Opinion
F087762
08-07-2024
In re I.P. et al., Persons Coming Under the Juvenile Court Law. v. TANYA R., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Nicholas J. Mazanec, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County Nos. JD131226-01, JD143857-00. Christie Canales Norris, Judge.
Nicholas J. Mazanec, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
THE COURT [*]
In this juvenile dependency case, Tanya R. (mother) appeals from the juvenile court's order summarily denying her Welfare and Institutions Code section 388 petition requesting the court to vacate its previous order terminating reunification services and order family maintenance services and the juvenile court's order terminating her parental rights pursuant to section 366.26 as to her two minor children, I.P. and A.P. After reviewing the record, mother's court-appointed counsel informed this court he could find no arguable issues to raise on mother's behalf. This court granted mother leave to personally file a letter brief setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.) Mother filed a letter brief but failed to make such a showing. (Ibid.) Accordingly, we dismiss the appeal.
All further undesignated statutory references are to the Welfare and Institutions Code.
I.P.'s name is referred to as I.R. at places in the record. On February 23, 2024, the court ordered the records be amended to reflect his true name-I.P.
FACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2022, the Kern County Department of Human Services (department) filed juvenile dependency petitions on behalf of then 11-year-old I.P., and then five-year-old A.P. alleging they came within the court's jurisdiction pursuant to section 300, subdivisions (a) and (b) due to mother's ongoing alcohol abuse which led to physical abuse and endangerment of the children. Specific allegations included that, while intoxicated, mother slapped A.P., knocking his tooth out, and when I.P. and the children's older sibling, Andrew, attempted to intervene, mother strangled Andrew and kicked and slapped I.P. The petition further alleged mother had previously driven while intoxicated with the children in the vehicle. A petition was also filed on behalf of Andrew, but he is not a subject of this appeal.
Due to the physical abuse allegations, mother was arrested and charged with child endangerment. She promptly pled no contest to three counts of misdemeanor willful cruelty to a child (Pen. Code, § 273a, subd. (b)). She was granted probation for four years and served with a criminal protection order naming the children. The children were placed in protective custody and eventually placed together in the home of a NonRelative Extended Family Member (NREFM).
The juvenile court ordered the children detained from mother on September 30, 2022. Mother waived her rights to a jurisdiction hearing, and the court found the children came within the court's jurisdiction under section 300, subdivisions (a) and (b) on November 15, 2022. The matter was continued for disposition.
At the disposition hearing on February 8, 2023, the juvenile court adjudged the children dependents of the court and removed them from mother's custody. Mother and the children's presumed fathers were ordered to receive family reunification services, with mother's case plan consisting of 52 weeks of parenting/ neglect counseling, substance abuse counseling, physical abuse as a perpetrator counseling, conjoint counseling with the children when deemed appropriate, and random drug and alcohol testing.
Throughout the reunification period, Andrew and I.P. consistently refused to visit with mother, stated they did not want to reunify with her, and only visited with her a handful of times. Visits with A.P. were inconsistent as well, with A.P. also often refusing to visit with mother, but he visited with her the most out of the three children. When they did occur, visits were generally observed to be of good quality.
Mother engaged in some services, including domestic violence as a perpetrator classes and counseling, parenting classes, and substance abuse counseling. Mother was unable to maintain prolonged sobriety from alcohol, however. She was inconsistent with random alcohol testing, and in May 2023, she flipped her car while intoxicated and was arrested for driving under the influence of alcohol. In June 2023, she attended a visit with all three children while intoxicated, which led Andrew and I.P. to reinforce they did not want to visit with her.
At the 12-month status review hearing conducted on November 15, 2023, the juvenile court terminated mother's reunification services and set a section 366.26 hearing as to I.P. and A.P. As to Andrew, the court ordered another planned permanent living arrangement.
On March 7, 2024, mother filed section 388 petitions on behalf of each child requesting the court vacate the order terminating her reunification services and order the children be returned to her on family maintenance services. Mother alleged she had been in a residential program for substance abuse, anger management, relapse prevention and "much more" since February 20, 2024. She further alleged she was attending multiple AA meetings, testing negative, and fully engaging in treatment. She alleged the request was in the best interests of the children because she was "now stable and dedicated to her sobriety and mental health." She further alleged, "Children achieve better successful outcomes when a safe return to the parent can occur."
The court set a hearing to coincide with the section 366.26 hearing for determining whether it should conduct an evidentiary hearing on mother's section 388 petitions.
The department's section 366.26 report dated March 1, 2024, recommended the juvenile court terminate parental rights and order adoption as I.P.'s and A.P.'s permanent plan. The report indicated the NREFM with whom the children were placed was committed to adopting I.P. and A.P.
The report further indicated mother had 144 opportunities to visit the children and visited A.P. a total of 30 times, and I.P. a total of four times. It was consistently reported the children did not want to visit with mother because they were scared of her. In addition, mother arrived late to visits that occurred and failed to show for others. The visits that occurred were generally good; the children appeared comfortable, and the family played games, watched movies, and had appropriate conversations.
I.P. and A.P. both reported they wanted to be adopted and appeared "joyful" at the prospect. They both wanted to live with their care provider, who they referred to as "Nana" and Andrew, who also lived in the home. They both reported being safe and happy in the home.
At the hearing conducted on March 14, 2024, the juvenile court first addressed mother's section 388 petitions. The court found that mother had not made a prima facie showing that circumstances were changed, as opposed to "changing," nor that the request was in the children's best interests, and denied mother an evidentiary hearing on petitions.
As to the section 366.26 hearing, the department and minors' counsel submitted on the recommendations, and mother objected with no further evidence or authority. The juvenile court found mother had not maintained regular and consistent visitation with the children, and further stated "based on the minors' statements and the lack of visitation, I do believe the evidence shows that the benefits of adoption outweigh any detriment, and I do believe the detriment would be minimal at this time and will follow the recommendations in the report." The juvenile court found the children were likely to be adopted and ordered parental rights terminated and adoption as the children's permanent plan.
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.)
In mother's letter brief she raises three issues: (1) that the juvenile court erred by finding her circumstances were changing, but not changed; (2) that the juvenile court erred by finding there was not a substantial, positive, emotional attachment between her and her children; and (3) that the court should take into consideration her prior relationship with the children. On this record, we conclude mother failed to make a good cause showing that an arguable issue of reversible error exists.
Mother also attaches proof of completion of residential treatment, several negative alcohol tests, and screen shots of text messages purported to be with I.P., which we will not consider. (See In re Zeth S. (2003) 31 Cal.4th 396, 400 [appellate courts must not receive and consider postjudgment evidence never before the juvenile court to reverse the judgment absent rare and compelling circumstances].)
Mother's first contention-that the court erred by determining her circumstances were changing, but not changed-is relevant as to whether the court erred in denying an evidentiary hearing on mother's section 388 petition. A parent petitioning the court to modify a prior dependency order pursuant to section 388 must show the existence of changed circumstances or new evidence justifying the proposed change and that the proposed change is in the best interests of the child. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In order to trigger the right to an evidentiary hearing, a parent need only make a prima facie showing of both of these elements. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) We review the juvenile court's summary denial of mother's section 388 petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)
Mother's first contention does not raise an arguable issue of reversible error because obtaining a section 388 petition hearing requires a showing of both changed circumstances and that the request is in the best interests of the children. In only arguing the court erred by not finding changed circumstances, mother ignores that she was also required to show the request was in the best interests of the children, and thus has not raised an arguable issue that the court committed reversible error by denying her an evidentiary hearing on her section 388 petition.
Mother's second contention-the juvenile court erred by finding there was not a substantial, positive, emotional attachment between her and her children-is relevant to whether the court erred in determining the beneficial parent-child relationship exception applied. A parent seeking to establish the beneficial parent-child relationship exception applies has the burden to prove by a preponderance of the evidence three elements to justify the application of the beneficial parent-child relationship exception: (1) "regular visitation and contact with the child, taking into account the extent of visitation permitted"; (2) "that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship"; and (3) "that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (In re Caden C. (2021) 11 Cal.5th 614, 632-633, 636-637 (Caden C.).) The first two elements are reviewed for substantial evidence and the third for abuse of discretion. (Id. at pp. 639-641.)
Similar to her first contention, mother ignores that to show the beneficial-parent child relationship exception applies, she was not only required to show a substantial, positive, emotional attachment existed, but that she participated in regular and consistent visitation. While she appears to concede she did not regularly visit with I.P., she asserts there were "continuous visits" with A.P. The record indicates she only visited with A.P. 30 out of 144 possible visits, however, and mother has not shown evidence on the record compelling the juvenile court to find regular and consistent visitation as a matter of law (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 ["where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law"]). Accordingly, mother has not made a good cause showing that an arguable claim of reversible error as to the application of the beneficial parent-child relationship exception to termination of parental rights.
Mother's third contention-that the court should take into consideration her prior relationship with the children-does not raise an arguable issue either. We must reject mother's argument to the extent she is asking us to consider evidence that was not before the juvenile court as well as to the extent that she is asking us to reweigh the evidence that was before the juvenile court in deciding any of the issues before it at the March 14, 2024 hearing.
For these reasons, we conclude mother has not made a good cause showing that an arguable issue of reversible error exists. Finally, although we are not required to do so, we have reviewed the record as it relates to the March 14, 2024 hearing and have found no arguable issues. Accordingly, we dismiss the appeal.
DISPOSITION
The appeal is dismissed.
[*] Before Levy, Acting P. J., Snauffer, J. and DeSantos, J.