Opinion
A160586
04-16-2021
In re L.C., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. S.G., et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 5669DEP)
In this dependency action, B.C. (Father) and S.G. (Mother) appeal following the juvenile court's order terminating their parental rights over their daughter, L.C. (Minor). We affirm.
BACKGROUND
In October 2018, the Sonoma County Human Services Department (Department) filed a Welfare and Institutions Code section 300 petition on behalf of Minor, then six years old. According to the Department's initial report, police had been called to the home 16 times since March 2017, including for at least six instances of verbal or physical altercations between Mother and Father during which Minor had been present. Father admitted active methamphetamine use. The Department had been providing voluntary family maintenance services but both parents had made only minimal progress. In October 2018, Father violated a restraining order protecting Mother by going to Mother's house to pick up Minor. Father retrieved a firearm from the house. Mother did not report the restraining order violation and allowed Father to take the gun and Minor unsupervised, although the parties previously agreed Father's visits with Minor would be supervised because of Father's drug use. Following the incident, Minor told a Department social worker that she did not trust Father, worried about what Father would do to Mother, and worried about her parents. Minor was detained and placed with her maternal grandparents.
All undesignated section references are to the Welfare and Institutions Code.
In a December 2018 addendum report filed in advance of the jurisdiction/disposition hearing, the Department reported a December incident in which Father went to Mother's house in violation of the restraining order, and both parents admitted to the police that they had used methamphetamine together. Both parents tested positive for amphetamines, but Father told the Department he had not used drugs. Father was arrested following the incident. At the December jurisdiction/disposition hearing, the juvenile court sustained the allegations of an amended petition that Minor was at risk of physical and emotional harm because of the parents' history of engaging in domestic violence in Minor's presence and both parents' methamphetamine use. The court ordered reunification services.
In a May 2019 report submitted prior to the six-month review hearing, the Department stated that, since the jurisdiction/disposition hearing, Father had made no progress with his case plan and Mother's progress was minimal. Both parents continued to struggle with addiction. Mother tested positive for methamphetamine twice and missed several test dates. During visits with Minor, Mother sometimes demonstrated parenting skills but at other times was "nodding off" and unable to focus on Minor's needs. Father did not participate in any drug testing and did not appear for a scheduled intake appointment at a drug abuse center. Father was arrested twice during the reporting period, once for again violating the restraining order and once for possession of methamphetamine. Father missed more than one-third of his visits with Minor and was inconsistent with weekly scheduled telephone calls. Minor was physically and developmentally on track and participating in weekly individual therapy. Minor seemed to enjoy visits with both parents and was not distressed before or after the visits. The maternal grandparents were willing to adopt Minor if the parents were unable to reunify. The Department recommended an additional six months of services and the juvenile court so ordered at the May hearing.
In a November 2019 report filed in advance of the 12-month review hearing, the Department reported that Father continued to make no progress on his case plan, was arrested on theft charges, and was in custody awaiting sentencing. Father was not eligible for services at his current jail location, but had organized his own AA meetings with other inmates. Father told the Department he had been clean since June, although in September the jail found Father in possession of prescription drugs that were not his prescription. Minor wanted to see Father but was scared by the jail, so visits had been reduced. Mother had made significant progress on her case plan: she completed a psychological evaluation, was attending weekly therapy, taking all prescribed psychotropic medication, finalizing her divorce from Father, completed a parent education program, and had asked to begin family therapy with Minor. Mother had entered a residential substance abuse program and was scheduled to successfully complete it before the review hearing. After completion, she planned to enter a sober living environment and participate in aftercare services. Mother began having unsupervised visits in September and overnights in October. Minor reported that she "loves" the visits and felt safe with Mother. The Department recommended reunification services be terminated for Father and continued for Mother, and the juvenile court so ordered at the November review hearing.
In December 2019, the Department filed a section 388 petition requesting the juvenile court terminate Mother's reunification services and set a section 366.26 hearing. The Department reported that after returning from an overnight pass from her sober living housing, Mother tested positive for amphetamine and methamphetamine. Mother initially contested the petition but later withdrew her contest and the court terminated Mother's reunification services and set a section 366.26 hearing.
In February 2020, Father filed a section 388 petition requesting reunification services and increased visitation. Father stated that he had been in a residential treatment program since January, planned to remain in the residential program for six months and then move to a sober living environment, and was participating in counseling and parenting programs. The juvenile court summarily denied the petition.
In a June 2020 report filed in advance of the section 366.26 hearing, the Department reported Father was still in the residential treatment program. The social worker noted that Father was released from jail into the residential program and, while he had been doing well, he had not yet demonstrated stability outside of such "highly structured environments." Before the Covid-19 shelter-in-place orders, the paternal grandparents were bringing Minor every other week for supervised visits with Father. Visits then switched to video and telephone calls. As for Mother, in January she was visiting Minor multiple times per week and calling her daily. In February, she had a positive drug test and was charged with driving under the influence. For a few weeks after this relapse, Mother was not in communication with the maternal grandparents. When she resumed contact, the Covid-19 shelter-in-place orders had taken effect so Mother had telephonic and video visits with Minor. The Department social worker observed video visits with both parents and opined that while Minor loved her parents, they "play a 'playful visitor role' in [her] life." Minor received "her basic needs, comfort, structure and support" from the maternal grandparents. The Department social worker had talked to Minor about where she was going to live. Minor said she knew she would probably stay with her grandparents; when asked how she felt about that, she responded, " 'Good. I like doing it but I don't at the same time.' " Minor said she liked being with them and snuggling in bed with them, and talked about how they took care of her. When asked what she did not like, Minor said, " 'Well, I wanted to grow up with mama. I still feel like that kind of.' " Minor said she wanted to live with Mother and, if she could not live with Mother, she would live with Father. The social worker opined that Minor benefitted from the structure and predictability of the maternal grandparents' home, sought comfort and parental guidance from them, and had developed strong emotional ties to them. Minor had lived with her maternal grandparents since the beginning of the dependency case and "has thrived and grown tremendously in her time with [them]." They were committed to adopting Minor. Minor's therapist told the Department that Minor was still "fairly fearful" of Father, Minor was "very parentified" and afraid of making Mother or Father sad, the therapist never heard from Minor that she wanted to live with Mother or Father, Minor was thriving with the maternal grandparents, and adoption by maternal grandparents would be in Minor's best interest. The Department recommended terminating parental rights and ordering a plan of adoption. Minor's counsel agreed with this recommendation.
A few days after the Department filed its report, Father filed a section 388 petition asking the juvenile court to order reunification services or return Minor to his care. Father relied on the following changed circumstances: he was scheduled to graduate from the residential treatment program in July, had been working and was applying for better jobs, and would have a place for Minor if she is returned to Father's care.
Mother also filed a section 388 petition seeking reunification services or Minor's return to her care, and filed a request for a bonding study. The juvenile court denied both and Mother has not appealed these rulings.
In July 2020, the juvenile court held a combined evidentiary hearing on the section 388 petition and section 366.26 hearing. The Department social worker testified Mother was unable to put Minor's emotional needs first. Minor was often worried about her parents' reactions to what Minor said, which impacted her ability to have a parental relationship with them. Father's visitation had been supervised throughout the dependency case, and the social worker testified she thought Minor was comfortable visiting with Father because she knew someone else would always be there. Minor was stable and at ease in the maternal grandparents' home, was able to share her emotions with them without having to worry about their feelings, and had a parental relationship with them.
Father testified he had been sober for more than a year. He was scheduled to graduate from his residential treatment program in July and planned to move in with his parents, continue working, and attend a one-year aftercare program. He had lived with Minor and Mother until Minor was five years old and had continued to see her after he and Mother split up. He believed he and Minor had a strong bond and that she was not afraid of him.
Mother testified that she was currently visiting Minor at least three times per week, Minor seeks out Mother for comfort, and Minor confides in Mother. Mother had been sober since May 30, 2020, and was living in a sober living environment, trying to resume individual therapy, attending weekly meetings with her sponsor, and taking medication for anxiety and bipolar disorder. Mother believed she had a parental relationship with Minor, for example, she made sure Minor did her homework. Mother's counsel argued the beneficial parental relationship exception applied.
The juvenile court denied Father's section 388 petition. The court applauded the progress Father had made and found he demonstrated "some changed circumstances." The court recited numerous instances of Father's domestic violence from 2017 and 2018, some in Minor's presence, and stated, "all of that I can consider in deciding whether or not it would be in [Minor's] best interest to reunify with you. . . . [¶] Based on the totality of the circumstances which got us here, and also listening to [Minor] and her statements about her fear, and though the fear I think is abating to some extent. She's going to live with this period in her life for the rest of her life, and potentially affecting her ability to form long-term relationships, her ability to feel safe."
Turning to the section 366.26 hearing, the court observed that Minor loved both parents but had a "parentified relationship, meaning she is worried about both of you." The court observed that although mother was in "frequent and loving contact" with Minor, Minor "looks to her grandparents for the parental nurturing and caregiving and comfort and sol[a]ce." The court found that it would not be detrimental to terminate parental rights and it was in Minor's best interests to do so. The court terminated parental rights, found Minor adoptable, and ordered a permanent plan of adoption.
DISCUSSION
I. Father's Section 388 Petition
"A juvenile court dependency order may be changed, modified, or set aside at any time. (§ 385.) A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The parent, however, must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (a)(2); [citation].) [¶] Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion." (In re J.C. (2014) 226 Cal.App.4th 503, 525.)
"Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) " 'A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.' " (In re J.C., supra, 226 Cal.App.4th at p. 527.) A section 388 petition at this time "provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status." (In re Marilyn H., at p. 309.)
Father argues the juvenile court applied the wrong legal standard by focusing on the domestic violence incidents leading up to the dependency proceeding. Father points to factors identified in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.): "(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." (Id. at p. 532.) To the extent Father suggests these factors are exclusive, Kimberly F. itself clarified that "this list is not meant to be exhaustive." (Ibid.) In any event, the juvenile court's consideration of the domestic violence incidents leading to the dependency was not improper: even assuming Kimberly F. sets forth the appropriate factors, it includes consideration of "the problem which led to the dependency." (Ibid.; see also In re Justice P. (2004) 123 Cal.App.4th 181, 189 ["In determining whether the [§ 388] petition makes the necessary showing, the court may consider the entire factual and procedural history of the case."].)
Kimberly F. was criticized by In re J.C., which "decline[d] to apply the Kimberly F. factors if for no other reason than they do not take into account the Supreme Court's analysis in [In re] Stephanie M. [(1994) 7 Cal.4th 295], applicable after reunification efforts have been terminated." (In re J.C., supra, 226 Cal.App.4th at p. 527.)
Father also contends the juvenile court failed to consider the Kimberly F. factors. Even assuming a court is required to consider each of the factors identified in that case, we reject the argument. The juvenile court considered some of the Kimberly F. factors in its discussion of the domestic violence incidents leading to the dependency proceeding and of Minor's fear of Father. We decline to assume the court failed to consider other factors simply because it did not expressly identify them. (See Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1025 ["In light of the juvenile court's failure to articulate an incorrect standard, father's failure to request clarification of the record below, and the presumption the juvenile court applied the correct statutory standard of proof, this issue fails for want of a record which affirmatively demonstrates error."].)
Father argues there was no evidence that Minor's fear of Father stemming from the domestic violence incidents was still a concern at the time of the section 388 hearing. We disagree. Less than two weeks before the section 366.26 hearing, Minor's therapist told the Department that Minor was "still fairly fearful" of Father. The Department's section 366.26 report stated Minor had gotten "through some of her fears of [Father]." (Italics added.) At the hearing, the social worker testified to a recent interaction between Minor and Father that indicated Minor was "still in a state of testing. Is dad someone who's safe? Is dad someone that I can trust?" There was evidence that Minor remained at least somewhat fearful of Father.
Father argues the juvenile court failed to sufficiently consider Minor's wishes. As an initial matter, Father fails to explain how evidence that Minor expressed a wish to live with Mother demonstrates that reinstating reunification services with Father would be in Minor's best interest. Father points to one instance in which Minor said she would like to live with Father if she could not live with Mother. "[A]lthough a child's wishes may be evidence of what is in his best interest, they cannot be dispositive." (In re Jacob P. (2007) 157 Cal.App.4th 819, 832.) The juvenile court could properly determine that this isolated statement did not outweigh other evidence that Minor's interest in permanency and stability would be best served by proceeding to permanency planning.
Father emphasizes the progress he made in his sobriety. Indeed, the juvenile court applauded Father's efforts. But the court's focus was properly on Minor's interest in permanency and stability. Father has not shown the court erred in denying his section 388 petition.
II. Termination of Parental Rights
Mother argues the juvenile court erred in terminating parental rights and ordering a permanent plan of adoption. Father joins in Mother's arguments.
A. Beneficial Parental Relationship Exception
Mother first argues the juvenile court erred in finding the beneficial parental relationship exception did not apply. We disagree.
1. Legal Principles
"At a permanency planning hearing, the court may order one of three alternatives—adoption, guardianship, or long-term foster care. [Citation.] If a child is adoptable, there is a strong preference for adoption over the alternative permanency plans. [Citations.] If the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)." (In re Collin E. (2018) 25 Cal.App.5th 647, 663.)
"An exception to termination of parental rights applies 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).) 'Evidence of "frequent and loving contact" is not sufficient to establish the existence of a beneficial parental relationship.' [Citation.] ' "[B]enefit from continuing the . . . relationship" ' means the parent-child relationship '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.' [Citation.] 'If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.' " (In re Collin E., supra, 25 Cal.App.5th at p. 663.)
When reviewing the applicability of the beneficial relationship exception, some courts have used a substantial evidence standard, while others have applied an abuse of discretion standard. (In re G.B. (2014) 227 Cal.App.4th 1147, 1166, fn. 7.) The issue is currently before the California Supreme Court. (In re Caden C., review granted July 24, 2019, S255839.) We need not weigh in on the matter because, "[o]n the record before us, we would affirm under either of these standards." (In re G.B., at p. 1166, fn. 7.)
2. Analysis
As Mother notes, the juvenile court found Mother maintained regular visitation with Minor. Mother argues she and Minor have a strong and loving bond, noting Minor lived with Mother for the first six years of her life. However, these factors alone are insufficient to warrant application of the exception. " 'No matter how loving and frequent the contact, and notwithstanding the existence of an "emotional bond" with the child, "the parents must show that they occupy 'a parental role' in the child's life." ' " (In re G.B., supra, 227 Cal.App.4th at p. 1165.) The juvenile court found Mother's relationship with Minor was not parental and that Minor instead looked to the maternal grandparents for a parental relationship. This finding is supported by substantial evidence and is not an abuse of discretion.
Mother points to Minor's expressed wish to live with Mother, and a statement that Minor would be sad if she could not do so. We note that there was some conflicting evidence: The social worker's notes from a June 2020 conversation with Minor's therapist state the therapist said she "never hears from [Minor] about really wanting to live with mom and dad. She is not begging for that contact." In any event, as noted above, a child's wishes are not dispositive. (In re Jacob P., supra, 157 Cal.App.4th at p. 832.) The juvenile court could properly conclude that, despite Minor's statements, Minor's relationship with Mother was not parental and did not outweigh the benefits of adoption.
Mother argues the juvenile court improperly imposed an expectation of daily parental care, impossible for a noncustodial parent. Mother provides no record citation for the juvenile court's imposition of such a requirement; none appears in the record.
Finally, Mother argues the juvenile court could not rely on any likelihood that Mother would have postadoption contact with Minor. We agree. (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382 ["a posttermination visitation order is unenforceable, and the court must presume that termination of parental rights will result in cessation of all contact between parent and child"].) However, although the juvenile court expressed its hope that the maternal grandparents would allow contact with both parents, there is no record indication that the court considered it in making its termination decision. (See id. at p. 1384 ["we do not discern any indication in the record that the court based its assessment of the minors' best interests on the expectation of continued visitation by the parents"].)
B. Permanent Plan Selection
Mother next argues the juvenile court "erroneously declared it was obligated by law to choose adoption as a permanent plan." Mother is apparently referring to the following statement by the court: "I have a quote here. Let me read this. 'When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent-child relationship then the Court must choose,' or I think the Court is obligated to choose, 'that the best interest would be in adoption.' "
See In re Zachary G. (1999) 77 Cal.App.4th 799, 811 ["When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption."].
"[I]f the child is adoptable . . . [,] adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.] . . . The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R. (2003) 31 Cal.4th 45, 53; see also § 366.26, subd. (c)(1) ["[i]f the court determines . . . that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption" unless specified exceptions apply (italics added)].) The juvenile court, having found Minor adoptable and having further found the beneficial parental relationship exception did not apply (Mother does not argue any other statutory exception applies), was required to order a permanent plan of adoption.
Mother argues there was no need to favor adoption over guardianship in this case because guardianship with the maternal grandparents would be stable. " 'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.' " (In re Celine R., supra, 31 Cal.4th at p. 53.) In any event, as explained above, the juvenile court did not have the discretion to make this determination.
Mother makes arguments about the maternal grandparents' reasons for wanting to adopt Minor and purported prior promises they made to only seek guardianship. Mother cites no record evidence for any such promises, and the juvenile court stated it had independently reviewed the record and found none. In any event, Mother cites no authority that these are proper factors for consideration in selecting a permanent plan.
DISPOSITION
The orders are affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
BURNS, J. /s/_________
RODRIGUEZ J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.