Opinion
A166531
07-28-2023
In re A.L. et al., Persons Coming Under the Juvenile Court Law. v. M.H., Objector and Appellant. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Petitioner and Respondent,
NOT TO BE PUBLISHED
Sonoma County Super. Ct. Nos. DEP 5728 & DEP 5729
BROWN, P. J.
M.H. (mother) appeals from the juvenile court's orders summarily denying her petition for modification and terminating her parental rights to her daughters, An. and Al. (Welf. &Inst. Code, §§ 388, 366.26. Mother contends she made a prima facie showing in her section 388 petition that warranted an evidentiary hearing. She also contends that the juvenile court erred when it ruled that the parental-benefit exception to adoption did not apply (§ 366.26, subd. (c)(1)(B)(i)), and she asserts she was deprived of a fair trial and due process. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
BACKGROUND
The history of these dependency proceedings is set forth in this court's prior opinion, which we incorporate herein by reference. (In re A.L. (Dec. 29, 2021, A162200) [nonpub. opn.].)As is relevant here, in that prior appeal, we reversed an order under section 366.26 terminating parental rights and selecting adoption as the permanent plan because mother contended that the parental-benefit exception applied and the court made its ruling without the benefit of In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), which provided new guidance on how this exception should be applied.
This court granted mother's request to take judicial notice of the record in A162200.
The matter was also remanded to ensure compliance with the Indian Child Welfare Act (ICWA). On remand, further ICWA compliance proceedings occurred, and there is no challenge to the juvenile court's finding that ICWA does not apply to this case.
While the prior appeal was pending, the court held two post permanency review hearings and did not change the children's placement with a maternal relative. The Department continued to recommend adoption by the children's caregiver.
In the reports for the post permanency review hearings, the Department stated that the children were thriving. Regarding visitation, the Department relayed that mother was participating in visits supervised by the caregiver about twice a month, but, in February and March 2021, mother did not contact the caregiver. In April through June of 2021, visits were consistent. Mother then came to the caregiver's home unannounced in July 2021. The caregiver observed that Al. was "quieter" or "off" following this encounter, An. became timid for a while, and Al. told her caregiver and the social worker that mother told her she could tell the court that she wants to live with her mother instead of her aunt. Al. said she told her mother that she wanted to live with her to make her happy, but she actually wanted to remain with her relatives because she felt safe and did not have to worry. Also in July 2021, mother asked to take a break from visits after her friend overdosed. Though the children appeared to enjoy the supervised visits after they resumed, the children did not seem bothered and appeared to not miss the contact with their mother during the break in visits.
Al. and An. consistently reported that they wanted to stay with their relative caregivers and felt safe in their care. The children did not ask about their mother and were generally fine with seeing her or not seeing her. In addition, visits were moved from mother's home to a more neutral area after Al. reported feeling uncomfortable in mother's home because it was very unclean.
After remand, the Department filed an updated report on July 28, 2022 for the new section 366.26 hearing. The Department concluded the children were likely to be adopted and recommended that parental rights be terminated with a plan of adoption. The children had lived with their caregivers for over two years and were doing well. The Department directly addressed the parental-benefit exception.
The Department stated that visits were on and off during the dependency. The Department repeated the above-described visitation information set forth in its post permanency review hearing reports for the period up to July 2021, and provided new information regarding visitation occurring thereafter.
By the end of 2021, supervised visits occurred about once a month because mother had become inconsistent with visitation. After a visit in December 2021, An. had enuresis and Al. became "mouthy" and "snappy." Al. complained of fleas and "rooster poop" at mother's house, and the social worker discouraged visits at mother's house because father was known to spend time there. The caregiver reported that mother often "flaked" on visits and she had been having father stay at her home at times.
After the prior appellate opinion in this case issued in December 2021, the Department decided to set up professionally supervised visits, but the social worker could not reach mother for two months. Supervised visits of once a month resumed in April 2022. In the April 2022 visit, mother played well with the children and talked to An. about having a good attitude when Al. won a game they were playing. Al. hugged mother at the end of the visit, but An. would not hug mother. The May 2022 visit went well, and Al. and mother hugged at the end. An. walked to the door as if she was going to leave without saying goodbye, but she hugged mother when mother asked her to.
In June 2022, Al. did not believe that mother would remember her birthday, and she had attitude about mother that day. An additional supervised visit in the community that the social worker offered to mother was cancelled because mother was unreachable. Later that month, mother called Al., and, over speaker phone, the caregiver heard mother tell Al. to tell the social worker that she wanted to live with mother. An. wet her pants for many days again after an August 2022 visit.
The Department opined that the children did not have a "substantial, positive, emotional attachment to their mother." They were removed at the age of two and six, they had been out of mother's care for two years, and they had been in care with their caregiver for a total of 34 months during the dependency. Mother was an inconsistent visitor, albeit one whom the children enjoyed seeing. The children looked to their caregivers, however, to meet their basic needs. Both children showed distrust of their mother in different ways. The caregiver reported that if she initiates a call to mother for a birthday or holiday, the children whine and prefer to go about their normal day. The social worker believed there would be no benefit to continuing the mother-child relationship. The report stated mother did not currently "play a significant role" in the children's lives. The caregiver planned to continue a relationship with mother, but the Department determined that if mother "disappear[ed]" from the children's lives, they would continue to thrive because they were loved by their potential adoptive family. The Department found that "termination of parental rights would not be detrimental" to the children.
The Department also reported that a three-year domestic violence restraining order issued to protect mother from father on November 18, 2021. In April 2022, the caregiver saw father at mother's home, and on another occasion around the same time, father came to the caregiver's home. Also around the same time, father told the caregiver that he was hanging out with mother, and they had argued on a trip they took to the beach together. Father had been arrested at mother's home in January 2022, and the social worker spoke to mother about the incident. Mother said she could not control father, and she resisted the social worker's suggestion that she move. In June 2022, the caregiver stopped by mother's house, and father came out of the house.
On August 2, 2022, mother filed a section 388 petition seeking return of the children and dismissal of the case. The next day, the matter was set for a hearing to determine whether the petition established a prima facie showing, and the court also set a date for the section 366.26 hearing.
At the continued hearing on the section 388 petition, the court stated that its tentative ruling was that mother had not made a prima facie showing sufficient to warrant an evidentiary hearing. After argument from counsel, mother requested a Marsden hearing. The court addressed mother's Marsden request after clearing the courtroom. When the court went back on the public record, it stated that mother would continue working with her counsel, and it allowed mother a week to file an amended section 388 petition.
People v. Marsden (1970) 2 Cal.3d 118.
Mother filed her amended section 388 petition, and the court held a hearing. Mother's counsel was present, but mother failed to show up. The court heard argument and denied the petition, finding that mother failed to state a prima facie case of changed circumstances or that her requested modification would be in the best interests of the children.
At the subsequent section 366.26 hearing, mother and the social worker assigned to the case testified. After hearing their testimony and argument from counsel, the court found that the parental-benefit exception did not apply. The court commented that it could "argue either way if [visits were] consistent or not." It found the children did not have a substantial, positive emotional attachment to mother and termination of parental rights would not be detrimental to the children.
The court determined that the children were adoptable, and it terminated parental rights. Mother timely appealed the section 366.26 and the section 388 rulings.
DISCUSSION
I. Summary Denial of the Section 388 Petition
According to mother, the juvenile court abused its discretion by denying her petition requesting the return of her children and dismissal of the case without an evidentiary hearing. We disagree. As set forth below, the court acted within its discretion. (In re G.B. (2014) 227 Cal.App.4th 1147, 1158 [denial of section 388 petition without an evidentiary hearing reviewed for abuse of discretion].)
Under section 388, a parent may petition for a hearing to change, modify, or set aside any order previously made by the juvenile court based on changed circumstances or new evidence. (§ 388, subd. (a)(1).) "To obtain an evidentiary hearing on a section 388 petition, a parent must make a prima facie showing that circumstances have changed since the prior court order, and that the proposed change will be in the best interests of the child. [Citations.] To make a prima facie showing under section 388, the allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory. [Citation.] A section 388 petition must be liberally construed in favor of granting a hearing to consider the parent's request." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) The petition may not consist of" 'general, conclusory allegations.'" (In re Samuel A. (2020) 55 Cal.App.5th 1, 7.) In determining whether a parent has made a prima facie showing under section 388, we may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Here, in the amended section 388 petition, mother alleged her circumstances had changed as follows: Father began coming to her house in early 2022 and she called law enforcement each time; she obtained a criminal protective order against father and his attempt to fight the charge for violation of a restraining order was unsuccessful; mother had not been in a relationship since 2020; mother did not use controlled substances; she took medication for ADHD; and there was no drama in her home and it was safe and stable. She included additional allegations describing her history with father and the ex-boyfriend who had been involved in the altercation that led to the children's second removal. As discussed below, we conclude the court could reasonably find mother did not make a prima facie showing of changed circumstances. Accordingly, we need not address whether mother made a prima facie case with respect to the best interests prong.
A change in circumstances must be substantial. (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) "A parent establishes a substantial change of circumstances for purposes of section 388 by showing that, during the period between termination of reunification services and the permanency planning hearing, he or she has resolved the previously unresolved issues supporting juvenile court jurisdiction." (In re J.M. (2020) 50 Cal.App.5th 833, 846.)
Mother's allegations that she did not use controlled substances, took medication for ADHD, there was no drama in her home, and her home was safe and stable are either conclusory, show no substantial change of circumstances, and/or do not relate to the sustained allegations that served as the basis for removal of the children.
Mother's efforts to address domestic violence and her children's exposure thereto present a closer case, but we find no abuse of discretion in the court's ruling. Mother relies on her allegations that father started coming around her house in early 2022, and she called law enforcement each time. Mother alleged no further factual detail about the frequency or date of these calls. Mother also alleged that she obtained a criminal protective order against father, father was in court in about April 2022 after an arrest for violating a restraining order, and her house was safe, citing, in part, the court order preventing father from coming over and the fact that she had not been in a relationship since 2020. However, given the deferential standard of review, the juvenile court could reasonably conclude, based on the history and facts of this case, that mother's circumstances were not substantially changed or were perhaps merely changing, which is "insufficient to warrant a hearing on a section 388 modification petition." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1072; In re Stephanie M. (1994) 7 Cal.4th 295, 319 ["' "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court"' "].)
The sustained allegations of the section 300 petition established that a 2018 criminal protective order (CPO) prohibited contact between mother and father, yet incidents of domestic violence between the two persisted. Mother's case plan included domestic violence support groups that she did attend, but after the children were returned to her care, in 2020 the Department filed a section 387 petition based on mother's involvement in domestic violence with her boyfriend. In December 2020, mother had her adult son call police when father showed up at her house, and she testified she had learned no tolerance. However, the court credited evidence showing that mother had been allowing father to come to the house at least once a week despite the CPO. Mother again averred in a March 2021 section 388 petition that she was free of father and understood zero tolerance. Yet the children's caregiver told the social worker that father had been arrested for violating a restraining order protecting mother in January 2022, and father still had belongings at mother's home. Mother's allegations in the relevant section 388 petition thus described behavior similar to that which she had exhibited throughout the dependency. Finally, at the section 388 hearing, the Department's counsel reported, without any objection from mother, that the children's caregiver saw father at mother's house in April and June 2022. In sum, the juvenile court could reasonably conclude that mother's petition lacked sufficient facts to establish a substantial change in circumstances.
We reject mother's contention that the court focused on incorrect factors and on "relitigating the issues of the dependency case, rather than addressing mother's current circumstances." The juvenile court summarized the task before it on the section 388 petition clearly: "So the issue, then, is a prima facie case would have to show that the-there are actual changed circumstances and that it would be in the best interest of the children to change the order." The court provided a summary of the dependency from its review of the file in rendering its decision, but it clearly found that mother failed to establish a prima facie showing. The record thus establishes the court understood and applied the correct law.
Finally, we reject mother's contention that denial of the section 388 petition violated this court's remittitur. As the Department correctly observes, our prior disposition ordered that a new section 366.26 hearing for mother be held in compliance with Caden C. and stated the parties could introduce additional relevant updated evidence as they deemed necessary. This statement clearly addressed evidence to be introduced at the new section 366.26 hearing and had nothing to do with the section 388 petition mother filed months after our remittitur issued.
In conclusion, the juvenile court did not abuse its discretion by summarily denying mother's section 388 petition.
II. The Parental-Benefit Exception
Mother next contends that the juvenile court erred in finding that the parental-benefit exception to termination of parent rights did not apply. As we explain below, her contention lacks merit.
A. Governing Law
"" 'At a permanency plan hearing, the [juvenile] court may order one of three alternatives: adoption, guardianship or longterm foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans." [Citation.]'" (In re Katherine J. (2022) 75 Cal.App.5th 303, 316.) If the juvenile court finds that the child is adoptable, it must terminate parental rights unless a statutory exception applies. (§ 366.26, subd. (c)(1).)
The parental-benefit exception allows the juvenile court to avoid termination if the court "finds a compelling reason for determining that termination would be detrimental to the child" because "[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).) To avoid termination of parental rights under this exception, a parent "must show, by a preponderance of the evidence, three things. [First,] [t]he parent must show regular visitation and contact with the child . . . . [Second,] the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship. And [third,] the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption." (Caden C., supra, 11 Cal.5th at pp. 636637.)
Caden C. also discussed what considerations are improper in deciding whether the parental-benefit exception applies. It is improper to compare a "parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)" when weighing whether termination would be detrimental to the child. (Caden C., supra, 11 Cal.5th at p. 634.) The hearing "is decidedly not a contest of who would be the better custodial caregiver."
(Ibid.) When considering Caden C.'s third element, courts should not rely on expectations of further contact between the parent and child (id. at p. 633), and the parent's continued struggles with the issues leading to dependency cannot, standing alone, be a bar to the application of the parental-benefit exception. (Id. at pp. 637-638.)
We apply the substantial evidence standard of review to the juvenile court's factual determinations for the first two Caden C. factors, the same to factual determinations in the third Caden C. factor, and an abuse of discretion standard where the court balances factual determinations for the third factor. (Caden C., supra, 11 Cal.5th at pp. 640-641 .)
B. Analysis
We uphold the juvenile court's order because substantial evidence supports the court's conclusion that the children did not have a substantial, positive, emotional attachment to mother.(Caden C., supra, 11 Cal.5th at pp. 636, 640.)
Given our conclusion, we need not address the first or third Caden C. factor or mother's contention that the juvenile court relied on improper considerations when making its determination under the third factor.
The following evidence is sufficient to support the juvenile court's conclusion that the children enjoy visits with mother as a "friendly visitor," but lacked the requisite substantial, positive emotional attachment required for the parental-benefit exception. An. was two and Al. was six when they were first removed from mother. They were with mother for nine months during the dependency and were exposed to many incidents of domestic violence. Al. reported feeling unsafe in her mother's home when she was removed. As of July 2022, they had been out of mother's care for two years. The juvenile court found that the children exhibited behaviors indicative of stress after visiting with mother and began getting upset with visits near the end of 2021. An. wet the bed at times after visits. Al. was "off' after mother dropped in unannounced once in 2021 and told Al. to tell the court that she wanted to live with mother. An. became more timid after that unannounced visit. Al. was upset by and "snappy" after a December 2021 visit, did not believe mother would call her on her birthday in June 2022, and was attitudinal about mother that day. An. refused to hug mother or would not initiate contact after some visits. During the times when mother was absent from visiting, the children did not ask for contact with her. The social worker reported that, when asked whether they have any fears in the future, the children did not bring up worries about not seeing their mother. The Department also reported that the children look to their caregivers for support and safety.
Mother points to evidence that the children called her, "Mother," they showed affection with her, and they said they said, "I love you." She also points to visitation notes reflecting that she consistently demonstrated strong knowledge of the children's development, responded appropriately to verbal and non-verbal cues, put the children's needs ahead of her own, and showed empathy toward the children. However, we do not reweigh the evidence and must uphold the juvenile court's factual determinations if they are supported by substantial evidence, even if substantial evidence to the contrary also exists. (Caden C., supra, 11 Cal.5th at p. 640.) As set forth above, substantial evidence supports the trial court's determination.
Mother also argues that the court improperly considered her ongoing struggles and whether the children could return home, as well as an outdated July 28, 2022 section 366.26 report. The record refutes mother's first claim. The court summarized the history of the case at the beginning of its ruling, but it considered mother's issues with domestic violence and the roles that she and the foster parents played in the children's lives in the appropriate context of ascertaining how the children viewed mother and the nature of their attachment to her (Caden C., supra, 11Cal.5th at p. 638 [a parent's struggles may speak to the lack of benefit of continuing the relationship].) Mother's second claim fails as well because she failed to object below to what she now claims was a stale section 366.26 report. Mother notably remained silent at the August 2022 hearing when the court set the October 2022 section 366.26 hearing and raised the issue of an updated report, and when the Department stated that it did not believe an update was needed. Nor did mother object at the section 366.26 hearing when the court admitted the section 366.26 report into evidence.
In sum, given the record support for the juvenile court's factual determination as to the second Caden C. factor, the court did not err in finding that the parental-benefit exception was inapplicable.
III. Mother Received Due Process
Mother's final contention-that she did not receive a fair trial in violation of her right to due process-lacks merit as well. Mother claims that the juvenile court refused to allow her to introduce evidence at a hearing on her section 388 petition, miscited the factual record, refused to conduct a proper Marsden hearing, and considered improper factors at the section 366.26 hearing. We have determined the court properly denied the section 388 petition without an evidentiary hearing, and the court did not rely on improper factors in finding that the children did not have a substantial, positive emotional attachment with mother. Our review of the record shows that the juvenile court properly heard mother's reasons for requesting a Marsden hearing. Furthermore, mother was represented by counsel at the section 388 hearing, and she was represented by counsel, testified, and had a full opportunity to present evidence and argument at the section 366.26 hearing. We see no error in the court's various rulings, and certainly none that rises to the level of a due process violation.
DISPOSITION
The orders are affirmed.
WE CONCUR: STREETER, J., FINEMAN, J.
[*] Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.