Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK31804. S. Sobel, Juvenile Court Referee.
Law Offices of Vincent W. Davis & Associates, Vincent W. Davis and Mark L. Tseselsky for Plaintiff and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens and Aileen Wong, Deputy County Counsel, for Defendant and Respondent.
ARMSTRONG, J.
Laura C. appeals from orders made in the dependency proceeding concerning her son Michael G. We affirm.
Facts
The Welfare and Institutions Code section 300 petition in this case was filed in November of 1999, when Michael was four months old. From the outset, he was placed with his paternal aunt, B.G., and he has lived with her ever since.
All further statutory references are to that code.
The petition was sustained on allegations about appellant's drug use, a physical confrontation with Michael's father, and the dependent-child status of her three older children. Reunification services were ordered. Appellant only partly complied with her case plan, and in December 2000, reunification services were terminated and a section 366.26 hearing was set.
Appellant's parental rights to those children were terminated in October 1999.
That hearing took place in May of 2001. The court heard evidence concerning appellant's additional efforts with regard to drug rehabilitation and counseling, and B.G.'s testimony concerning appellant's improved interaction with Michael during visits. B.G. believed that it would be best for Michael if his parents "had another chance." She thus preferred guardianship to adoption, although she testified that she was committed to Michael and would adopt him if his parents failed to reunify with him.
The court found that B.G. was unwilling to adopt due to exceptional circumstances and ordered legal guardianship with her as Michael's permanent plan. (§ 366.26, subd. (c)(1)(d).) Counsel for appellant was relieved soon thereafter. Letters of guardianship were issued in July 2001, and in January 2002, the court terminated jurisdiction, although it retained jurisdiction over the guardianship.
In July of 2005, appellant filed a section 388 petition. The petition itself is not in our record, but our record does indicate that the petition was denied without a hearing on July 15, 2005. Appellant filed another section 388 petition in October 2005. She attached evidence that she had completed six months of after care for drug and alcohol treatment, with random drug tests, and four months of parenting and anger management classes. This petition was set for a hearing. Adam Reed, who had earlier represented appellant, was appointed to represent her, and DCFS was ordered to investigate and report.
The report is dated October 14, 2005. It states that appellant was employed, had a home which was clean and neat, and had completed drug treatment and parenting education. Appellant told DCFS that she visited Michael twice a week, had overnight visits, and that he spent half the year at her house. B.G. said that appellant visited once or twice a month and that appellant had had only four overnight visits during the entire dependency. DCFS also reported on a recent domestic violence incident involving appellant and Michael's father, and B.G.'s belief that appellant was not ready to care for Michael.
On November 14, Reed was relieved and Roberto Flores, who at one point had represented Michael's father, was appointed to represent appellant. The hearing on the section 388 petition was re-set for January. By that time, appellant and B.G. had agreed on more frequent visits. The court denied the petition, finding that although circumstances had changed in that appellant had "really turned her life around," it was not in Michael's best interest to terminate the guardianship.
In May 2006, appellant filed another section 388 petition, attaching the same documentation. This petition, too, was set for hearing. Flores was again appointed for appellant and DCFS was again ordered to report. The report includes Michael's unequivocal statement that he did not want to live with appellant, but wanted to be adopted by B.G., his "real mom." B.G. told DCFS that she wanted to adopt, and that she did not believe that appellant was ready to take care of Michael. Appellant told DCFS that she visited twice a month, but Michael said that he rarely saw her, and B.G. said that she had visited three times since October 2005. DCFS recommended that a new section 366.26 hearing be set, with adoption by B.G. as Michael's new permanent plan.
The section 388 petition was heard on June 30, 2006. Raymond Daniels (who had previously represented B.G.) appeared for appellant, making a special appearance for Flores. Daniels called B.G. and questioned her about appellant's visits. The court denied the petition and set a section 366.26 hearing.
The section 366.26 hearing was continued several times due to notice and other problems. In the meantime, appellant filed another section 388 petition. It is not in our record, but the record does establish that the case was called on April 19, 2007, that Flores appeared for appellant, and that the court noted that appellant filed the petition without consultation with counsel. The court told Flores, "I'm going to either deny it right now or I will give it to you to see if you can fix it." Flores responded, and the court found "Counsel would like to receive it back and assist the mother in perhaps filing something that the court would be more willing to hear rather than just denying this outright."
The section 366.26 hearing took place on April 30, 2007. The court first heard evidence from Michael, who testified that appellant visited twice a month, for about 20 minutes. He was happy to see her and would feel "a little sad" if he could not see her. He also testified that he wanted to stay with B.G.
Appellant began her testimony: for the last six months she had visited three times a week, for two hours. She had taken Michael out to eat, to the park, and to Knott's Berry Farm. The court then called the lunch recess, ruling that the hearing should be completed that day because Michael was in "incredible distress," almost in tears, during appellant's testimony, shaking his head "no" every time she spoke.
During the recess, appellant filed a new section 388 petition, citing her past record of progress in drug treatment, parenting, and other classes. When the hearing resumed, the court denied the petition, finding that while appellant was trying to turn her life around and that "You're certainly going to get to see your child so, the best life you live, the better it will be," return to her would not be in Michael's best interest.
Appellant resumed her testimony, testifying that before the most recent six month period her visits were about twice a week, and before 2006, she took Michael for weekends. She also testified that her relationship with Michael had changed in the last year. He was angrier, and more distant from her. She did not think she had a positive relationship with Michael, but wanted to build a relationship with him.
B.G. then testified. Her testimony was the appellant visited every two weeks, for about ten or fifteen minutes, at her house or at Michael's paternal grandmother's. She had only twice allowed appellant to take Michael out of her presence, and then only for short periods, perhaps to pick up food. Michael did not have overnight visits at appellant's house.
The court commended Michael on his good grades and good school attendance, and terminated parental rights.
Discussion
The 2005 and 2006 section 388 petitions
Appellant begins by contending that the trial court erred when it failed to appoint counsel to help her prepare her July 2005 section 388 petition and to represent her at the hearing at which that petition was denied; when it appointed Flores, who had previously represented Michael's father, to represent her with regard to her October 2005 section 388 petition; and when it allowed Daniels, who had previously represented B.G., to represent her at the June 2006 hearing on her May 2006 section 388 petition.
We agree with DCFS that appellant cannot raise these challenges now. The denial of a section 388 petition is an appealable order. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) These orders were not appealed, and the issues cannot be raised on this appeal, which is from termination of parental rights. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150; In re Janee J. (1999) 74 Cal.App.4th 198, 207.) We say the same about appellant's claim that she received ineffective assistance of counsel from Flores with regard to the section 388 petitions filed in this period. The claims are not cognizable on this appeal.
The April 2007 section 388 petitions/termination of rights
Appellant's remaining contentions are essentially based on arguments concerning her visits. She first contends that she received ineffective assistance of counsel from Flores with regard to the April 2007 section 388 petitions, and that she would have prevailed if those petitions (and the earlier ones) had documented the frequency of her visits and challenged B.G.'s reports to DCFS on that subject. She next contends that the court erred when it denied her final section 388 petition, given that she had made great progress in her programs and visited frequently. Finally, she contends that the "visits" exception to section 366.26's adoption preference (§ 366.26, subd, (c)(1)(A)) precluded termination of parental rights.
In each instance, appellant argues that the trial court should have credited her testimony about the frequency and duration of her visits, and discredited Michael's because of his age, and B.G.'s because she violated a court order when she allowed appellant unmonitored contact with Michael.
In no instance do we see grounds for reversal. First, neither Michael's age or B.G.'s violation of a court order automatically invalidated their testimony. It was for the trial court to evaluate their testimony, and appellant's, in light of all the relevant factors, and it was within the court's discretion to credit Michael and B., and discredit appellant.
Moreover, we cannot see that, even if appellant had presented proof positive that she visited as often as she said, the court abused its discretion in denying her final section 388 petition (In re Jasmon O. (1994) 8 Cal.4th 398, 415) or erred in terminating parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)
On a section 388 petition, the burden of proof is on the moving party to demonstrate that new evidence or changed circumstances mean that it is in the child's best interests that the challenged order be changed. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Here, the trial court found changed circumstances, that appellant had turned her life around, or was trying to. However, the court also had before it evidence that Michael had lived with B.G. for all but a few months of his life, that he was doing well in her care, and that he did not want to live with appellant, but wanted to be adopted by B.G. Appellant herself testified that her relationship with Michael was not good. We can see no abuse of discretion in the trial court's finding that return to appellant was not in Michael's best interest, and this is true no matter how often she visited.
Our analysis of the court's decision terminating parental rights is similar. Section 366.26, subdivision (c)(1)(A), 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." Thus, regular visits are not enough. The parent must prove that through day-to-day interaction and shared experiences, the parent occupies a parental role in the child's life, so that termination would be detrimental to the child. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) There was no such evidence here.
All of this means that the ineffective assistance claim must fail, because appellant has not shown that prejudice resulted from any failure of counsel's to supplement her section 388 petitions with documentation regarding her visits -- even assuming that some reliable documentation was available. The court's decision on the April 2007 section 388 petitions was based on Michael's long tenure with B.G., his express wish to be adopted by her, and all the other evidence cited above. It is not reasonably probable that a result more favorable to appellant would have been reached if her section 388 petitions had included additional information about her visits. Appellant has thus not established ineffective assistance of counsel. (In re O.S. (2002) 102 Cal.App.4th 1402, 1406; In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)
Disposition
The trial court rulings on the section 388 petitions are affirmed, as is the order terminating parental rights.
We concur: TURNER, P. J., KRIEGLER, J.