Opinion
B166582.
10-31-2003
In re N.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. N.W., Defendant and Appellant.
Merrill L. Toole and N.W., in propria persona, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, and Pamela S. Landeros for Plaintiff and Respondent.
N.W. appeals from a juvenile court order denying her petition brought under Welfare and Institutions Code section 388, and terminating her parental rights to minor N.B. and giving the Department of Children and Family Services (DCFS) custody and control of N.B. for purposes of adoption planning and placement. Through her petition, appellant sought placement of her daughter N.B. and son with her. We conclude that the juvenile court did not abuse its discretion in denying appellants section 388 petition and in terminating her parental rights to N.B. pursuant to section 366.26. Accordingly, we affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTS
In 1996, DCFS filed a section 300 petition on behalf of appellants daughter N.B. (born in 1992), son (born in 1989) and two other children. The petition alleged in part that appellant tested positive for cocaine at the birth of her youngest daughter, and that appellant has a long history of substance abuse rendering her incapable of providing regular care for her children. The petition further alleged that appellant occasionally left her children without adult supervision.
N.B. and son are the only children who are the subject of the order at issue in the instant appeal.
The juvenile court eventually declared the children dependents of the court. It ordered DCFS to provide family reunification services, appellant to participate in all scheduled counseling as directed by DCFS, that counseling include parenting and drug counseling, and that appellant submit to random drug testing.
According to a DCFS report for July 1997, appellant testified positive for cocaine on one out of two random drug tests. According to a DCFS report for January 1998, appellant was discharged from a drug rehabilitation program due to her "lack of cooperation and not testing for drugs" when asked to do so. At appellants request, DCFS referred her in November 1997 to a lab for random drug testing. The next month DCFS referred appellant a second time to the same lab because appellant said she had lost the referral sheet. As of January 2, 1998, appellant reportedly did not test with the lab. Her childrens foster parents reported that appellant was verbally abusive toward the foster parents during visitation with her children.
Another DCFS report stated that as of February 1998, appellant did not complete the drug treatment program. Her drug counselor stated that her attendance was not what he expected. The DCFS social worker only received one clean drug test, dated December 31, 1997, from the lab to which appellant was referred. A subsequent DCFS report stated that appellant stopped attending drug counseling in February 1998, after irregular attendance for one month. Mother reportedly was consistently late to visitation with her children, occasionally not coming at all. The DCFS report stated that when appellant did visit, "foster parents report that the visits last for approximately fifteen minutes. It is generally agreed that mother plays well with the children when she visits, and that the children go readily to her and appear to love and be bonded to her."
In April 1998, the juvenile court terminated family reunification services with respect to minors N.B. and son.
According to a DCFS report for August 1998, during some visits, appellant raised her voice and swore at staff. Son said that although he liked visiting with his mother, he felt angry and scared when she got angry. The children were reported to appear uneasy with their mother at times, and seemed cautious toward her as if they did not know what to expect. During one August visit, appellant "was appropriate and appeared to have a good visit with the children. She brought them food from McDonalds and interacted with them for the full visiting time."
In December 1998, DCFS reported that appellant had not visited her children since the last court hearing, which was in August, that she had not contacted the DCFS social worker, and that she had not contacted the foster parents to schedule or ask for a visit.
In September 1999 the juvenile court ordered son and N.B. placed in long-term foster care.
Because N.B.s foster parent informed DCFS in February 2000 that she would be moving to Texas, DCFS recommended that N.B. be placed in a relatives home to enable sibling visitation. After a few pre-placement visits, N.B. moved in with her paternal grandmother, who redecorated a bedroom for her. The grandmother has a big backyard with a tetherball set and lives down the street from a large park. The grandmother was already caring for N.B.s half-brother. DCFS reported that N.B. was "emotionally stable" and was doing well living with her grandmother.
According to a DCFS report for April 2002, appellant was now living at a homeless shelter. She claimed that she was in a substance abuse and job training program since January 24, 2002. There was no contact "between minors and their mother. Paternal grandmother stated mother has never called her daughter." It was reported that on March 27, 2002, N.B. expressed her love for her paternal grandmother, and wished to stay with her. Finding that appellant did not alleviate the conditions which led to her childrens dependency status, DCFS opined, "There is not a substantial probability of the minors returning home in the next period of supervision, as the mothers [sic] is not in compliance with court ordered drug rehabilitation and random drug testing."
For a hearing set for October 2002, DCFS reported that appellant was still living in the homeless shelter. DCFS stated that appellant "has not maintained contact with DCFS. She has not maintained consistent telephonic contact with her children also." DCFS reported that N.B. was doing well in school, and that she "appears to be emotionally stable." She expressed a desire to be adopted by her grandmother, who said she wanted to adopt N.B.
At the October hearing, the juvenile court set the matter for a section 366.26 hearing on February 14, 2003.
On February 13, 2003, appellant filed a section 388 petition naming N.B. and son and seeking a modification of the "setting of hearing pursuant to WIC sec. 366.26." Appellant alleged that she completed all court-ordered programs, consistently visited with her children and wanted them returned to her care and custody.
In support of the petition, appellant filed a declaration stating that she is now employed, that she has maintained visitation with her children, that she has acted appropriately during the visits, and that she realizes that alcohol and drugs cannot be part of her life. Appellant professed her deep love of her children, and declared that she regained her sobriety so that she can be a good mother. Appellant further declared that she submitted to random drug tests with no positive results. She stated that attached to her declaration were "certificates of completion for parenting, drug and alcohol rehabilitation, relapse prevention, as well as progress letters from my counselor, and a certificate of completion for an occupational training program, a certificate of perfect attendance and progress letters from my instructor."
According to the DCFS report for the February 14, 2003 hearing, N.B.s paternal grandmother stated that appellant "had not visited the minor for two and half years before the first visit occurred in October 27, 2002. Her third visit with her daughter was on 2-08-03. Mother has started telephone contacts with the minor. She called the minor multiple times in one day. N.B. stated she does not want to stay with her mother." DCFS reported that appellant participated in visitation after the court ordered the section 366.26 hearing, and that appellant "is aggressive and uncooperative. She refused to see this [DCFS] CSW [childrens social worker] for serving her notice of the hearing or to discuss about the custody of minor." DCFS recommended that appellants parental rights be terminated, and that N.B. be freed for adoption.
On February 14, the juvenile court continued the matter to March 7, 2003, for a contested hearing.
On March 4, appellant asked DCFS for an assessment of her home at the homeless shelter. An appointment was made for the next day, but appellant failed to keep the appointment. DCFS reported that appellant was eligible to stay at the shelter, which houses 31 residents, because of her homeless status. According to DCFS, the shelters administrator "insisted that mothers residence is inappropriate for the minors to stay."
In its report for the March 7 hearing, DCFS stated that of the three visits appellant had with N.B. since October 27, only the first was held at the grandmothers home. This was because the grandmother was reportedly "intimidated by mothers aggressiveness and verbally abusive language." DCFS further reported that appellant "refused to see this CSW for a home assessment. Also, she [has] failed to provide DCFS information needed to determine whether she had stable and drug free home to live in and to achieve a self-sufficient life style."
DCFS described the paternal grandmother as a 68-year-old widow and a retired teacher who confirmed that she loved N.B. very much and wanted to give her a stable, drug-free home and a good education. DCFS reported that N.B. and her grandmother have bonded, that the grandmother "devotes her life to provide care for" the girl, and that the girl wanted to be adopted by her grandmother. According to DCFS, during "the interview of the children, they were observed to be uneasy talking about their mother. The minors stated they enjoy visits and like to see mother but seem very cautious towads [sic] her. Minor son stated he does not want to stay with his mother and needs a lot of time to think about living with her. Minor N.B. appears to be intimidated by the prospect of living with her mother."
At the March 7 hearing, appellant testified that the homeless shelter can accommodate her children, with son having his own private room. Appellant testified that there are "always problems" visiting or talking on the telephone to her daughter. Appellant testified that N.B. "cant call her brother, her sister. . . . But she can go to the Jehovah Witness and do this and do that." Appellant admitted that she did not see her children for about two years. She said she "came back because I love my children. I didnt want my children to grow up and get 18 and 21 years old and on somebodys talk show or stressed out on somebodys couch talking to some counselor because they felt I abandoned them because I didnt love them or because I didnt care for them. I didnt have anything to work with, so I had to go regroup and come back and fight for my babies. And I am doing the best I can do with what I can do." Appellant said she stayed in Los Angeles because of her children. She said she is not asking to "snatch [N.B.] from her grandmother or where [son] is, but Im asking to be in their lives and have something to do with their upbringing."
The court denied appellants section 388 petition, finding it was not in the childrens best interest to be returned to their mother at this time and that "it appears that there are no seriously changed circumstances that would warrant the court returning the children to the mother at this time." The court stated that at the request of sons attorney, "and based upon that request only, the court would order that mother . . . have reasonable visitation [with son], monitored by a Department-approved monitor."
Under section 366.26, the court terminated appellants parental rights to N.B. and transferred her care, custody and control to DCFS "for the purposes of adoption planning and placement." The court found by clear and convincing evidence that it is likely that N.B. will be adopted, and gave appellant monitored visits "with adoptive parents [sic] consent." The court also ordered that sibling visits continue.
Appellant filed a notice of appeal from the order terminating her parental rights and denying her section 388 petition.
DISCUSSION
Preliminarily, we note that appellants counsel sent a letter stating counsels inability to file an opening brief and citing In re Sade C. (1996) 13 Cal.4th 952, 920 P.2d 716. There, the California Supreme Court held that the appellate court did not err in dismissing appeals as abandoned where no claims of reversible error were raised. (Id. at p. 994.)
We authorized appellant to submit a brief or letter stating any grounds or arguments that appellant wishes us to consider. Appellant has responded by writing a letter asking for a second chance to parent her children, now that she maintains she is sober. Appellant states that the grandmother has prevented the children from knowing their siblings who are not placed with the grandmother. Appellant also expresses concern that the grandmother puts her grandchildren in danger because, as a Jehovah Witness, she "does not believe in doctors." Noting that the grandmother is a senior citizen, appellant questions what would happen to the children if something would happen to their grandmother.
Appellants letter does not "present argument and authority on each point made [citations]." (In re Sade C., supra, 13 Cal.4th at p. 994.) Since she has not asserted any claims of reversible error, we may exercise our discretion to deem her appeal abandoned, and we may order dismissal of the appeal. (Ibid.) We choose not to do so in order to explain to appellant the legal bases for our decision.
We review both the denial of the section 388 petition and the order made under section 366.26 for abuse of discretion (In re Casey D . (1999) 70 Cal.App.4th 38, 47; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and uphold the juvenile courts findings if supported by substantial evidence. "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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. [Citations.]" (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479, 243 Cal. Rptr. 902, 749 P.2d 339.)
Subdivision (a) of section 388 authorizes a parent of a dependent child of the juvenile court, "upon grounds of change of circumstance or new evidence," to petition the court "for a hearing to change, modify, or set aside any order of the court previously made." Subdivision (c) states: "If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held."
"The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the childs best interests. [Citation.] A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. [Citation.]" (In re Casey D., supra, 70 Cal.App.4th at p. 47.) Furthermore, at the section 366.26 stage of a case, a minors interest in stability is a juvenile courts "foremost concern and outweighs any interest in reunification." (In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
Appellants petition and declaration filed in support of the her petition do not meet the burden of showing that a return of N.B. and son would be in their best interests. The record indicates that appellant continued to not cooperate with the DCFS social worker, and that her son and daughter continued to be uneasy about their mother. Although appellant testified that the homeless shelter where she was living had space for her children, the administrator of the shelter reportedly felt that it was inappropriate for the minors to stay. In any event, certainly a homeless shelter does not constitute a stable environment. Based on the record, we conclude that the juvenile court did not abuse its discretion in denying appellants section 388 petition.
Next, we consider the courts order under section 366.26. This statute states that it applies to children who are adjudged dependents of the juvenile court. ( § 366.26, subd. (a).) At the hearing held under section 366.26, the juvenile court, "in order to provide stable, permanent homes for these children, . . . shall make findings and orders in the following order of preference: [P] (1) Terminate the rights of the parent . . . and order that the child be placed for adoption . . . . [P] (2) On making a finding under paragraph (3) of subdivision (c), identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. [P] (3) Appoint a legal guardian for the child . . . . [P] (4) Order that the child be placed in long-term foster care . . . . [P] In choosing among the above alternatives the court shall proceed pursuant to subdivision (c)." ( § 366.26, subd. (b).)
Subdivision (c)(1) of section 366.26 states that if the juvenile court determined, "by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." This subdivision also sets forth four exceptions to the termination of parental rights. They are: "(A) The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. [P] (B) A child 12 years of age or older objects to termination of parental rights. [P] (C) The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed. [P] (D) The child is living with a relative or foster parent who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the child."
"The purpose of section 366.26 is to select a permanent plan for a child who cannot return home because reunification efforts have failed." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Although adoption necessarily entails termination of a biological parents rights, "in selecting a permanent plan for an adoptable child, the court must bear in mind the basic preference for adoption over nonpermanent forms of placement." (In re Teneka W . (1995) 37 Cal.App.4th 721, 728.)
Appellants concern that N.B. will not have contact with her siblings ignores the juvenile courts order that sibling visits continue. Her concern that the grandmothers religion puts N.B. at risk of poor health care is also not supported by the record, which indicates that the child has had appropriate medical care under her grandmothers care. As for the grandmothers age, there is nothing in the record that indicates her health prevents her from adequately caring for N.B. and her other grandchild who lives with her. To the contrary, the DCFS reports show that N.B. has been flourishing under her grandmothers stable, nurturing household.
While one can sympathize with appellants wish to receive another opportunity to parent her children, at the permanent planning stage of proceedings, after reunification services have been terminated, the focus shifts from the parent to the childs interest in permanency and stability. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195-1196.) Absent a showing that one of the four exceptions to termination of parental rights applies, the juvenile court is required to terminate parental rights and order the child placed for adoption, pursuant to section 366.26, subdivision (c)(1). The first exception set forth in subdivision (c)(1)(A) clearly does not apply, as appellant admittedly did not maintain regular contact with her children. The second exception set forth in subdivision (c)(1)(B) clearly does not apply, because at the time of the March 2003 hearing N.B. was not a 12-year-old child who objected to the termination of her mothers parental rights. The third and fourth exceptions set forth in subdivision (c)(1)(C) and (D) regarding adoptability also clearly do not apply, since N.B.s grandmother wants and apparently is able to adopt her.
DISPOSITION
The order denying appellants section 388 petition and terminating her parental rights is affirmed.
We concur: EPSTEIN, Acting P.J. & CURRY, J.