Opinion
B331369
07-30-2024
In re NADIA A., a Person Coming Under the Juvenile Court Law. v. CHRISTINA R. et al., Defendants and Appellants LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant Christina R. Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant Miguel A. Dawyn R. Harrison, County Counsel, and Kim Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County No. 21LJJP00250A, Stephanie M. Davis, Judge.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant Christina R.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant Miguel A.
Dawyn R. Harrison, County Counsel, and Kim Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
On August 21, 2023, the juvenile court denied the Welfare and Institutions Code section 388 petition filed by appellant Christina R. (mother) and terminated the parental rights of mother and appellant Miguel A. (father) to Nadia A. (minor, born Aug. 2020). Appealing these orders, the parents contend that the court abused its discretion by (1) denying the section 388 petition without a hearing; and (2) denying mother's request for a contested section 366.26 hearing on the application of the parental-benefit exception to adoption.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We refer to mother and father, collectively, as the parents.
Father does not raise any independent argument that the juvenile court erred in terminating his parental rights, arguably warranting dismissal of his appeal. (See In re K.C. (2011) 52 Cal.4th 231, 236 ["Not every party has standing to appeal every appealable order. Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal. [Citations.] An aggrieved person, for this purpose, is one whose rights or interests are injuriously affected by the decision in an immediate and substantial way, and not as a nominal or remote consequence of the decision. [Citations.] These rules apply with full force to appeals from dependency proceedings. [Citation.]"].) That said, because father joins in all of mother's arguments and, assuming arguendo, that success on mother's appeal could result in the reversal of the order terminating father's parental rights (see Cal. Rules of Court, rule 5.725(f)), we treat all of mother's arguments as if sufficiently and properly raised by both parents.
Finding no abuse of the juvenile court's discretion, we affirm.
BACKGROUND
I. Minor Becomes a Dependent of the Court
In May 2021, the Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition seeking the juvenile court's exercise of jurisdiction over then eight-month-old minor pursuant to section 300, subdivisions (a) (serious physical harm) and (b)(1) (failure to protect). The petition alleged that the parents had a history of engaging in violent physical altercations; father abused methamphetamine, amphetamine, and marijuana; mother abused alcohol and had previously been intoxicated and lost consciousness while caring for minor; and father had mental and emotional problems yet failed to take psychotropic medication as prescribed.
The following month, the juvenile court sustained the petition as pled, declared minor a dependent of the court, and removed her from parental custody. The court ordered DCFS to provide the parents with family reunification services.
II. Family Reunification Period
Upon her detention from the parents, minor was placed in the home of her paternal grandparents. In July 2021, minor was moved to the home of her paternal aunt G.A. (paternal aunt). In advance of the six-month review hearing, DCFS reported that paternal aunt "provide[d] a nurturing and stable home for" minor. Minor appeared happy and comfortable in paternal aunt's care, and paternal aunt was willing to adopt minor if the parents failed to reunify.
Although the parents were participating in court-ordered services, mother continued to use marijuana and father tested positive for amphetamine, methamphetamine, and marijuana in November 2021. The parents visited minor consistently on a monitored basis. On three occasions, however, the parents attended the same visit despite the juvenile court's order-and ongoing reminders from the DCFS social worker and the monitor-not to do so.
At the December 2021 six-month status review hearing, the juvenile court found that the parents had made substantial progress and continued reunifications services. The court ordered that, once mother submitted eight clean drug tests, she was to have unmonitored day visits with minor. This liberalization was conditioned on father not being present at the visits, mother continuing all aspects of her case plan, and DCFS making unannounced calls during the visits.
According to the 12-month status review hearing report, minor continued to live with paternal aunt. Minor appeared to be bonded with paternal aunt, as well as to the parents. Mother had unmonitored visitation with minor. According to paternal aunt, mother was nurturing toward minor and tended to her needs well, including feeding and bathing her during visits. Father visited minor regularly on a monitored basis.
The parents continued to struggle with drug addiction. Mother tested positive for methamphetamine and amphetamine in April 2022. She was discharged from her sober living home for refusing to participate in a recovery plan after she relapsed. Father continued to test positive for drugs.
At the 12-month status review hearing in June 2022, the juvenile court found that mother had made substantial progress but father had not. The court found that both parents had "regularly and consistently contacted and visited" minor. The court continued reunification services and gave DCFS discretion to liberalize visitation, including overnight visits for mother.
For the 18-month status review hearing, DCFS reported that mother was scheduled for unmonitored visits two times per week, but she was inconsistent with her visitation and missed numerous visits. During the visits she did attend, mother often failed to engage with minor and would get frustrated by her tantrums. Minor would seek paternal aunt for attention. Father was also inconsistent with his visitation.
DCFS reported in January 2023 that mother began overnight visits with minor the previous month despite concerns raised by paternal aunt that the parents were living together. Following the first visit, minor told paternal aunt and the DCFS social worker that she had been with "'mama and papa'" in mother's home. Additional overnight visits took place with ongoing concerns about father being present. Mother also missed two on-demand drug tests in January 2023. Father refused to continue participating in programs, stating that he would not do "'any of it anymore, no drug testing, no more classes[,] no more anything.'" Father expressed that minor was happy and being taken care of by paternal aunt, and that minor should not be with either of her parents. Father stated that he "'kn[ew] things that the court or [the social worker] does not know about . . . mother[.]'"
On January 23, 2023, the juvenile court reverted mother's visits back to being monitored.
In March 2023, DCFS reported that mother regularly attended the monitored, twice-weekly visits with minor. During most of the visits, minor would watch videos on mother's phone and mother would occasionally ask a question. The DCFS social worker monitored three visits, during which mother and minor were affectionate with each other. Mother consistently tested negative for drugs. DCFS also verified that mother completed a drug treatment program with aftercare.
III. Termination of Reunification Services
At the status review hearing on March 23, 2023, the juvenile court found that mother's progress toward alleviating or mitigating the causes necessitating minor's removal had been minimal and that father had made no progress. The court found that mother lacked insight and that both parents lacked "understanding and protective capacity ...." The court further explained: "While . . . mother may be maintaining some progress in her substance abuse, she has demonstrated no progress in the area of domestic violence, and that . . . continues to place the child at substantial risk." The court terminated reunification services for both parents.
IV. Permanency Planning Period
Minor remained in paternal aunt's care, who "continued to provide a nurturing and stable home ...." During monthly home visits, DCFS staff observed minor to appear happy and comfortable with paternal aunt. Paternal aunt wanted to coadopt minor with her adult daughter. According to paternal aunt, minor was very attached to her and called her "'Mommy[]'" while referring to mother as "'Titi.'" Minor was in therapy and had frequent nightmares and sleep disturbances.
Mother continued visiting minor twice a week. No concerns were raised with the visits except that mother never brought money to buy something for minor. According to paternal aunt, the parents rarely played with minor.
V. Mother's First Section 388 Petition
On July 19, 2023, mother filed a section 388 petition seeking the return of minor to mother's custody or, in the alternative, the reinstatement of reunification services. Mother asserted that she had "made the choice of choosing her daughter over anyone else." Mother was in school and working, was no longer in a relationship with father or anyone else, and had reenrolled in a domestic violence program.
On July 20, 2023, the juvenile court denied mother's section 388 petition without a hearing on the grounds that it did "not state new evidence or a change of circumstances" and that the proposed change did "not promote the best interest of the child." The court continued the section 366.26 permanency planning hearing and ordered DCFS "to provide a detailed visitation report" including an In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) analysis.
VI. Last Minute Information for the Court (Aug. 10, 2023)
Pursuant to the juvenile court's order, DCFS filed a report regarding minor's visitation and bond with the parents.
Minor, who was approaching three years old, had been detained from the parents since she was about nine months old. After mother was granted overnight visits, minor experienced nightmares and would wake up crying in the middle of the night. Minor did not inquire about the parents between visits and did not have a difficult time saying goodbye to them. No safety concerns were reported during mother's visits with minor, and mother arrived at the visits prepared to keep minor entertained.
DCFS acknowledged that mother and minor "share[d] a positive and nurturing relationship." Minor "appear[ed] emotionally secure and happy in the presence of . . . mother[,]" who "demonstrated attentive and responsible parenting behavior[.]" A social worker observed minor to have "a healthy bond and attachment with" paternal aunt, who was her prospective adoptive parent. That attachment allowed minor "to feel safe, secure, loved and connected emotionally."
DCFS opined that adoption was the appropriate plan for minor; another plan could "derail permanency and stability" and cause detriment to minor.
VII. Mother's Second Section 388 Petition
On August 21, 2023, mother filed another section 388 petition seeking the return of minor or reinstatement of reunification services. As for why the requested order would benefit minor, mother stated that minor was bonded to her and that, throughout the case, mother had "consistent, loving, and meaningful visitation with [minor]." Mother also pointed to DCFS's report that minor was "emotionally secure and happy in" mother's presence. Mother attached a letter confirming her participation in a domestic violence program, as well as pictures of mother with minor.
VIII. Denial of Second Section 388 Petition; Termination of Parental Rights
On August 21, 2023, before proceeding to the section 366.26 permanency planning hearing, the juvenile court denied mother's second section 388 petition without a hearing because it failed to state new evidence or a change of circumstances and because it did not promote minor's best interests.
The juvenile court next entertained argument regarding the termination of parental rights. Father's counsel objected to such an outcome and believed that minor should be returned to mother. Mother's counsel asked the court to set a contested hearing and argued that the parental-benefit exception to adoption applied. Counsel for DCFS and counsel for minor both asked the court to terminate parental rights and objected to a contested hearing.
The juvenile court noted that it was "looking at the totality of this case" and concluded that mother's offer of proof failed to meet the burden under Caden C. and, thus, no basis for a contested hearing existed. The court found that the parents had "failed to take advantage of all visitations offered to them and ha[d] not visited regularly and consistently"; that there was "no evidence that . . . minor ha[d] a substantial, positive emotional attachment to . . . mother or . . . father such that she would benefit from continuing the relationship"; and that there was "no evidence" that minor "would be harmed by losing the relationship with . . . mother or father to an extent outweighed on balance by the security of a new adoptive home, especially when considering the length of time the child ha[d] been . . . in the home of her caregivers."
Finding no applicable exception to adoption, the juvenile court ordered the termination of mother's and father's parental rights.
IX. Appeal
Mother and father each filed a timely notice of appeal.
DISCUSSION
I. Denial of Section 388 Petition
The parents argue that the juvenile court abused its discretion by denying mother's second section 388 petition without a hearing.
A. Applicable law
Under section 388, subdivision (a)(1), a parent may petition the juvenile court to change, modify, or set aside a previous order in dependency proceedings. "To obtain the requested modification, the parent must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child. [Citations.]" (In re Alayah J. (2017) 9 Cal.App.5th 469, 478 (Alayah J.).)
"To obtain an evidentiary hearing on a section 388 petition, a parent must make a prima facie showing that circumstances have changed since the prior court order, and that the proposed change will be in the best interests of the child. [Citations.] To make a prima facie showing under section 388, the allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory. [Citation.] A section 388 petition must be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.]" (Alayah J., supra, 9 Cal.App.5th at p. 478.)
B. Standard of review
We review the summary denial of a section 388 petition without a hearing for an abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079; In re Angel B. (2002) 97 Cal.App.4th 454, 460.) Under this standard, we must affirm "unless the [juvenile] court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. [Citation.]" (In re A.S. (2009) 180 Cal.App.4th 351, 358.)
C. Analysis
The parents contend that mother made a prima facie showing of changed circumstances and that granting the section 388 petition was in minor's best interests. We disagree and find no abuse of the juvenile court's discretion in summarily denying the petition.
The parents argue that mother alleged a significant change of circumstances since the 18-month status review hearing in terms of her progress in resolving issues with domestic violence. They point to mother's reenrollment in a domestic violence program (completing about half of the sessions by the time of the permanency planning hearing) and her claims that she had "'gained the tools for independence[]'" and was no longer in a relationship with father.
While encouraging, mother's efforts evidenced only changing-as opposed to changed-circumstances, which is insufficient to make a prima facie case of a substantial change of circumstances warranting section 388 relief. (See In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 (Ernesto R.) ["To support a section 388 petition, the change in circumstances must be substantial"]; In re Mickel O. (2011) 197 Cal.App.4th 586, 615 ["the [section 388] petitioner must show changed, not changing, circumstances"]; In re C.J.W., supra, 157 Cal.App.4th at p. 1081 ["Although parents were exerting themselves considerably to improve, they did not demonstrate changed circumstances"].)
Furthermore, mother failed to make any showing that returning minor to her custody or permitting further reunification services would promote minor's best interests. The parents focus on the positive reports regarding minor's interactions with mother in the August 10, 2023, last minute information for the court, as well as pictures mother submitted with her section 388 petition "showing [minor] happy and joyful while visiting her mother." But the parents fail to grapple with the juvenile court's obligation to prioritize "the goal of assuring stability and continuity" for the child when determining whether reinstatement of reunification services is in the best interests of the child. (In re Angel B., supra, 97 Cal.App.4th at pp. 463-464; see also In re J.C. (2014) 226 Cal.App.4th 503, 527 ["[A]fter reunification services have terminated, a parent's petition for . . . an order . . . reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability"].)
Considering that minor had spent the majority of her life in the loving and secure care of paternal aunt, with whom minor had "a healthy bond and attachment[,]" further reunification services would serve to disrupt rather than promote the stability and continuity minor had found with her prospective adoptive parent. Mother made "no showing whatsoever of how the best interests of [minor] . . . would be served by depriving [her] of a permanent, stable home in exchange for an uncertain future. [Citations.]" (In re C.J.W., supra, 157 Cal.App.4th at p. 1081; see also Ernesto R., supra, 230 Cal.App.4th at pp. 223-224 [where a child had been in his foster parents' care for the majority of his life, he was bonded to them, and they were committed to adopting him, "[g]ranting a section 388 petition would delay selection of a permanent home and not serve the child's best interests"].)
Urging reversal, the parents rely heavily on In re Aljamie D. (2000) 84 Cal.App.4th 424 (Aljamie D.), where a juvenile court's summary denial of a section 388 petition was reversed. That case, however, is readily distinguishable. Unlike here, the children at issue were older and had not spent the majority of their lives outside the care of their mother. (Aljamie D., supra, 84 Cal.App.4th at pp. 426-428.) And, unlike here, "[t]he children, ages 9 and 11, repeatedly made clear that their first choice was to live with their mother." (Id. at p. 432.) While "not determinative of . . . best interests," Aljamie D. concluded that a "child's testimony that she wants to live with her mother constitutes powerful demonstrative evidence that it would be in her best interest to allow her to do so. [Citation.]" (Ibid.)
In her reply brief, mother also likens this case to In re Hashem H. (1996) 45 Cal.App.4th 1791 (Hashem H.), where the denial of a section 388 petition without a hearing was reversed. In Hashem H., the mother's continuous participation in therapy for more than 18 months was so successful that her therapist recommended the return of her son to her custody, which constituted a prima facie showing of changed circumstances. (Hashem H., supra, 45 Cal.App.4th at p. 1799.) And, unlike here, "there was no contention either at the trial level or on appeal that the proposed change of custody . . . back to the mother was not in the child's best interests." (In re Zachary G. (1999) 77 Cal.App.4th 799, 808.)
The facts that supported reversal in Aljamie D. and Hashem H. are absent here.
II. Contested Section 366.26 Hearing
The parents also argue that the juvenile court violated mother's due process rights by denying her request for a contested hearing on the application of the parental-benefit exception to adoption (§ 366.26, subd. (c)(1)(B)(i)).
A. Applicable law
If the juvenile court finds by clear and convincing evidence at the section 366.26 hearing that a child is likely to be adopted, "the court shall terminate parental rights and order the child placed for adoption" unless, as relevant here, it "finds a compelling reason for determining that termination would be detrimental to the child due to one or more" enumerated exceptions. (§ 366.26, subds. (c)(1) &(c)(1)(B); see also Caden C., supra, 11 Cal.5th at pp. 630-631.) "The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R. (2003) 31 Cal.4th 45, 53.) The exception at issue here-the parental-benefit exception-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).)
"A parent has a right to due process at a section 366.26 hearing resulting in the termination of parental rights, which includes a meaningful opportunity to be heard, present evidence, and confront witnesses. However, these procedural rights are subject to evidentiary principles. Due process is 'a flexible concept dependent on the circumstances.' [Citation.] Since due process does not authorize a parent 'to introduce irrelevant evidence, due process does not require a court to hold a contested hearing if it is not convinced the parent will present relevant evidence on the issue he or she seeks to contest.' [Citation.] 'The trial court can therefore exercise its power to request an offer of proof to clearly identify the contested issue(s) so it can determine whether a parent's representation is sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses.' [Citation.] The parent's offer of proof 'must be specific, setting forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued.' [Citation.]" (In re Grace P. (2017) 8 Cal.App.5th 605, 612 (Grace P.).)
B. Standard of review
We review the juvenile court's decision to deny a contested hearing for an abuse of discretion. (Grace P., supra, 8 Cal.App.5th at p. 611.)
C. Analysis
The juvenile court did not abuse its discretion in declining to conduct a contested hearing.
Apart from a general request for a contested hearing, mother did not inform the juvenile court of any specific evidence that would be presented at such a hearing that differed in any way from the information already before the court in the section 388 petition, DCFS's various reports, and argument from counsel. Accordingly, mother's request for a contested hearing was procedurally defective. (See People v. Carlin (2007) 150 Cal.App.4th 322, 334 ["The trial court may reject a general or vague offer of proof that does not specify the testimony to be offered by the proposed witness"]; In re Tamika T. (2002) 97 Cal.App.4th 1114, 1124 (Tamika T.) ["The offer of proof must be specific, setting forth the actual evidence to be produced"].) The court thus did not act arbitrarily, capriciously, or patently absurdly (see In re A.S., supra, 180 Cal.App.4th at p. 358) in denying the request.
Resisting this conclusion in her reply brief, mother asserts that her "offer of proof consisted of' . . . mother's position that [minor], her daughter, [wa]s bonded to her' and 'statements of the [human services aide], who [wa]s the one who actually monitor[ed] and ha[d] witnessed the mother and daughter relationship.'" Mother contends that "[i]t follows" that she and the visitation monitor would have been called to testify at a contested hearing. Even if an offer of proof could be satisfied by implication, nothing suggests that this live testimony would have been anything other than cumulative to the information already before the juvenile court. Due process does not require the introduction of irrelevant or cumulative evidence. (See In re Tamika T., supra, 97 Cal.App.4th at p. 1122.)
The parents do not argue that, based on the evidence actually before it, the juvenile court erred in finding that the parental-benefit exception to adoption did not apply.
The parents' reliance on Grace P., supra, 8 Cal.App.5th 605 is misplaced. In that case, the appellate court found that the father's offer of proof regarding the parental-benefit exception was sufficient to warrant a contested hearing. (Id. at pp. 613615.) Unlike here, the offer of proof by the father in Grace P. set forth specific evidence that would be produced: (1) The father's "testimony about the positive quality of his visitation, how he parented [his] children during visits, and how the children considered him to be a father figure"; and (2) the testimony of one of the children "regarding how she enjoyed visits with [the f]ather, saw [the f]ather as a parent, and would be sad if visitation with [the f]ather ended." (Id. at p. 614.) In contrast, the offer of proof made by mother here lacked such specificity.
DISPOSITION
The orders denying mother's section 388 petition and terminating parental rights are affirmed.
We concur: LUI P. J., HOFFSTADT J.