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L.A. Cnty. Dep't of Children & Family Servs. v. Candi C. (In re Camiyah W.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 29, 2020
B297759 (Cal. Ct. App. Jan. 29, 2020)

Opinion

B297759

01-29-2020

In re CAMIYAH W., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CANDI C., et al., Defendants and Appellants.

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant Candi C. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant Andrew W. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK10292D-E) APPEAL from orders of the Superior Court of Los Angeles County. Steven E. Ipson, Judge. Affirmed. Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant Candi C. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant Andrew W. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel for Plaintiff and Respondent.

____________________

Appellants Candi C. (mother) and Andrew W. (father) appeal from orders denying their petitions, under Welfare and Institutions Code section 388, to reinstate reunification services for their children, Camiyah and Kamerhon, and terminating their parental rights. We affirm the juvenile court's orders.

All further statutory references are to the Welfare and Institutions Code. --------

BACKGROUND

Mother and father are the parents of five children, Andrew (born 2008), Khailan (born 2009), Camiyah (born 2012), Kamerhon (born 2016), and Kayhlin (born 2018). Mother also has an older daughter, Maliyah (born 2005). Camiyah and Kamerhon are the only children who are subjects of this appeal.

Detention and section 300 petition for Camiyah

In March 2015, the Los Angeles County Department of Children and Family Services (the Department) received a referral alleging that the parents used drugs and that there was no food in the home. During the ensuing investigation the parents refused multiple requests by the Department for them to be tested for drugs. The juvenile court issued a warrant authorizing the removal of Camiyah, Andrew and Khailan from the home.

On May 12, 2015, the Department filed a section 300 petition alleging the parents' history of substance abuse and current use of methamphetamine and marijuana placed the children at risk of harm. Both parents were present at the May 12, 2015 detention hearing at which the juvenile court found father to be the presumed father of Camiyah, Andrew, and Khailan. The court detained the children from both parents and ordered the Department to provide mother and father with weekly and on-demand drug and alcohol testing. Mother and father were accorded monitored visits with the children.

In July 2015, the Department reported that a long-time family friend claimed that mother and father used methamphetamine and marijuana while the children were present in the home and that drug dealers and drug users frequent the home. The Department recommended that the juvenile court assume jurisdiction over the children and remove them from parental custody.

Neither parent submitted to drug testing during the period from May 2015 to March 2016. However, the parents visited consistently with the children. The juvenile court twice continued the matter, from November 2015 to March 2016, and again to April 2016.

Detention and section 300 petition for Kamerhon

In the spring of 2016, mother gave birth to Kamerhon, who tested positive for amphetamines. The Department filed a section 300 petition on Kamerhon's behalf on April 21, 2016, alleging that mother had used drugs during her pregnancy and tested positive for amphetamines on the day of Kamerhon's birth. Father had also tested positive for methamphetamine and marijuana on April 18, 2016.

On April 21, 2016, the juvenile court ordered Kamerhon detained from mother and father and accorded the parents monitored visits.

Jurisdiction and disposition

On June 3, 2016, the juvenile court sustained an amended petition on behalf of Camiyah, Andrew, and Khailan, finding that the parents' substance abuse placed the children at risk of harm and that the parents created a detrimental home environment by allowing unrelated adults who were users of illicit drugs to frequent the home and have unlimited access to the children.

On August 24, 2016, the juvenile court sustained an amended petition on behalf of Kamerhon, finding that the parents' substance abuse placed him at risk of harm. The court declared Kamerhon a dependent of the juvenile court and removed him from parental custody. The juvenile court ordered both parents to participate in a drug rehabilitation program with weekly random drug testing, a 12-step program, parenting, and individual counseling to address case issues.

Review proceedings and termination of reunification services

In April 2017, the Department reported that neither parent had complied with the case plan. Father tested for drugs the first time on March 1, 2017, and the test was positive for methamphetamine. He had two subsequent negative tests and failed to appear for two tests. Father enrolled in a drug program at the Tarzana Treatment Center in early April 2017 but was subsequently terminated for non-compliance. He tested positive for methamphetamine twice in April 2017, twice in May 2017, once in June 2017, and once in August 2017.

Mother tested positive for methamphetamine in February 2017, had two negative drug tests in March 2017, and failed to test thereafter. She enrolled in a drug program at the Tarzana Treatment Center on August 9, 2017, attempted to use someone else's urine for a drug test on August 18, 2017, and thereafter failed to appear for classes or drug testing.

Although the parents had not complied with their case plan, they consistently visited with the children. During visits they brought food and activities and were generally appropriate. The Department's social worker observed that interaction between the parents and children was positive, but expressed concern that mother and father lacked proper parenting skills.

On September 25, 2017, the juvenile court terminated reunification services for both parents.

Post reunification period

Mother and father were arrested for theft in January 2018. Though the parents visited consistently with the children, they were often late for visits. Because neither parent had complied with the case plan the Department recommended that the visits remain monitored.

Camiyah and Kamerhon were placed together with caregivers who wished to adopt them. The caregivers said they were willing to maintain contact with the children's siblings after the adoption.

Camiyah and Kamerhon were thriving in their foster parents' care. Kamerhon appeared to be bonded with his foster mother. Camiyah was also bonded with her foster parents and referred to them as mom and dad. In May 2018, the Department reported that the caregivers had an approved adoption home study.

Mother gave birth to Kayhlin in 2018. Neither mother nor the newborn were drug tested before they were discharged from the hospital. Although the juvenile court initially issued a removal order for Khailan, at the subsequent detention hearing the court determined that the infant should remain in the parents' care. A nondetain dependency case is currently in effect for Kayhlin.

Section 388 petitions

Mother filed a section 388 petition on September 4, 2018, seeking return of the children, or alternatively, additional reunification services. In her petition, mother stated that she had completed a drug rehabilitation program with aftercare. Mother provided documentation indicating that she was receiving weekly individual therapy and had been attending AA/NA meetings for three months.

Father filed a section 388 petition on September 5, 2018, seeking return of the children or reinstatement of reunification services. Father stated in his petition that he had completed parenting classes, was attending drug counseling through the Department of Mental Health, and had been testing negative for drugs since Kayhlin's birth. Father attached to his petition a letter from the Department of Mental Health confirming his participation in services since April 2016. Also attached was a letter from the agency that had monitored the parents' visits with the children since April 2018, which stated that the parents visited consistently, engaged the children in activities, set appropriate limits and boundaries, and brought healthy food for the children.

In its November 2018 response to the parents' section 388 petitions, the Department reported that mother and father had been homeless for nearly a year. Although father had five negative drug tests between July and October 2018, he had failed to complete a treatment program and was not currently enrolled in a drug program. Mother tested positive for alcohol on July 13, 2018. The Department recommended that both parents' petitions be denied.

The juvenile court granted mother and father a hearing on their respective section 388 petitions. The hearing commenced on January 28, 2019, and resumed in March 2019.

In a last minute information for the court dated March 12, 2019, the Department reported that mother had nine negative drug tests, one diluted test in December 2018, and one missed test in January 2019. Father had 10 negative drug tests and one diluted test in February 2019.

The juvenile court received into evidence the Department's reports, exhibits attached to the parents' petitions, and a certificate stating that mother and father had completed a parenting program. Mother called as a witness Department social worker Larhonda Mitchell, who testified that she had been assigned to the family's case for a year and a half and had monitored some of the parents' visits. Mitchell observed that mother and father were not under the influence of drugs during the visits and that the older children appeared to be bonded to their parents. Mitchell stated that the parents were often late for visits and that some visits were cancelled as a result.

Mother testified that she was now addressing her case plan. She said that she was participating in random drug testing, had a home that could accommodate all of the children, and had enrolled in individual counseling within the last week. Mother testified that she had been sober since November 2017, and that it was in the children's best interest to be in a home with their parents.

Father testified that he and mother had a four-bedroom home ready for the children and that he had full-time employment as a security guard. Father further testified that he had enrolled in individual counseling the previous week, was participating in random drug testing, and has been attending N.A. meetings since November 2017.

After hearing argument from the parties and taking the matter under submission, the juvenile court found on March 25, 2019, that the parents had demonstrated a marginal change of circumstances. The court granted the parents' request for additional reunification services for Andrew and Khailan, but denied the request as to Camiyah and Kamerhon, finding that additional services were not in the children's best interests. The court noted that Camiyah and Kamerhon were placed with prospective adoptive parents who were ready and willing to adopt them, that it was speculative as to whether mother and father would be able to reunify with the children, and that further efforts at reunification would delay permanency for the children.

Section 366.26 hearing

At the contested section 366.26 hearing on May 7, 2019, mother's counsel argued that mother shared a strong bond with the children and urged the court to consider a plan of legal guardianship instead of adoption. Mother's counsel further argued that terminating parental rights would be detrimental to the children because it would sever bonds between the children and their siblings. Father's counsel joined in mother's arguments.

The juvenile court denied the parents' request for legal guardianship. The court found that Camiyah and Kamerhon were adoptable, and that no exception to terminating parental rights applied. The juvenile court then terminated mother's and father's parental rights over Camiyah and Kamerhon.

This appeal followed.

DISCUSSION

I. Section 388 petitions

A. Applicable law and standard of review

Section 388 provides in relevant part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made." (§ 388.) "Section 388 provides the 'escape mechanism'. . . built into the process to allow the court to consider new information. [¶] . . . Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances . . . . [¶] . . . [T]he Legislature has provided the procedure pursuant to section 388 to accommodate the possibility that circumstances may change after the reunification period that may justify a change in a prior reunification order." (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).)

That being said, "[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.); § 388, subd. (b).) "[T]he burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change . . . in the best interests of the child. [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)

"'Whether a previously made order should be modified rests within the dependency court's discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.' [Citation.]" (In re Amber M. (2002) 103 Cal.App.4th 681, 685.) We will not reverse a juvenile court's denial of a section 388 petition "'"unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.]" (Stephanie M., supra, 7 Cal.4th at p. 318.)

B. No abuse of discretion

The juvenile court did not abuse its discretion in denying mother's and father's respective section 388 petitions. Neither parent demonstrated that further reunification services would be in the children's best interests. The factors to be considered when determining a child's best interest include: (1) the seriousness of the problem which led to dependency, (2) the strength of the relative bonds between the dependent children to both parent and caretakers, and (3) the degree to which the problem is easily removed or ameliorated. (Kimberly F., supra, 56 Cal.App.4th at p. 532.)

At the time the section 388 petitions were filed, Camiyah had been removed from her parents' care for more than three years. Kamerhon had never been in his parents' care, since he was removed from them at birth. Both children were bonded to their caregivers, who had an approved home study and wanted to adopt the children. The caregivers were willing to maintain postadoption contact with the children's siblings. Although mother and father visited consistently, and shared some bond with Camiyah, they never progressed beyond monitored visits. There is a limit on the length of time a child must wait for a parent to become adequate. (Marilyn H., supra, 5 Cal.4th at p. 308.) The juvenile court did not abuse its discretion by denying the parents' section 388 petitions.

II. Termination of parental rights

Section 366.26, subdivision (c)(1) provides for the termination of parental rights if family reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is likely to be adopted. Once reunification services have been terminated, "'[f]amily preservation ceases to be of overriding concern . . . the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability. [Citation.]' [Citation.]" (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) "Adoption, where possible, is the permanent plan preferred by the Legislature. [Citation.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Although the statutory preference is in favor of adoption, section 366.26 lists certain exceptions that may preclude termination of parental rights, if the juvenile court finds "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)

Father's sole basis for challenging the order terminating his parental rights is that the juvenile court erred by denying his section 388 petition. Since we have determined that the denial of father's section 388 petition was not an abuse of discretion, there is no basis for reversing the order terminating his parental rights.

Mother points out that under the statutory exception set forth in section 366.26, subdivision (c)(1)(B)(i), the juvenile court may select a permanent plan other than adoption if the court finds that a child has had regular visitation and contact with the parent and the child would benefit from continuing the relationship. The juvenile court made no such finding in this case. Rather, the court found that any incidental benefit the children might derive from interaction with their parents was outweighed by the benefit of permanence. Substantial evidence supports that finding. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)

DISPOSITION

The orders denying mother's and father's respective section 388 petitions and terminating their parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

/s/_________, J.

CHAVEZ We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
HOFFSTADT


Summaries of

L.A. Cnty. Dep't of Children & Family Servs. v. Candi C. (In re Camiyah W.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 29, 2020
B297759 (Cal. Ct. App. Jan. 29, 2020)
Case details for

L.A. Cnty. Dep't of Children & Family Servs. v. Candi C. (In re Camiyah W.)

Case Details

Full title:In re CAMIYAH W., et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Jan 29, 2020

Citations

B297759 (Cal. Ct. App. Jan. 29, 2020)

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