Opinion
B309875
07-23-2021
In re R.R., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.C., Defendant and Appellant.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. No. 18CCJP06418A Brett Bianco, Judge.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
OHTA, J. [*]
K.C.'s daughter, Raelynn R., is a dependent of the juvenile court. After the court terminated reunification services, K.C. filed a petition under Welfare and Institutions Code section 388 seeking to return Raelynn to her custody, grant further reunification services, or order legal guardianship rather than adoption. Due to the Covid-19 pandemic, the juvenile court continued the hearing on the petition several times before ultimately denying it. On appeal, K.C. contends the court violated her due process rights by denying the petition based on the passage of time between when she filed the petition and the hearing to consider it. The record does not show the trial court considered the passage of time as a factor, let alone denied the petition on that basis. Accordingly, we affirm.
All future section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
We take some of the facts from our prior nonpublished opinion in this case, In re R.R. (June 25, 2020, B302842) [nonpub. opn.].
K.C. (Mother) gave birth to Raelynn while incarcerated. Raelynn's father (Father) was homeless at the time and could not be located. Mother consented to the Los Angeles County Department of Children and Family Services (DCFS) detaining Raelynn. At Mother's request, DCFS placed the child with the paternal grandmother (Paternal Grandmother).
In October 2018, about a week after Raelynn's birth, DCFS filed a petition asserting Raelynn is a person described by section 300, subdivisions (b)(1) and (j). Specifically, the petition alleged Mother has a history of substance abuse, mental and emotional problems, and domestic violence. It further alleged Father has a history of substance abuse. The juvenile court sustained the petition, removed Raelynn from her parents' custody, ordered reunification services, and ordered the child be suitably placed with Paternal Grandmother.
At the six-month review hearing, the court found Mother and Father had not made sufficient progress toward addressing the causes necessitating placement. The court terminated reunification services and set a section 366.26 selection and implementation hearing.
On January 31, 2020, Mother filed a section 388 petition, requesting the court return Raelynn to her custody, grant further reunification services, or order legal guardianship rather than adoption. In support of the petition, Mother submitted evidence showing she had participated in mental health services, completed a residential drug program, enrolled in an aftercare program, regularly attended Narcotics Anonymous, and consistently tested negative for drugs.
Mother previously filed a section 388 petition seeking the same relief. The juvenile court denied the petition without a hearing, and Mother appealed. We dismissed her appeal as moot. (In re R.R. (June 25, 2020, B302842) [nonpub. opn.].)
DCFS recommended the court deny Mother's petition because she had not demonstrated a lasting change in circumstances. Among other things, DCFS noted that Mother had not obtained suitable housing for Raelynn, completed domestic violence counseling, or participated in therapy. DCFS also reported that Raelynn had a strong bond with Paternal Grandmother. In contrast, Raelynn had not formed a secure emotional attachment to Mother, who had never occupied a parental role in the child's life.
The juvenile court set the petition for a hearing on the same date as the section 366.26 selection and implementation hearing. In late March 2020, the court ordered the hearings continued to May 1, 2020, due to the COVID-19 pandemic. The court subsequently continued the hearings to January 7, 2021, again because of the pandemic. Mother did not appeal the orders, file a petition for an extraordinary writ, or petition the juvenile court to advance the hearings.
Over the course of the continuance, Mother moved to a sober living facility where Raelynn would be allowed to live with her. She continued to participate in a substance abuse program, completed a parenting program, attended domestic violence classes, received psychiatric services and individual counseling, abstained from drug use, and maintained employment.
Mother also continued to have weekly monitored visits with Raelynn. Father accompanied Mother to one of the visits. According to Paternal Grandmother, Mother would allow Father to sleep in her car when he did not have anywhere else to go.
The court considered the section 388 petition at a hearing on January 7, 2021, the same date it held the section 366.26 hearing. Mother urged the court to grant the petition because she had turned her life around, consistently visited Raelynn, and, due to the pandemic, had participated in more programs than was typical of a parent in her position. DCFS and Raelynn's counsel urged the court to deny the petition because Mother never had custody of Raelynn or progressed to unmonitored visits, Mother continued to have contact with Father, and Raelynn needed permanency.
The juvenile court found Mother had demonstrated changed circumstances related to her sobriety. The court noted that Mother had “done a lot, ” including completing programs, maintaining employment, and remaining sober.
Nonetheless, the court denied the petition on the basis that granting it would not be in Raelynn's best interests. The court explained that Raelynn could not safely be returned to Mother's custody given her long history of drug abuse and continued contact with Father. Further, Raelynn had lived with Paternal Grandmother for nearly her entire life, and the child needed permanency and stability.
After denying the section 388 petition, the court terminated Mother's and Father's parental rights, selected a permanent plan of adoption, and designated Paternal Grandmother as the prospective adoptive parent.
Mother appealed.
DISCUSSION
Mother's sole contention on appeal is that the juvenile court improperly denied her section 388 petition based on the passage of time between when she filed the petition and the hearing to consider it. According to Mother, this violated her due process rights because the passage of time was a factor beyond her control. We disagree.
Under section 388, a parent of a dependent child may petition the juvenile court to change, modify, or set aside its prior orders. (§ 388, subd. (a)(1).) To prevail on a section 388 petition, the petitioner must establish two things: (1) the existence of new evidence or changed circumstances justifying a change in the dependency court's prior orders, and (2) the proposed change would promote the best interests of the child. (In re A.A. (2012) 203 Cal.App.4th 597, 611.) Section 388 is recognized to be a form of “ ‘escape mechanism' ” allowing a parent to show a “complete... reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.) As such, section 388 provides the dependency court a means “to address a legitimate change in circumstances” and affords a parent a last opportunity for continued reunification services prior to the final resolution of custody status. (In re Marilyn H., supra, 5 Cal.4th at p. 309.)
Contrary to Mother's insistence, there is nothing in the record indicating the juvenile court denied her petition due to the passage of time, or even considered the passage of time as a factor when reaching its decision. The court provided three reasons for its decision: (1) Mother has a long history of substance abuse; (2) Mother continued to have contact with Father; and (3) Raelynn had lived with Paternal Grandmother most of her life and needed stability and permanency. None of these factors was affected by the delay in hearing the petition. Moreover, neither DCFS nor Raelynn's counsel mentioned the passage of time as a factor weighing against granting the petition, or otherwise urged the court to deny the petition on that basis. In fact, the only party to refer to the passage of time was Mother, who pointed out that the continuance allowed her to participate in more programs than was typical of a parent in her position.
Mother suggests the passage of time attenuated her bond with Raelynn, and strengthened the child's bond with Paternal Grandmother, making it more difficult for her to show that granting the petition would be in Raelynn's best interests. While that may be the case, if Mother was concerned that a delay in hearing her petition would make it less likely the court would grant it, she should have appealed the continuation orders, sought writ relief from this court, or petitioned the juvenile court to advance the hearing. Mother declined to do so, quite possibly because she believed the additional time would ultimately be to her benefit.
Mother's reliance on In re Elizabeth R. (1995) 35 Cal.App.4th 1774 (Elizabeth R.), and In re D.N. (2020) 56 Cal.App.5th 741 (D.N.), is misplaced. In Elizabeth R., the mother was hospitalized for mental health issues during most of the reunification period but had otherwise substantially complied with the reunification plan. (Elizabeth R., supra, at p. 1787.) Atthe 18-month review hearing, the court found the mother had made substantial progress, but she was not yet ready to regain custody of her children given she had only recently been released from the hospital. The court then terminated reunification services under the belief that it lacked discretion to continue them any longer. (Id. at p. 1789.) The Court of Appeal reversed, holding the juvenile court could have considered extending reunification services under section 352, which gives courts discretion to continue a hearing beyond the time limit within which it is required to be held. (Id. at pp. 1798-1799.)
In D.N., the juvenile court terminated reunification services because the father was unable to obtain housing, despite sincere efforts to do so. (D.N., supra, 56 Cal.App.5th at p. 755.) The Court of Appeal reversed, holding the lack of affordable housing constituted an external force over which the father had no control, which warranted an extension of reunification services beyond the statutory limit. (Id. at p. 764.)
Mother insists the pandemic constituted an exigent circumstance that resulted in her estrangement from Raelynn, similar to the hospitalization in Elizabeth R. and lack of affordable housing in D.N. We disagree. The exigent circumstances in Elizabeth R. and D.N. made it impossible for the parents in those cases to reunify with their children within the statutory timelines. Here, Mother had already failed to reunify before the start of the pandemic. Moreover, contrary to Mother's claims, the pandemic did not cause her estrangement from Raelyn. Rather, Mother continued her visitations with Raelyn for the vast majority of time that the hearing was continued, which afforded her the opportunity to strengthen her bond with the child. This case is not at all like Elizabeth R. or D.N.
Mother alternatively argues in her reply brief that the juvenile court violated section 352, local rules, and her due process rights by waiting more than a year to conduct the hearing on her petition. Mother has forfeited these issues twice: first by failing to raise them in the juvenile court, and second, by failing to raise them in her opening brief on appeal. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 [“A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court.”]; Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 592[“reply arguments are forfeited as tardy, because appellants must give the other side fair notice and an opportunity to respond”].) Accordingly, we decline to consider the arguments.
Mother made similar arguments in her original opening brief on appeal. However, after DCFS filed a motion to dismiss on the basis that Mother failed to timely appeal the continuation orders, she filed a revised opening brief, which removed such arguments. Mother also urged this court not to construe her appeal as a challenge to the continuation orders.
DISPOSITION
The orders are affirmed.
We Concur: GRIMES, Acting P. J., WILEY, J.
[*]Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.