Opinion
B331166
03-18-2024
In re J.K., a Person Coming Under the Juvenile Court Law. v. J.K., Sr., et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant J.K., Sr. Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant J.D. Amir Pichvai for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 22CCJP01922A Charles Q. Clay, Judge. Affirmed.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant J.K., Sr.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant J.D.
Amir Pichvai for Plaintiff and Respondent.
MOOR, J.
J.D. (mother) and J.K., Sr. (father) appeal from orders terminating parental rights to J.K. (minor) under Welfare and Institutions Code section 366.26. Mother also appeals a July 21, 2023 order summarily denying her petition under section 388. Mother contends the court abused its discretion when it summarily denied her section 388 petition, 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). Father joins in mother's arguments and contends that if mother prevails in her appeal, the order terminating his parental rights should also be reversed. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Our review of the facts and procedural background is focused on information relevant to the issues on appeal.
Minor has three older maternal half-siblings (born in August 2010, June 2012, and August 2014), all of whom were involved in prior dependency cases. The sustained allegations of a 2012 dependency case involving the two oldest half-siblings included a sustained allegation that mother's mental and emotional problems, including a diagnosis of bipolar disorder, rendered mother unable to provide regular care and supervision of the children, and that mother failed to take psychotropic medication as prescribed. The 2012 petition also included sustained allegations based on domestic violence and mother's history of drug abuse. A separate petition relating to mother's third child was sustained in 2020; the sustained petition also included allegations relating to mother's bipolar diagnosis, mental and emotional problems, failure to take psychotropic medications, and history of drug abuse. Ultimately, mother's parental rights were terminated as to all three half-siblings.
Minor was born in April 2022 with a positive toxicology screen for marijuana. The Los Angeles County Department of Children and Family Services (the Department) took custody of minor in May 2022 pursuant to a removal warrant. In June 2022, minor was placed in the home of his current prospective adoptive parents, maternal aunt and her husband, who had also adopted two of minor's half-siblings.
Mother, who was born in 1989, acknowledges she began using marijuana at the age of 14, and began to use methamphetamine shortly after she tried cocaine at 16 or 17 years old. She was using methamphetamine two to three times a week at the age of 16, and increased to a couple of times a day by age 18 or 19. According to mother, she has only used methamphetamine 6-8 times in the past 8 years. Mother's most recent positive methamphetamine test was in July 2022.
During the current investigation, maternal aunt reported that mother was diagnosed with ADHD around age 5 and bipolar disorder at age 12 or 13. According to maternal aunt, mother would have a manic episode about every three months, but in the past year maternal aunt noticed mother's mood cycling every month or so, going from pleasant and agreeable to disappearing or being abusive. Mother denied any psychiatric problems. She provided the social worker with a 2002 letter from her treating psychiatrist at that time, and the letter stated that mother had ADHD since 1996, initially suffered from impulsivity and hyperactivity with poor judgment when not on her medications, and she was also given a different medication to prevent extreme mood cycling.
In June 2022, the court sustained the petition allegations that minor was a dependent under section 300 based on testing positive for cannabinoids at birth, mother's lengthy history of drug abuse, mother's history of mental and emotional problems, and father's criminal history related to violence and controlled substances. At the disposition hearing held in July 2022, mother testified that if the court ordered reunification services, she would be able to do a full drug treatment program. The court ordered reunification services for father, but denied reunification services for mother under section 361.5, subdivision (b)(10), (11) and (13). Both parents would have monitored visits twice a week for three hours per visit.
Mother had consistent monitored visits with minor twice a week for about a year. Her visits were appropriate given minor's age at the time of the visits, between three and fifteen months old. Mother would bring diapers and interact with minor in a manner appropriate to his development. Until father was incarcerated in September 2022, mother and father visited together; they would arrive on time, feed and change minor, and engage with him affectionately. The Department acknowledged the consistency and positive nature of mother's visits, but also noted that during visits the monitor never observed minor reaching for mother. In contrast, mother would sometimes need to distract minor so the caregiver could leave the visit.
The court terminated father's reunification services in February 2023.
Minor's caregivers (who are also his prospective adoptive parents and the adoptive parents of two of his half-siblings) consistently provided minor with a safe, stable, and nurturing home environment, where he thrived. Minor had a very strong relationship with his caregivers and his siblings, and the caregivers continued to advocate for him and ensure his needs were met.
Mother's section 388 petition
The court also denied father's section 388 petition, but father has not raised any argument that the court's decision to summarily deny his petition was an abuse of discretion.
On July 3, 2023, mother filed a section 388 petition asking the court to change its prior order denying reunification services and removing minor from her custody. She asked the court to instead place minor in her care or alternatively, order reunification services and unsupervised visits. Mother alleged that she had completed six months of drug treatment program, drug tested clean, participated in individual and group counseling, enrolled in a parenting class, and visited minor consistently. Mother alleged changing the prior orders would be in minor's best interests because mother receiving reunification services would lead to unmonitored visits, overnight visits, and an eventual home of parent mother order. The court scheduled a hearing on whether it should grant or deny either parent an evidentiary hearing on their respective section 388 petitions.
On July 21, 2023, parents' counsel argued an evidentiary hearing was warranted because both mother and father's petitions made a prima facie case of changed circumstances and minor's best interests. Minor's counsel asked the court to deny mother's section 388 petition without an evidentiary hearing. Minor's counsel argued that mother's drug program was insufficient given mother's long history of drug abuse and minor being her fourth child born with positive toxicology for drugs. Minor's counsel also argued that the sustained count based on mother's mental and emotional problems precluded relief, because there was no indication mother had sought any evaluation or treatment for her mental health problems, even though the court had ordered an evaluation in the dependency proceeding involving her third child. Reunification with mother would not be in minor's best interest, as he was attached to his caregivers and half-siblings, with whom he had lived for more than a year since he was one month old. The Department asked the court to take judicial notice of its entire case file, including a sustained allegation from the prior dependency proceeding (involving mother's third child) that mother has a history of bipolar disorder and not taking her medications. The Department also argued that mother had not made a prima facie case of changed circumstances because mother had not alleged any effort to address her mental and emotional problems, noting that counseling mother received in her substance abuse program was in the context of her drug use, and did not focus on her broader mental health issues. The court commended mother on her progress in the drug treatment program, but denied her section 388 petition on the grounds that mother had not shown a change in circumstances on her mental health status, or that any change in orders would be in minor's best interests.
Section 366.26 hearing
Turning to the portion of the hearing under section 366.26, the court heard testimony by mother, father, and minor's caregiver relevant to the parental relationship exception to termination of parental rights. The court found minor was adoptable, and that no parental bond exception applied. Parental rights to minor were terminated. Mother and father both appealed.
DISCUSSION
A. Mother's Section 388 Petition
Mother contends her section 388 petition made a prima facie case of changed circumstances and a showing that a hearing would promote minor's best interests. We disagree.
A petition to change or modify a juvenile court order under section 388 must factually allege that there are (1) changed circumstances or new evidence to justify the requested order, and (2) that the requested order would serve the minors' best interests. (In re G.B. (2014) 227 Cal.App.4th 1147, 1157; Cal. Rules of Court, rule 5.570(d)(1) &(2).)" 'A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' [Citation.] In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re K.L. (2016) 248 Cal.App.4th 52, 61-62; see also In re Anthony W. (2001) 87 Cal.App.4th 246, 250 [" '[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence' is required"].)
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. (Ibid.; In re Malick T. (2022) 73 Cal.App.5th 1109, 1123.) Nonetheless, a parent may rebut the presumption that, once family reunification services have been terminated, reunification is not in the best interest of the child by showing that circumstances have changed and that the best interest of the child warrants further reunification services. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Stephanie M., at p. 317.)
"[B]est interests is a complex idea" that requires consideration of a variety of factors. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530; see In re Jacob P. (2007) 157 Cal.App.4th 819, 832-833.) 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.)
Here, the juvenile court had already bypassed reunification services for mother under section 361.5, subdivision (b)(10), (11) and (13), meaning it had previously determined by clear and convincing evidence that mother had failed to reunify with minor's half-siblings and had not subsequently made a reasonable effort to treat the problems that led to the removal of those half-siblings. (In re Jayden M. (2023) 93 Cal.App.5th 1261, 1271.) With respect to her mental health problems, we agree with the juvenile court that mother did not provide any evidence to demonstrate changed circumstances or that reunification services or minor's placement with mother would be in minor's best interests. Minor was detained shortly after birth, and his only relationship with mother was through monitored visits. Nothing in mother's section 388 petition made a prima facie case that reinstating reunification services would be in minor's best interests. Having failed to establish a prima facie case on the best interests prong, mother was not entitled to an evidentiary hearing on her section 388 petition.
B. Parental Relationship Exception
Mother contends the juvenile court erred when it determined that the parental relationship exception to adoption did not apply.
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.)
The juvenile court found that mother's record of regular visitation satisfied the first prong of the parental relationship exception to adoption, and gave mother the benefit of the doubt on the second prong, noting that any child would benefit from additional support and love from any person. However, the court concluded that mother had not met her burden of demonstrating that terminating parental rights would be detrimental for minor, particularly when balanced against the benefit of his prospective adoptive home. Minor was only fifteen months old and had spent the vast majority of his life with his caregivers and two halfsiblings. Further, the caregivers were committed to providing permanency for minor. Mother has not shown that the court abused its discretion in finding she had not met her burden on the third prong of the parental relationship exception.
Moreover, mother's argument on appeal focuses on the juvenile court's purported failure to make express factual findings about mother's visitation and a purported misunderstanding of the underlying facts. We are unconvinced by any of mother's arguments, both because the juvenile court was not required to make express findings (In re A.L. (2022) 73 Cal.App.5th 1131, 1156), and because mother has not shown that any error was prejudicial (In re Brianna S. (2021) 60 Cal.App.5th 303, 315).
C. Father's Appeal
Because father's contentions on appeal are entirely dependent on our resolution of mother's arguments, he has not demonstrated any error.
DISPOSITION
The juvenile court's July 21, 2023 orders denying mother's petition under Welfare and Institutions Code section 388 and terminating parental rights as to minor J.K. are affirmed.
We concur: BAKER, Acting P.J. LEE, J. [*]
[*] Judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.