Opinion
B334416
09-06-2024
In re K.R. et al., Persons Coming Under the Juvenile Court Law. v. M.F., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and Jane Kwon, Principal Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 21CCJP03030C-D Nancy Ramirez, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel and Jane Kwon, Principal Deputy County Counsel for Plaintiff and Respondent.
MOOR, J.
M.F. (mother) appeals from the juvenile court's January 8, 2024 orders denying her petition under Welfare and Institutions Code section 388 and terminating parental rights to her two sons, K.T. (born March 2019) and K.R. (born October 2020) (collectively, minors) under section 366.26. Mother contends the court erred when it denied her section 388 petition after a hearing, and it erred in denying application of the parental relationship exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
"In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
Appellant's counsel is reminded of the obligation to "fairly set forth all the significant facts, not just those beneficial to the appellant." (In re S.C. (2006) 138 Cal.App.4th 396, 402.)
Minors are the two youngest of mother's four children. Mother's oldest child and only daughter, M.F., was born August 2013. Mother's oldest son was born in June 2015. The children were the subjects of multiple referrals to the Department between 2016 and 2021 involving mother's substance abuse, mental health issues, and general neglect of the children.
None of the children's respective fathers, nor mother's two older children filed a brief or made an appearance in the current appeal.
On June 30, 2021, the Department filed a petition alleging all four children were dependents under section 300, subdivisions (b), (d), and (j) based on: the unsanitary, uninhabitable, and hazardous condition of the family's home (b-1), a ball of marijuana on the children's bed within their access (b-2), mother's inability to provide care because of her history and current use of marijuana (b-3), mother's failure to protect M.F. from sexual abuse by an unrelated male (b-4, d-1, j-1), and mother's mental and emotional problems (b-5).
On September 23, 2021, the juvenile court sustained an interlineated first amended petition. At a disposition hearing on November 24, 2021, mother's court-ordered case plan required mother to complete parenting and individual counseling, and to submit to 12 random or on-demand drug tests, and if any test was missed or dirty for other than low levels of marijuana, mother was to complete a minimum six months of a substance abuse treatment program. Mother's visits with minors would continue to be monitored.
A. Minors' Placement History
In late June 2021, M.F. (then age 7) and K.R. (then nine months old) were detained from mother and placed in a foster home together. In July 2021, K.T. was placed with his current caregiver and prospective adoptive parent, L.U. When K.R. was 18 months old, in March 2022, he was moved from his prior foster placement to L.U.'s home. M.F. was returned to mother's custody on May 25, 2023.
By January 8, 2024, K.R. and K.T. had been out of mother's custody for almost two and a half years, and both minors had been living with their current caregiver and prospective adoptive parent, L.U., for half of their respective lives. K.R. was diagnosed with Autism Spectrum Disorder and was evaluated to be in the "severe symptoms" severity group. K.T. was also diagnosed with autism, but was higher functioning than K.R. Both children were bonded to L.U., and she was proactive in getting necessary services for them and committed to adopting them.
B. Mother's History of Engagement with Reunification Services and Visitation with Minors
At the outset of the case, the Department arranged weekly visits for mother. At her first visit with M.F. and K.T. on September 18, 2021, mother arrived four hours late, accompanied by five additional people. At the adjudication hearing the following week, the court ordered monitored visits for mother, directing her not to bring unauthorized people to the visits.
After the disposition hearing in November 2021 and through April 2022, mother was noncompliant with her case plan and was not in communication with the Department's social worker. She missed 10 drug tests, tested positive for marijuana, claimed to have relapsed on methamphetamine, and was discharged from a counseling program for noncompliance.
Mother also did not visit minors in the period from disposition in November 2021 until April 2022. When she started visiting for three hours once a week, her visits were consistent and appropriate. However, by May and June 2022, mother's visits with minors were sporadic and inconsistent. The court terminated mother's reunification services at the six-month review hearing on July 8, 2022, noting her minimal participation in services and her failure to attend more than a handful of visits with the children.
From August 11, 2022 through March 2023, mother had two-hour visits with minors on Thursday mornings, and at those visits engaged in appropriate activities. The children were comfortable in her care. However, mother did not contact L.U. to inquire about minors' well-being, or to have telephonic visits. She also told the social worker that she was only able to visit once a week, and would inform the Department when she was able to visit more.
Between April and July 2023, it appears that mother only had two visits with minors, when L.U. transported them from Moreno Valley to Long Beach to see mother.
By September 2023, in order to address obstacles to mother's visitation, the Department arranged to transport the children from Moreno Valley to Long Beach, and mother's weekly visits were consistent. However, the Department noted that mother did not "contact the caregiver to inquire about the development of her children, nor does mother request to speak with her children over the phone or through FaceTime in between in person visitation. Mother appears to be content with visiting her children once a week for 2 hours." Minors' caregiver, L.U. observed that "mother has a pattern where she will visit with the children consistently for a month or two then she would disappear."
C. Permanency Planning, Mother's section 388 Petition, and Termination of Parental Rights
In May 2023, mother regained custody of her nine-year-old daughter M.F., over the Department's objections based on mother's unaddressed mental health and substance abuse conditions, including her failure to participate in mental health counseling or take psychotropic medicine and her failure to consistently complete drug and alcohol testing or a treatment program to address substance abuse. Even after gaining custody of M.F., mother struggled with maintaining contact with M.F.'s wraparound services team, filling and administering M.F.'s psychotropic medication, keeping up with M.F.'s medical and dental appointments, and maintaining stable housing and employment. Mother repeatedly told the social worker that she was stressed and overwhelmed. The Department did not believe she would be able to care for minors, who both had autism.
On November 6, 2023, mother filed a section 388 petition, asking for minors to be returned to her care or to have reunification services reinstated. In the portion of mother's petition describing what circumstances had changed that warranted a revised order, mother alleged that the court's May 2023 decision to return M.F. to mother's custody "demonstrates mother's protective ability and that she has addressed case issues." The petition also alleged that the requested change was in minors' best interest because "The children are bonded with their older sibling [M.F.] It would be beneficial for [K.T.] and [K.R.] to reunite with their mother so that they may remain together as one family." There was no documentation of mother's case plan compliance attached to the section 388 petition.
The juvenile court scheduled hearings for January 8, 2024, to address section 388 petitions filed by mother, M.F., and R.R. (K.R.'s father), together with the section 366.26 hearing. The court directed the Department to file a response to mother's section 388 petition.
It its response to mother's section 388 petition, the Department recommended against placing minors with mother or reinstating reunification services. The Department explained that, despite having services available to her for two years, mother still had not been able to drug test consistently and continued to deny that she had any mental health problems. Despite sustained counts in September 2021 based on mother's drug use and unaddressed mental and emotional problems, mother had only started participating in parenting sessions at a treatment center in November 2023; by January 2024, mother was not yet receiving mental health counseling, and had only drug tested twice. Mother had been living in transitional housing in Los Angeles in May 2023, but moved in July to a different transitional housing unit in Long Beach, where she was informed she could live for two years. However, by November, mother lost her employment and moved out of transitional housing after getting into a fight with the person operating the program. Mother then moved into maternal grandmother's home in Lancaster.
At the hearing on January 8, 2024, the court heard mother's testimony and argument from counsel. The court denied mother's section 388 petition, finding that mother had not shown a change in circumstances or that granting her petition would be in the children's best interests. In response to objections raised by M.F.'s counsel and mother's counsel, the court found that neither the sibling relationship exception nor the parental relationship exception was applicable to the termination of parental rights. The court found by clear and convincing evidence that return of minors to the mother would be detrimental, and terminated the parental rights of mother and any others claiming to be minors' parents.
DISCUSSION
A. Mother's Section 388 Petition
We find no abuse of discretion in the juvenile court's January 8, 2024 decision to deny mother's section 388 petition, which sought to change the court's July 8, 2022 order terminating mother's reunification services to either return minors to mother's care or reinstate reunification services.
"Section 388 provides for modification of juvenile court orders when the moving party presents new evidence or a change of circumstance and demonstrates modification of the previous order is in the child's best interest. [Citations.]' "The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child." [Citation.] "[T]he change in circumstances must be substantial."' [Citation.]" (In re Malick T. (2022) 73 Cal.App.5th 1109, 1122; Cal. Rules of Court, rule 5.570(h)(1).) We review the juvenile court's ruling for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415 [the decision on a section 388 petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion"].)
In determining whether a section 388 petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case, including factors such as the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner. (In re Mickel O. (2011) 197 Cal.App.4th 586, 616; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447; In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
When a section 388 petition is filed after family reunification services have been terminated, the juvenile court's overriding concern is the child's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "The parent's interests in the care, custody and companionship of the child are no longer paramount; and the focus shifts to the needs of the child for permanency and stability." (In re Malick T., supra, 73 Cal.App.5th at pp. 11221123; Stephanie M., at p 317.) Because time is of the essence to young children, when it comes to securing a stable, permanent home, prolonged uncertainty is not in their best interest. (See In re Josiah Z. (2005) 36 Cal.4th 664, 674, [" '[t]here is little that can be as detrimental to a child's sound development as uncertainty over whether he is to remain in his current "home," under the care of his parents or foster parents, especially when such uncertainty is prolonged' "]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, ["the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion"].)
Nothing in mother's testimony or her appellate brief convinces us that the court abused its discretion in denying mother's section 388 petition after an evidentiary hearing. During the 18 months since the court terminated mother's reunification services, mother had not been able to maintain stable housing, drug test consistently, or address her mental health issues. In light of minors' positive bond with their caregiver, who was committed to providing permanency, mother also could not demonstrate that delaying permanency was in the children's best interests.
B. Parental Relationship Exception
The juvenile court did not err in finding the parental relationship exception inapplicable.
If a 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 In re Caden C. (2021) 11 Cal.5th 614, 630-631 (Caden C.).) "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 relationship 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 asserting the parental relationship exception must show, by a preponderance of the evidence, each of the following three elements. First, the parent must show that he or she had "regular visitation and contact with the child, taking into account the extent of visitation permitted." (Caden C., supra, 11 Cal.5th at p. 636.) Second, the parent must show 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." (Caden C., supra, 11 Cal.5th at p. 636.) This element is affected by" '[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.'" (Id. at p. 632.) In conducting this assessment, "courts often consider how children feel about, interact with, look to, or talk about their parents." (Ibid.) Third party witnesses, including psychologists, can provide relevant evidence about the parent/child bond. (Id. at pp. 632-633.) Third, the parent must show that "terminating that [parental] attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.)
The substantial evidence standard of review applies to the first two prongs of the parental relationship exception-namely, whether the parent has maintained regular visitation and contact with the child and whether the relationship is such that the child would benefit from continuing it. (Caden C., supra, 11 Cal.5th at pp. 639-640.) The third prong of the parental-benefit exception- "whether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion." (Caden C., supra, 11 Cal.5th at p. 640.)
There was substantial evidence to support the juvenile court's determination that mother had not met the first prong of the parental relationship exception, regular visitation. The record shows months-long gaps in mother's visitation, and L.U. reported that mother would have consistent weekly visits for a month and then disappear. Even if we were to assume that mother showed a positive bond with minors, she has not demonstrated that the court abused its discretion in concluding that any detriment caused by ending that bond was outweighed by the benefit of permanency. By the time of the section 366.26 hearing, K.R. and K.T. were three and almost five years old respectively, had lived with L.U. for half their lives, and were bonded to L.U, who was committed to adopting them. L.U. was fully aware of both minors' needs for services and had been consistent in ensuring that minors received services for their autism and speech deficits. Since there was very little evidence that minors were strongly bonded to mother, we conclude the juvenile court acted well within the bounds of reason in determining that the benefits of permanency outweighed the detriment of severing the parental bond.
DISPOSITION
The juvenile court's January 8, 2024 orders denying mother's petition under Welfare and Institutions Code section 388 and terminating parental rights as to minors K.T. and K.R. are affirmed.
We concur: BAKER, Acting P.J., KIM, J.