Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK70079, Donna Levin, Juvenile Court Referee.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant Rachel C.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant Jesse M.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
ARMSTRONG, J.
Jesse M. and Rachel C. appeal from the order terminating their parental rights to their daughter Grace. Rachel C. additionally appeals from the denial of two motions under Welfare and Institutions Code section 388. We affirm.
All further statutory references are to that code.
Facts
This was an unusually long dependency. The section 300 petition was filed in September of 2007, when Grace was three years old, and parental rights were not terminated until July 2010. To summarize:
In September of 2007, Mother was hospitalized with a concussion and head trauma. Father was arrested for domestic violence, though he was never charged. Grace told the social worker that Father hit Mother, causing Mother to fall. DCFS additionally reported that Father had bruises inflicted by Mother, and that there had been a referral for domestic violence in 2004, resulting in voluntary family maintenance services.
Grace was detained and was soon placed with her maternal grandmother. A section 300 petition filed under subdivision (b), and was sustained in November 2007, on factual allegations concerning the 2004 and 2007 incidents of domestic violence.
Initially, Mother and Father made inconsistent statements about the allegations of domestic violence, at times admitting it and at times denying it. For most of the rest of the dependency, they denied that any violence had taken place.
Reunification services were ordered, including domestic violence programs and counseling. Father had admitted to past drug use, and his case plan also included drug testing, with a drug program if he missed a test or tested positive for drugs. The parents only partially complied. That is, they completed parenting programs, and Father drug tested twice (though he maintained that he completed his testing, but that the paperwork was lost) and did not take a drug program. Reunification services were terminated in November 2008, about a year after the petition was sustained.
For the first two years of the dependency, DCFS consistently reported that Grace was well cared for by her grandmother and recommended that Grace be adopted by her grandmother. The section 366.26 hearing was continued several times for the completion of the homestudy for that adoption. However, by the time the section 366.26 hearing actually began, which was not until January 2010, there were new potential adoptive parents.
This is what happened: almost from the beginning DCFS had indications that Grandmother allowed the parents unmonitored access to Grace (the order was for monitored visits) and that Mother, or Mother and Father, actually lived in the home with Grandmother and Grace. Grandmother was admonished about this, but the problems persisted. DCFS also had indications that the family was not truthful concerning such things as Mother's employment, Grace's school, Mother's new baby, Jordan (born on October 15, 2009) and other matters.
During her pregnancy, Mother refused to tell DCFS when the baby was due. In fact, she still appeared to be pregnant at several visits after Jordan was born. Father visited Grace on the day Jordan was born, and told DCFS that Mother was not visiting because she was taking a class. Mother brought Jordan to visits with Grace but at first told the monitor and Grace that she was babysitting for a friend. Father was named as the father on Jordan's birth certificate, but Mother at times told DCFS that he was not the father. The parents gave DCFS and DPSS different information about Jordan's parentage, their marriage, and their address. Grandmother told DCFS that she had enrolled Grace in preschool, but DCFS later learned that she had been to that school only briefly, and was attending a different school, which Mother had enrolled her in, using a false address. DCFS also believed that Mother provided a false employment verification letter in connection with an early section 388 petition.
In September 2009, social worker Barbara Chen (who was new to the case) paid a visit to Grandmother's home and found that Grandmother was in China and had left her mother, an unauthorized care-giver, with Grace. (Mother and Grandmother insisted that DCFS knew of and approved of the trip and of maternal great grandmother.) Based on the trip and the other deceptions, Grace was removed from her grandmother's home. She was soon placed in the foster home where she has remained, with the foster parents who are now her potential adoptive parents.
Throughout the remainder of the dependency, both parents visited regularly and appropriately and had positive contact with Grace.
In the period between Grace's removal from Grandmother's home and the section 366.26 hearing, DCFS continued to report on Mother's compliance with the case plan, in part because Mother, Grandmother, and Father filed section 388 petitions. In July 2009, Mother enrolled in counseling, and her therapist reported positively on her first nine sessions. However, she was terminated from counseling in December 2009 because she had missed too many sessions. DCFS reported that the therapist said that Mother was evasive in therapy and did not talk openly about the domestic violence. Mother re-enrolled in January, but was soon terminated for lack of participation. In October 2009, Mother completed 18 sessions of a domestic violence program for victims. The instructor, Linda Rodriguez, told the social worker that Mother was "very quiet, non-participating, and non-sharing, and appeared to be afraid to tell the truth, " and that she had enrolled in a 26 week program and had only completed 18 sessions. Later (in April 2010) Mother submitted a letter from Rodriguez explaining that Mother had completed 54 hours, in 18 sessions.
There is no indication that Father complied with his case plan in this period. Also in this period, DCFS reported that soon after Grace was placed in her new foster home, Mother and Father alleged that Grace had been abused in that home. Grace had a forensic examination and the allegation was deemed unfounded. DCFS wrote that Mother "did not appear to show any concern that her own daughter had to go through the forensic exam due to her false allegation. She did not ask at all how Grace was doing during the exam or what Grace's reaction was after the exam."
Finally, in this period DCFS began to report that the parents and grandmother were alleging that social worker Chen was untruthful and was biased against them. Grandmother alleged that Chen offered to return Grace to her, for a payment of $2,000. Chen denied these allegations.
As noted, the section 366.26 hearing began in January 2010. DCFS introduced its reports and Father called social worker Chen. After Chen testified that she had not considered the relationship between Grace and Jordan as part of the adoption assessment, Mother moved for a continuance so that DCFS could make that assessment. The court granted the motion and continued the case until March 1, 2010.
On February 25, 2010, Mother filed a section 388 petition asking to have Grace placed with her or with Grandmother, and that the court order a bonding evaluation to address Grace's relationships. She wrote that she continued to be in compliance with the case plan and that Jordan was thriving in her care. The court granted a hearing.
At the March hearing, the court continued the section 366.26 hearing and the hearing on the section 388 petition and appointed Dr. Michael Ward to assess the relationships between Grace, and her parents, her baby sister, and her prospective adoptive parents.
Dr. Ward made his lengthy report in March. He wrote that Grace had a good relationship and bond with the foster parents and with her biological family, though there were indications that her strongest bonds were with Father and her foster mother. Grace's initial primary bonds to her parents and grandmother had enabled her to form relationships with others, such as her foster parents.
Dr. Ward opined that termination of any of these relationships would be harmful to Grace, but that the impact of losing her biological family would be worse. Grace would ultimately handle any of those breaks, but she would have more difficulty dealing with the break with her biological family. Dr. Ward observed that the primary concerns with the maternal family were about deception which was not related to a risk of abuse, and that Grace should not be punished for her parents' or grandmother's disobedience with court orders.
As to Grace's relationship with Jordan, Dr. Ward wrote that Grace was interested in Jordan and appeared to be forming a bond which would continue to grow, if they had contact.
The section 388 hearing resumed on May 3, 2010. Dr. Ward's report was admitted into evidence, as was a new DCFS report to the effect that Grace was doing very well with her foster parents, and that her parents and grandmother had visited. Grace had by then started therapy, and her therapist's March 2010 letter was attached. It reported favorably on Grace's foster home and relationship with her foster parents, and noted that Grace only mentioned her biological parents a few times.
Mother testified that (with help from Grandmother) she had taken care of Grace from her birth to her removal in 2007. She testified concerning her compliance with her case plan, the lessons she learned from her domestic violence classes, her visits with Grace, and her ability to be a good parent to Grace and to comply with court orders. She testified that she and Father were together, on and off, after Grace was detained, but that they had broken up a year ago. They remained friends, but Father did not live with her and never spent the night at her house. She had never lied to Chen, who had yelled at her, and who was unhelpful.
Mother was cross-examined on the history of domestic violence and her representation to Dr. Ward that there had been no domestic violence, and other subjects. When asked whether she and Father had any domestic violence, she said "Well, maybe, no, not really, " and that her 2007 bruises were not caused by Father. She testified that Father yelled, and had an "anger problem" and was not safe to be around children.
Mother also called Chen, and questioned her concerning her objectivity, her concerns about the maternal family's honesty, and other matters. Chen testified that on her sole visit to Mother's home since Jordan's birth, her observation was that Jordan was thriving and was not in danger. She testified that she was objective and unbiased, and also testified that after Grandmother accused her of soliciting a bribe, she asked to be taken off the case, although she testified that she did so because she had too many cases.
In one of the rulings challenged on this appeal, the court denied the February 25 section 388 petition, finding that Grace's best interest would not be served by the proposed change of order.
The court continued the section 366.26 hearing to July 20, 2010, and ordered DCFS to provide a further 366.26 report addressing the bond between Grace and her parents, and with a consideration of legal guardianship.
On July 19, 2010, before the continued section 366.26 hearing could be held, Mother filed a new section 388 petition, asking that Grace be placed with her or with Grandmother. She attached proof that she had just completed a 26 week domestic violence program and proof that she had re-enrolled in counseling and attended three sessions. In another of the rulings challenged on this appeal, the court denied the petition without a hearing on the ground that it did not state new evidence or a change in circumstances, and did not promote Grace's best interest.
When the section 366.26 hearing was resumed in July, the court admitted DCFS's July reports, which largely concerned Grace's good relationship with her foster parents and her happy life in their home. DCFS also reported that Father had submitted proof that he had enrolled in a domestic violence program in March 2010 and attended 14 sessions and that he had said that he would make efforts to complete the drug program ordered by the court. DCFS also reported that the prospective adoptive parents were not interested in legal guardianship.
Father called Chen, who testified concerning the statement that the foster parents were not interested in legal guardianship or a post-adoption contract which would allow contact with the parents, her statement, in her report, that Grace had forgotten about her previous home, her belief that Dr. Ward was biased against adoption, her interviews with Grace, the parents' visits, Grace's relationship with Jordan, and other matters. Chen testified that Grace was not bonded to Jordan, although the parents had tried to foster a relationship during visits, that she disagreed with Dr. Ward's assessments of Grace's ties, and that Grace's bond to her foster parents was becoming stronger and stronger as she spent more time in that home.
Mother then called Grandmother, who testified that she had cared for Grace from her birth until her detention from Grandmother. She testified concerning the family's visits with Grace, testifying that Grace often said that she wanted to come home to Mother and that she was unhappy in foster care and was hoping and thinking about coming home. She loved her parents and at the end of visits did not want to leave them.
At the conclusion of the section 366.26 hearing, the court found by clear and convincing evidence that Grace was adoptable and that none of the statutory exceptions applied, and terminated parental rights.
Discussion
1. The February 2010 and July 2010 section 388 petitions
Mother appealed from those rulings. Father, who joined in the February petitions in the juvenile court, and on appeal, joins in Mother's arguments to the extent that they are relevant to him.
The February petition
Mother argues that denial of the petition was an abuse of the court's discretion. In general, she supports her contentions by citing the evidence in her favor and by arguing that DCFS's evidence was not convincing, especially because the social worker was biased.
As to the evidence in her favor, Mother cites the evidence that she was successfully caring for Jordan, and Dr. Ward's conclusion that Grace would suffer more from the loss of her biological family than from her foster family. She argues that the problems which led to the dependency were not severe, citing her own testimony concerning the domestic violence and Dr. Ward's tests, which indicated that she did not have the personality of a domestic violence victim. She also cites her compliance with various programs, and the positive comments about her progress in therapy which were made in October 2009.
As to bias, Mother relies on Dr. Ward's observation that there was mistrust between the family and the social worker, and finds evidence that Chen was biased in the amount of investigation in this case, which in her view was designed to discredit Mother, in the fact Chen remained on the case after being accused of soliciting a bribe and after being asked to be removed from the case, and in the fact that the DCFS report after Dr. Ward reported does not mention his report or the fact that Jordan was not detained. She also finds bias in the fact that Chen's observation of Grace's bond to her parents was different than Dr. Ward's observations.
She also suggests that Linda Rodriguez, the instructor in Mother's 2009 domestic violence program, did not make the statements about Mother's participation which Chen attributed to her. Mother makes this argument based on the fact that Rodriguez followed up by carefully documenting Mother's participation in a manner which, Mother believes, supported Mother's position that she completed the program the court ordered. We cannot see that Rodriguez's documentation does support Mother's position, or indeed that anything about Rodriguez's attempts to document Mother's participation casts doubt on the social worker's credibility.
With reference to DCFS reports that Mother submitted false employment verification, false information on Jordan's parentage, and similar matters, Mother also argues that the incidents did not pose a risk of danger to Grace.
The applicable law is well established. "The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the child's best interests. (§ 388; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) This is determined by the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.) After termination of services, the focus shifts from the parent's custodial interest to the child's need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) 'Whether a previously made order should be modified rests within the dependency court's discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.' (In re Michael B., supra, 8 Cal.App.4th at p. 1704.)" (In re Amber M. (2002) 103 Cal.App.4th 681, 685.) Under those criteria, we cannot see that the court abused its discretion.
First, Mother's arguments concerning Chen's credibility do not establish abuse of discretion. Credibility determinations are for the trier of fact. The juvenile court obviously rejected Mother's contention that Chen was biased, and the decision was that court's to make. Next, while there was evidence supporting Mother's petition, there was other evidence. That evidence was, inter alia, that the domestic violence problems were real and serious and had not been addressed, but that Mother continued to minimize those problems. Although Dr. Ward had opined that Grace would suffer more from the loss of her biological family, there was evidence that she was increasingly attached to her foster parents as time went on. The dependency had already been a lengthy one. As Mother argues, there were, early on, positive statements from her counselor, but there were also negative statements, and the evidence was that Mother was not in counseling for very long.
We make the same observation concerning DCFS's suggestion that Dr. Ward was biased against adoption. He wrote that he was "not as fervent as some" in the belief that adoption was always in a child's best interest, and that in some cases, it was not the best choice. The juvenile court rejected the notion that this constituted a bias, as do we. If Dr. Ward, or any other doctor, believed that adoption was the best choice in all cases, there would be no reason to appoint that doctor to evaluate a child or any family.
After hearing a tremendous amount of evidence, the juvenile court weighed the conflicting evidence and found that Grace's best interest lay in remaining with her foster parents, despite the fact that she still had ties to her parents and despite Mother's recent efforts to comply with her reunification plan. The finding does not constitute an abuse of discretion.
Denial of a hearing on the July 2010 petition
In order to trigger a right to a hearing on a section 388 petition, the petition must make a prima face showing. "There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.] (3) We review the juvenile court's summary denial of a section 388 petition for abuse of discretion. [Citation.]" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Mother argues that she established changed circumstances with the evidence that she had completed additional domestic violence classes and had re-enrolled in counseling. As DCFS notes, this is at best a minimal change. In any event, we cannot see an abuse of discretion in the court's decision that Mother did not make a prima facie case that a change in placement would be in Grace's best interest.
The court had only recently held a full hearing on that issue. The evidence concerning Grace's best interest was controverted, but the court's decision was based on the evidence and was well within its discretion. We cannot see that the petition made a showing that another hearing on the same issue was warranted.
2. The order terminating parental rights
We begin with Mother's argument that the court erred in terminating parental rights because the adoption assessment did not comply with section 361.5. She argues that under that statute, the assessment must include an analysis of the relationship of the child to his or her siblings, and parents. Perhaps, but there can be no doubt that the court had extensive, if controverted, evidence concerning Grace's bonds with her family, including Jordan and her parents. Dr. Ward assessed those bonds, as did the social worker. The fact that some of the information was presented in Dr. Ward's report, rather than DCFS's report, is of no moment. (In re Crystal J. (1993) 12 Cal.App.4th 407, 413 [deficiencies in the adoption assessment go to weight]; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481-1482 [substantial compliance with the statute is sufficient].)
The statute provides that the assessment must include "A review of the amount of and nature of any contact between the child and his or her parents and other members of his or her extended family[, including siblings, ] since the time of placement." (§ 361.5, subd. (g)(1)(B).)
Next, both parents argue that the court erred by terminating parental rights because the parent-child exception applied.
At a section 366.26 hearing, on a finding that it is likely the child will be adopted, the court must terminate parental rights and order the child placed for adoption unless "The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances." (§ 366.26, subd., (c)(1)(B).) Section 366.26, subdivision (c)(1)(B)(i) sets forth one of those circumstances. It provides that parental rights should not be terminated if "The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
The burden is on the parent to show that termination of parental rights would be detrimental to the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 805-807.) To overcome the preference for adoption and avoid termination of parental rights under subdivision (c)(1)(A), "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. [Citations.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 466-467.)
"Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. (See Goldstein et al., Beyond the Best Interests of the Child (1973) p. 17.) The relationship arises from day-to-day interaction, companionship and shared experiences. (Id. at p. 19.) The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Both the substantial evidence standard of review and the closely related abuse of discretion standard have been applied to the decision. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, and In re C.B. (2010) 190 Cal.App.4th 102 and the cases collected therein.) We see no ground for reversal under either standard.
Both Mother and Father rely on the evidence that Grace was attached to her parents, wanted to see them, and would suffer from their loss. There certainly was such evidence, making this case a heart-breakingly difficult one. Nonetheless, Grace had not lived in her parents' home for almost three years before termination of rights. As Father argues, her parents certainly seem to have had ample contact with her for the first two of those years, but the contact was unauthorized, and the juvenile court could not know how much contact there was, or the quality of the contact, or whether it was Mother, Father, or Grandmother who cared for Grace in those years. The court knew, too, that Mother and Father continued to minimize the violence that had taken place between them, and had no current information on Father's drug use. All of this supports the court's finding that Grace would not be "greatly harmed" by the termination of parental rights.
Nor can Father prevail on his argument that termination of parental rights was in error because there was no evidence that foster parents would have asked that Grace be removed from their home if legal guardianship was chosen as the plan. Adoption is the statutorily preferred plan, even if legal guardianship is available.
Disposition.
The judgment is affirmed.
I concur: TURNER, P.J.
MOSK, J., Dissenting
First, a Welfare and Institution Code section 388 petition hearing is required if the petition sets forth a prima facie showing. I have difficulty reconciling this standard with an abuse of discretion standard of review.
Second, with respect to the termination of parental rights, the adoption assessment did not comply with Welfare and Institution Code section 361.5 subdivision (g)(1)(B). That assessment was important in this case because of Dr. Ward’s view as to the detrimental effect of termination of parental rights and the apparent lack of any analysis of the sibling relationship. If the case is “a heart-breakingly difficult one, ” there is all the more reason for strict compliance with the law and the maximum amount of evaluation. For this reason, I would reverse and remand the matter back to the juvenile court for a proper adoption assessment.