Opinion
F085728
09-18-2023
In re M.B. et al., Persons Coming Under the Juvenile Court Law. v. M.B. et al., Defendants and Appellants. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Michelle Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant, M.B. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant, S.M. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County Nos. JD141697-00, JD141698-00 &JD142413-00. Christie Canales Norris, Judge.
Michelle Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant, M.B.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant, S.M.
No appearance for Plaintiff and Respondent.
OPINION
THE COURT [*]
M.B. (father) and S.M. (mother) appeal from the juvenile court's January 26, 2023 order terminating their parental rights (Welf. &Inst. Code, § 366.26) to their three children, now eight-year-old son, Mi.B., nearly four-year-old daughter, Me.B., and two-year-old son, Ma.B. After reviewing the juvenile court record, father's and mother's court-appointed attorneys informed this court they could find no arguable issues to raise on behalf of father and mother. We granted father and mother leave to personally file letters setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.) While they each filed a letter, they failed to make such a showing. Consequently, we dismiss the appeal.
Undesignated statutory references are to the Welfare and Institutions Code.
In his notice of appeal, father states he is also appealing the August 30, 2022 order sustaining jurisdiction and September 29, 2022 order denying him reunification services. As we explain further below, these orders are not reviewable in this appeal but rather were reviewable through the filing of a petition for extraordinary writ since they were made in conjunction with the order setting a section 366.26 hearing. (§ 366.26, subd. (l)(1) & (2).)
FACTUAL AND PROCEDURAL BACKGROUND
In December 2020, the Kern County Department of Human Services (department) filed petitions on behalf of the two older children under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (f) (caused another child's death through abuse or neglect), based on the death of their three-month-old brother, Maj.B., which allegedly resulted from father's physical abuse and mother's failure to protect. The petition alleged Maj.B. died after father tossed him in the air and slapped him because he was crying, and that on previous occasions, father hit Maj.B. on the face or head because he was crying. The petition further alleged mother was aware father had previously hit Maj.B. yet continued to leave him in father's care.
The two older children were detained from their parents. Twice-weekly supervised visits were ordered for mother and father. The children were placed with their paternal aunt and uncle.
The parents objected to the children's placement with paternal aunt throughout the case and repeatedly requested their removal, claiming paternal aunt and uncle were not providing appropriate care for the children. According to the department, the parents wanted the children removed because paternal aunt told the department and law enforcement that she believed the parents were responsible for Maj.B.'s death.
The jurisdiction/disposition hearing, which originally was set for January 21, 2021, was continued multiple times for various reasons, including waiting for an autopsy report and changes in the parents' attorneys.
On April 13, 2021, the juvenile court suspended visits between the children and parents after finding visits were emotionally and physically detrimental to the children as the parents had a "major issue" with the children being with paternal aunt that spilled over into visits. A court appointed special advocate (CASA) was appointed for the children.
After Ma.B.'s birth in August 2021, the department filed a petition on his behalf which alleged he came within the provisions of section 300, subdivisions (b) and (f) based on mother's failure to protect Maj.B. from father's abuse. At the initial detention hearing, the juvenile court declared father to be Ma.B.'s biological father. Ma.B. was detained from his parents and placed with his siblings in the home of paternal aunt and uncle.
The parents' visits with the children were reinstated on October 18, 2021. Visits with the two younger children were to occur weekly for one hour supervised by the department, while parents were ordered weekly half-hour virtual visits with Mi.B., who was given discretion to attend in-person visits with his siblings. The juvenile court also denied the parents' request to place the children with maternal grandmother. The juvenile court subsequently appointed a CASA for Ma.B.
Ma.B's petition was amended in November 2021 to: (1) add an allegation under section 300, subdivision (a) that mother and father physically abused Maj.B. and his siblings, and Maj.B.'s death was caused by physical abuse, with Maj.B. having injuries to his head, including bruises, subdural bleeding in his brain, and cerebral swelling; and (2) amend the section 300, subdivision (b) allegation to assert Ma.B. was at risk of harm because mother and father engaged in domestic violence in front of Ma.B.'s siblings.
The older children's petitions also were amended as follows: (1) the section 300, subdivision (a) and (b) allegations were amended to make the same assertions as Ma.B.'s amended petition; and (2) a section 300, subdivision (c) (serious emotional damage) allegation was added to Mi.B.'s petition which asserted Mi.B. was suffering severe anxiety, depression, or withdrawal, as well as untoward aggressive behavior toward himself and others, due to the parents' conduct.
Visits between Mi.B. and his parents were suspended again on March 24, 2022. In-person visits had resumed in January 2022, and since then, Mi.B. reportedly was exhibiting significant behavioral outbursts and in one incident, he wrapped a cord around his neck while at school and said he wanted to kill himself. On April 12, 2022, the juvenile court ordered continued suspension of visits with Mi.B., finding they were detrimental to his emotional well-being. The court stated it would revisit the issue and ordered the department to provide an update from Mi.B.'s therapist. On May 13, 2022, the juvenile court increased visits with the two younger children to weekly two-hour supervised visits, which could be increased to twice weekly for two hours but visits with Mi.B. remained suspended.
The Jurisdiction and Disposition Hearings
A contested jurisdiction hearing was held on August 30, 2022, while an uncontested disposition hearing was held on September 29, 2022. The department reported that in July 2022, father and mother were arrested and charged with several felonies relating to Maj.B.'s death, including murder. The criminal court issued criminal protective orders prohibiting the parents from having contact with the two older children. The parents appeared in custody for the jurisdiction and disposition hearings.
On jurisdiction, the department recommended the juvenile court find the allegations of the first amended petitions true. The juvenile court reviewed the department's reports. Testimony was received from a forensic pathologist the department retained, while mother called the forensic pathologist who performed Maj.B.'s autopsy. The social worker also testified. After closing arguments, the juvenile court found the allegations of the amended petitions true, specifically finding the parents physically abused the children and engaged in cruelty toward them, Mi.B. lived in a home where he constantly feared for the safety of himself and his younger siblings, the parents engaged in domestic violence in front of the children, and Maj.B.'s death was a homicide.
For the dispositional hearing, the department recommended the juvenile court adjudge the children dependents and remove them from parental custody. The department further recommended that reunification services not be provided to mother as to all the children and to father as to the two older children under section 361.5, subdivision (b)(4). Since father had not been elevated to a status beyond Ma.B.'s biological father, the department recommended reunification services not be provided to father as to Ma.B. because it would not benefit the child. At the hearing, the department submitted on its reports and recommendations, as did the children's counsel. The parents objected but had no evidence to present.
The juvenile court adjudged the children dependents, removed them from parental custody, found the department made reasonable efforts and provided reasonable services to prevent or eliminate the need for the children's removal, and denied the parents reunification services as recommended by the department. The juvenile court ordered that no visits or contact occur between the parents and the two older children due to the criminal protective orders, but ordered monthly one-hour supervised visits with the youngest child while the parents were incarcerated. The juvenile court set a section 366.26 hearing for January 26, 2023.
Father and mother each filed a notice of intent to file a petition for extraordinary writ. Their attorneys advised the court they would not file a writ petition, and neither father nor mother timely filed a writ petition despite being given the opportunity to do so. Accordingly, we dismissed the actions as abandoned. (S.M. v. Superior Court (Nov. 18, 2022, F085061); M.B. v. Superior Court (Dec. 5, 2022, F085055).)
The Section 366.26 Hearing
On January 20, 2023, maternal grandparents filed section 388 petitions seeking placement of the children, asserting it would be in the children's best interest to be placed with them because they had a relationship with the two older children and the children would receive love and attention. The juvenile court summarily denied the petitions because they did not state new evidence or a change of circumstances. The juvenile court noted, among other things, a new placement was not needed and would not be in the children's best interests, maternal grandparents' prior resource family approval application had been denied, and the court previously denied a prior request for placement. Maternal grandparents then filed a JV-285 relative information form regarding Mi.B., stating they wanted to telephone him, write to him, take him to therapy, school and family gatherings, and have him live with them.
In its report for the section 366.26 hearing, the department recommended the juvenile court terminate parental rights and order the children freed for adoption. The department asserted the children were generally adoptable based on their ages and their lack of any major developmental, behavioral, or medical concerns. Mi.B., who had been receiving mental health services since March 2021, was discharged from those services in December 2022. Mi.B. was found eligible for primary speech and language services to address stuttering. Other than that, the children did not have special needs.
The children were living together with paternal aunt and uncle, who were committed to a permanent plan of adoption. Mi.B. said he felt safe with his paternal aunt and uncle and "felt good" about being adopted by them. They loved him and he loved them. The other children were too young to make a statement about adoption. The department stated it would not be difficult to secure another pre-adoptive home should adoption with the current caregivers be unsuccessful.
The parents were incarcerated at Lerdo Detention Facility. Mother participated in 67 of 82 scheduled visits with the two older children, while father participated in 67 of 76 scheduled visits, and mother and father both participated in 31 out of 33 available visits with the youngest child.
The quality of interaction between the two older children and their parents was described as "limited." While mother and father were affectionate with them, the parents demonstrated inappropriate parenting skills, such as interrogating Mi.B. about his caregiver and checking the children for injuries or scars and then repeatedly asking Mi.B. how they may have been sustained. In addition, mother picked scabs from Me.B.'s body, which father did not intervene to stop, and father became agitated if Me.B. began to cry. Mother's and father's parenting skills with Ma.B., however, were noted to be adequate; they were affectionate and loving with him, and mother tended to his physical needs while father talked and played with him.
The department assessed mother's and father's relationship with the children as "less than minimal." While the two older children had a relationship with mother and father, they had been out of their parents' care for two years and during that time, contact with the parents had been limited. Since the youngest child had never lived with mother or father, they did not have a significant relationship with him. As a result, the children did not look to mother and father as their primary care providers; rather, the children looked to the caregivers to meet their needs. Accordingly, the department believed there would be minimal detriment to the children should parental rights be terminated, and any detriment would be strongly outweighed by the benefits and permanency of adoption.
The children's CASA agreed with the recommendations to terminate parental rights and order a permanent plan of adoption. The CASA reported that paternal aunt appeared to be doing a great job with the children and the children were doing well in the home, which the CASA believed was the best place for them.
The parents were present in custody at the January 26, 2023 permanency planning hearing. The juvenile court received into evidence the section 366.26 report, the CASA report, and the relative information form maternal grandparents filed. The department submitted on its report and recommendations. Mother's counsel objected to the department's recommendations, but had no evidence to present, and requested an order for three make-up visits with Ma.B., as well as an order for maternal grandparent visitation. Father's counsel also objected to the department's recommendations but had no affirmative evidence to present. Minors' counsel submitted on the recommendation, asserting that it made the other requests moot.
Although neither parent raised the beneficial parent-child relationship exception to termination of parental rights, the juvenile court nevertheless addressed it. The juvenile court found that while the parents had regular visitation and contact with the children, there was no evidence the children had a substantial, positive, emotional attachment to their parents, and the benefits of adoption outweighed any detriment in severing the parent-child relationship. For these reasons, the juvenile court stated it would follow the department's recommendations. After making these findings, the juvenile court excused the parents and maternal grandparents from the courtroom due to their disruptive behavior. The court then found there was clear and convincing evidence the children were likely to be adopted and terminated parental rights.
DISCUSSION
An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant's burden to raise claims of reversible error or other defect and present argument and authority on each point made. If the appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
At a termination hearing, the juvenile court's focus is on whether it is likely the children will be adopted; if so, the court is required to order termination of parental rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, the juvenile court must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the children under any of the circumstances listed in section 366.26, subdivision (c)(1)(B). Since the juvenile court here found the children were likely to be adopted and the beneficial parent-child relationship exception to termination of parental rights did not apply, it had no choice but to terminate parental rights and select adoption as the children's permanent plan.
Neither parent contends the juvenile court erred in finding the children adoptable, and only mother raises an issue concerning the applicability of the parent-child relationship exception. Mother asserts parental rights should not have been terminated because she completed everything the department asked of her, which taught her to conduct herself differently as a parent, and it would be detrimental to the children to sever a relationship with a parent who is willing and capable of loving them.
Mother and father were offered recommended case plans, which were voluntary. By the disposition hearing, mother had completed all the requested case plan components, which included a 52-week child neglect and endangerment program, domestic violence as a victim, and a 52-week physical abuse as a perpetrator program. The department noted, however, that despite finishing her classes, mother continued to protect father and remained in a relationship with him, which indicated she was unwilling and unable to protect the children.
The beneficial parent-child relationship exception to termination of parental rights applies if termination would be detrimental to the child because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) To establish this exception, the parent has the burden of proving three elements by a preponderance of the evidence: (1) regular visitation and contact with the child, and (2) the child has a substantial, positive, emotional attachment to the parent that implies the child would benefit from continuing the relationship, such that (3) terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of an adoptive home. (In re Caden C. (2021) 11 Cal.5th 614, 636-637.)
We review the first two elements for substantial evidence, while the third is reviewed for abuse of discretion. (In re Caden C., supra, 11 Cal.5th at pp. 639-641.) But when a juvenile court determines a parent failed to meet his or her burden of proving the exception, our review is limited to determining whether the evidence compels a finding in the parent's favor as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)
Here, the juvenile court found while father and mother maintained regular visitation and contact with the children, there was insufficient evidence the children had a substantial, positive, emotional attachment to them. Although mother's progress in services may be relevant to her ability to interact with the children in a positive way, and therefore help to support a finding the children would benefit from continuing their relationship with her, that is not the only factor the juvenile court should consider. (In re Caden C., supra, 11 Cal.5th at p. 632 [the child's relationship with the parent "may be shaped by a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs' "].)
To make a good cause showing an arguable issue exists on this record, mother would have to point to evidence showing that, as a matter of law, the children had a substantial, positive, emotional attachment to her and any detriment the children might suffer from severing that attachment outweighed the benefits of adoption. That mother completed classes and learned parenting skills does not meet that burden, as there is significant evidence the children did not have a substantial, positive, emotional attachment to her, as shown by the negative effect visits with the parents, who acted inappropriately during them, had on Mi.B., and that the children had been out of the parents' care for several years, with the youngest having never lived with them. Moreover, as the juvenile court found, given the trauma the older children endured in the parents' care, any detriment to the severance of parental rights would be outweighed by the benefits of adoption. Accordingly, mother has not made a good cause showing an arguable issue exists with respect to the beneficial parent-child relationship exception to termination of parental rights.
The remaining issues father and mother raise are not cognizable in this appeal. Father and mother both contend the jurisdictional findings are not supported by the evidence. In addition, father contends: (1) paternal aunt made statements that prove she is not neutral toward the parents; (2) there was a conflict of interest, as paternal aunt attended high school with the police detectives and social worker; (3) the judge who presided over the earlier hearings and requested the autopsy report was replaced by another judge who presided over the jurisdiction, disposition, and section 366.26 hearings; (4) the department did not investigate the parents' complaints that the children were coming to visits with marks, bruises, and burn marks, or the child's statement that he no longer wanted to be in paternal aunt's care; (5) the juvenile court wrongfully denied visitation and the department did not follow the court's order when visits were reinstated; and (6) reasonable services were not provided because the relative placement interfered with the parents' reunification.
Once a juvenile court sets a section 366.26 hearing and gives proper notice of the writ remedy, it is incumbent upon a party who wants to challenge the juvenile court's setting order to file a timely petition for extraordinary writ review that substantively addresses the specific issues to be challenged and supports the challenge by an adequate record. (§ 366.26, subd. (l)(1)(A) &(B).) Failure to do any of these things precludes subsequent review by appeal of the juvenile court's findings and orders. (§ 366.26, subd. (l)(2).) This preclusion applies to all orders made at the hearing at which the order setting the section 366.26 hearing is made, regardless of their nature. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1023.) Moreover, generally, "a party who does not raise an argument below forfeits the argument on appeal." (In re Abram L. (2013) 219 Cal.App.4th 452, 462.)
The jurisdictional findings, which the juvenile court made at the August 30, 2022 jurisdiction hearing, were appealable when the disposition hearing was concluded and the section 366.26 hearing set. (In re Sheila B. (1993) 19 Cal.App.4th 187, 196.) Under section 366.26, subdivision (l), the parents were required to raise any jurisdictional issues by extraordinary writ petition from the disposition hearing, which neither parents nor their trial attorneys did. Consequently, they cannot now challenge the juvenile court's exercise of its jurisdiction on appeal from the January 26, 2023 order terminating their parental rights. Similarly, father has forfeited the other issues he raises because they were not raised in either a petition for extraordinary writ from the disposition hearing or during the section 366.26 hearing.
In sum, father and mother have failed to identify any arguable issues that merit briefing. Accordingly, we dismiss their appeals.
DISPOSITION
The appeals are dismissed.
[*] Before Franson, Acting P. J., Snauffer, J. and DeSantos, J.