G. (1999) 77 Cal.App.4th 799, 809, citing In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) We must affirm a trial court's rejection of the exceptions if the ruling is supported by substantial evidence. (In re Zachary G., supra, at p. 809.)
One such exception applies when the court finds a compelling reason for determining that termination would be detrimental to the child because the 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).) This exception applies only when the relationship with a natural parent 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.) A parent's "frequent and loving contact" with the child was not enough to sustain a finding that the exception would apply, when the parents "had not occupied a parental role in relation to them at any time during their lives." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The determination of whether a beneficial parent-child relationship exists is reviewed for substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
To establish that the parents have occupied a "parental role," it is not necessary for a parent to show day-to-day contact and interaction. (In re S.B. (2008) 164 Cal.App.4th 289, 299; In re Casey D. (1999) 70 Cal.App.4th 38, 51.) As the court observed in In re S.B., if that were the standard, the rule would swallow the exception. (In re S.B., supra, at p. 299.) Instead, the court determines whether the parent has maintained a parental relationship, or an emotionally significant relationship, with the child, through consistent contact and visitation. (Id. at pp. 298, 300-301.)
Thus, 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, citing In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.) 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 child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs. (In re Angel B., supra, 97 Cal.App.4th at p. 467; see also, In re Bailey J., supra, 189 Cal.App.4th at p. 1315.)
Here, father did visit regularly, but did not demonstrate a significant or substantial emotional attachment. Although father was active in K.H.'s life for the first three years, was verbally cooperative with the social worker, and initially appeared to be proactive in telling the social worker that he wanted to provide a home for K.H., he continued living a transient lifestyle throughout the dependency and did not avail himself of services. He was passive throughout the dependency proceedings, did not seek placement of K.H. or attempt to change his circumstances so that could eventually care for his child. And we cannot ignore the fact that his sister had to offer him money to persuade him to stay with K.H. on her birthday. K.H. may have enjoyed her visits with her parents, but this is not a compelling showing that termination of parental rights would be detrimental.
As for mother, she did not establish the first prong of the beneficial parent-child relationship test because she did not visit regularly. It is true that K.H. enjoyed her visits with mother and on one occasion cried at the conclusion of the visit, but she did not ask about mother in between visits. Even if we assumed there was frequent and loving contact, the mere existence of a bond does not rise to the level of the exception to the statutory preference for adoption. (In re K.P. (2012) 203 Cal.App.4th 614, 621; see also, In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) Further, the record demonstrates that K.H. looked to her paternal aunt for attention and comfort, and knew she was loved by her aunt. On the other hand, contact with her mother caused recurrence of K.H.'s incidents of enuresis at age six. There was no compelling basis for the court to conclude that terminating parental rights would be detrimental.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: HOLLENHORST
J.
CODRINGTON
J.