Opinion
B227507
08-18-2011
In re CAMERON C., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RAE G., Defendant and Appellant.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Angela Williams, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK62225)
APPEAL from a judgment of the Superior Court of Los Angeles County, Marguerite Downing, Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Angela Williams, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Appellant Rae G. (Mother) has three children subject to the jurisdiction of the juvenile court: Cameron (born in Nov. 2000), Christian (born in Jan. 2005), and Chloe (born in April 2007). Each child has a different father, none of whom is a party to this appeal.
Mother has a fourth child (a 15-year son) who has lived with his father since he was six years old. That child has not been subject to the juvenile court's jurisdiction.
Mother's appeal contests only two rulings made in the course of this lengthy dependency proceeding. First, she challenges the juvenile court's denial of her section 388 petition. The petition sought additional reunification services with Cameron and Chloe or, alternatively, return of the children to her. Second, she challenges the juvenile court's order terminating her parental rights to Chloe.
All statutory references are to the Welfare and Institutions Code.
We find no merit to any of Mother's contentions and therefore affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
1. Department's First Petition
In March 2006, a section 300 petition was sustained, declaring Cameron and Christian dependents of the juvenile court based upon Mother's physical abuse of Cameron. (§ 300, subds. (a) & (j).) (Chloe had not yet been born.) Cameron was diagnosed as emotionally disturbed and a special needs child. The two children were placed with the maternal grandmother. Family reunification services were ordered. Mother was ordered to attend parenting classes and attend individual counseling.
In the next year, Mother visited her children and completed a parenting class but did not begin individual counseling to address her anger management issues.
At the March 19, 2007 review hearing, the juvenile court found Mother was in partial compliance with the case plan but that it would not order return of Cameron and Christian to her until she had participated in individual therapy.
In April 2007, Mother gave birth to Chloe. Chloe was not detained.
At the June 18, 2007 progress hearing, the juvenile court again admonished Mother to start individual counseling. Mother claimed she had not done so because she was very busy with the recently born Chloe and was looking for a larger home to live in with Chloe and Chloe's father, Gregory G.
On February 21, 2008, the juvenile court, over Department's objection, ordered that Cameron and Christian be returned to Mother's custody on the condition that Mother live in the maternal grandmother's home. Department had unsuccessfully recommended termination of reunification services and permanent planning for Cameron and Christian because Mother had failed to complete parenting classes and had enrolled in individual counseling only three months earlier. The juvenile court continued jurisdiction and ordered Mother to complete the parenting class and to remain in individual counseling.
By August 2008, Mother had stopped participating in the court-ordered programs, telling the social worker "she has her children in her care so why should she continue with the programs." In addition, Mother had stopped living with the maternal grandmother in violation of the court's order. Mother and her three children were now living with Gregory G. (Chloe's father).
2. Department's Subsequent Petitions
In November 2008, Department filed petitions to detain Cameron, Christian and Chloe based on the allegations that Gregory G. had physically abused both Mother and Cameron and that Mother, by living with Gregory G., failed to protect her children and endangered their safety. (§ 300, subds. (a) & (b).) The juvenile court detained the three children, placing them with relatives or in foster care.
In April 2009, the juvenile court sustained the new petitions. The court ordered six-month reunification services for Mother and Chloe. The court ordered Mother to attend parent education class, enroll in individual counseling, and participate in a drug rehabilitation program with random drug testing.
Relatives had informed Department that Mother was using drugs.
In May 2009, the juvenile court denied Mother reunification services for Cameron and Christian and set a 366.26 hearing to permanently place the two boys. The court found that Mother had "had three years of family reunification services as to the original petition which was filed in January of 2006, and there's no statutory authority for the court to continue family reunification services and no variable services to justify the court going beyond the 24-month period."
Department's report for the section 366.26 hearing recommended legal guardianship for Christian with his paternal grandparents and foster care for Cameron.
In November 2009, the juvenile court terminated reunification services for Chloe and Mother and set the matter for a permanent plan hearing. Mother had not participated in any of the court-ordered programs; had had no contact with her social worker since April 2009; and had visited Chloe only once. The juvenile court found that Department had made reasonable efforts to provide reunification services but that Mother had failed to make significant efforts to comply with the reunification plan.
3. Mother's Section 388 Petition
In March 2010, Mother filed a section 388 petition to modify the juvenile court's prior orders denying further reunification services with Cameron and terminating reunifications services with Chloe. At the time, Cameron was in a group home and Chloe was living with her paternal grandparents who wanted to adopt her. Mother sought further reunification services with those two children or, alternatively, return of them to her home.
On the issue of changed circumstances, Mother's petition claimed: "Mother has completed parenting and anger management classes. She has been attending individual counseling at Beyond Shelter consistently for six months. Mother has consistently sought visitation with her children, despite ongoing resistance and violation of court orders for visitation by [the social worker]." Mother attached three documents to her petition. The first verified that in May 2009, she had completed a 12-week parenting and anger management class at Parents Anonymous; the second verified that as of October 14, 2009 she had commenced individual counseling at Beyond Shelter; and the third, a March 24, 2010 letter from her therapist Lynda Tarvin at Beyond Shelter, acknowledged that while Mother "has had some difficulty in being consistent with her individual counseling sessions" and "has had some problems with procrastination in the past," she has now "made [an] effort to attend her regularly scheduled sessions" and "appears more confident at this time and focused on being compliant with the orders of the court in hopes of regaining custody of her children."
As to why the requested modifications would benefit her children, Mother's petition stated: "Christian is placed in legal guardianship with relatives; Cameron is a special needs child placed in a group home. Cameron was consistent with his medication and was doing best when he was hop-mother [sic]. Mother provided excellent care for her childre[n]; the family [was] closely bonded. It would be in Chloe's best interest to reunify; if she is adopted, it would permanently sever her relationship with her parents and siblings."
Department opposed Mother's section 388 petition with the following information. As for Mother's participation in counseling, Beyond Shelter's program director told Department that Mother had been "inconsistent with her attendance" in the individual counseling program and had failed to attend an April 14, 2010 appointment. The program was "considering disenrollment." An April 22nd letter from Tarvin (Mother's therapist) confirmed this assessment. She wrote that Mother "continues to have difficulty in meeting with [me] for scheduled counseling sessions [and] has failed to show for the last three scheduled sessions."
Further, Mother's visitation with Chloe, who was living with her paternal grandparents, was erratic. Mother was permitted three one-hour visits a week. "Transportation checks were ordered" for Mother but Mother failed to use them. Mother visited Chloe in April 2009 but then did not see her for almost a year. In March 2010, Department arranged for weekly meetings to occur between Mother and Chloe at a McDonald's near the paternal grandparents' home. Mother kept only one appointment: April 3, 2010. At that meeting, Mother "was rude and very disrespectful toward the paternal grandparents." Mother did not keep the next appointment (April 10), leaving the grandparents to wait at McDonald's. On April 16, Mother left a message for the social worker cancelling the April 17 meeting which had been planned to celebrate Chloe's birthday. Mother failed to appear for a visit on April 24. From May 8 to July 17, Mother did not visit with Chloe. According to the social worker, Chloe's "grandparents have been in compliance with the visit [schedule, but Mother] just never came to the McDonalds or call[ed] to cancel the visits."
Similarly, Mother's visitation history with Cameron (who was living in a group home) was not good. In January 2010, Department had scheduled 3 one- hour visits a week for Mother and Cameron. But in the next 60 days, she visited him only nine times. Even with that limited scope, her visits did not positively affect Cameron. His anti-social behavior (physical attacks on staff and peers, vulgar abuse of staff, temper tantrums, disruption in the classroom) increased after the visits. Further, her phone calls to Cameron had "a negative affect on [him] at school." And when Mother failed to make a scheduled visit, Cameron's behavior toward others became very aggressive.
In March 2010, Department, pursuant to the juvenile court's order, changed the visitation schedule to one one-hour visit a week. In the following month, Mother visited Cameron only once and cancelled all other visits. As of July 2010, Mother was visiting Cameron "once a month for 1 hour."
Lastly, Mother failed to comply with the court's order to participate in random drug testing and to enroll in a drug program. Mother had provided Department with just one negative drug test.
The trial court denied Mother's section 388 petition. In regard to Cameron, it explained that it had originally terminated reunification services in May 2009 because of Mother's failure to comply with the case plan and that it appeared that nothing had significantly changed since then. In regard to Chloe, the court stated: "I'm not sure that Mother has presented a change in circumstance. She has not completed her case plan that the court initially ordered twice in this case. [¶] And clearly, there's been no presentation that it would be in Chloe's best interest at this time to reinstate reunification services [even] if the court could find a legal basis for doing it."
4. The Section 366.26 Hearing Terminating Parental Rights to Chloe
Department's reports considered by the juvenile court at the section 366.26 hearing indicated that Chloe was thriving under the care of her paternal grandparents. She had developed "a very strong bond" with them, referring to them as "mommy and daddy." "Developmentally," she was "on target with meeting milestones," had "good social interactions skills" and was "mentally and emotionally stable." While living with her paternal grandparents, Chloe had monthly visits with her siblings. The paternal grandparents had "adjusted their lives and living arrangements to meet" Chloe's needs and wanted to adopt her in order to "provide her with a healthy and safe home environment on a permanent basis."
At the section 366.26 hearing, Mother testified to support her claim that two exceptions existed to preclude termination of her parental rights to Chloe. Mother explained that Chloe had lived with her for a year and a half after she was born. Chloe shared a room with Cameron and Christian. The three children did "everything" together and the two boys helped to take care of their infant sister. During that period, Mother and Gregory G. were responsible for Chloe's daily care.
Since Chloe's removal from Mother's custody and placement with the paternal grandparents in November 2008, Mother had seen Chloe on only two occasions. Mother believed that Chloe knew she was her mother because during one visit, Mother asked Chloe if she knew her name and Chloe responded "Mommy." Mother claimed that she went to meet Chloe for visits on 11 other occasions but that on each occasion, "they [the paternal grandparents and Chloe] didn't show up." According to Mother, the paternal grandparents were not cooperative in arranging her visits with Chloe. Mother further testified that that on another 11 occasions, she "didn't have money to go out there" to meet them.
Mother also blamed the social worker for the lack of visits between Chloe and her two brothers. Mother claimed that Chloe had not seen either Cameron or Christian since November 2008 although Department's report indicated Chloe had 11 visits with her siblings since that date.
After hearing argument from counsel, the court terminated Mother's parental rights to Chloe, finding no exception to be applicable. It explained:
"The court finds by clear and convincing evidence that [Chloe] is adoptable. The court finds it would be detrimental to return [her] to [Mother]. The court finds that no exception to adoption applies in this case.
"For the record, as to the regular visitation and the continuing benefit of a relationship, the court notes that for large periods of time, [Mother has not] visited.
". . . . I have made every effort in this case to make visitation happen. But [Mother has not] been consistent. I listened to [her testimony], and [she has] an excuse why everybody else is responsible for [her] failure to visit.
"The court finds that there has not been consistent visitation, and Chloe has been out of the home for one year and ten months. . . .
"And this is a two-prong test: one is that there's consistent visitation, and, two, the benefit of continuing a relationship.
"[Mother has not] shown that there's been consistent, regular visitation in the two years that this child has been out of the home even before we get to the issue of the benefit of continuing a relationship.
"Now, as to the substantial interference with a sibling relationship, currently as it is, very limited visitation is happening between the siblings. But this is a family placement. And there is no information that legal guardianship [of Christian] or [eventual] adoption [of Cameron] is going to affect visitation between these parties.
". . . [A]lthough Chloe resided with her brothers for the first year and a half of her life, she has been out of the home for a
substantial period. And so the court finds that neither exception applies in this case."
This appeal by Mother follows.
DISCUSSION
A. Denial of the Section 388 Petition
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner [here, Mother] establishes by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both a '"legitimate change of circumstances"' and that undoing the prior order would be in the best interest of the child. [Citation.] The petition is addressed to the sound discretion of the juvenile court, and its decision will not be overturned on appeal in the absence of a clear abuse of discretion. [Citation.]" (In re S.J. (2008) 167 Cal.App.4th 953, 959-960.)
Mother urged that there was a change of circumstances because six months earlier, she had completed a parenting and anger management class and had commenced individual counseling. Markedly absent from Mother's petition was any indication of how many sessions of individual counseling she had attended or what specific progress she had made in addressing the issues that had triggered juvenile court jurisdiction: physical abuse of her children and cohabiting with a man who physically abused her and one of her children. Department's evidence indicated that Mother's participation in individual counseling was still erratic. In sum, Department had been offering Mother services since 2006 but she had failed to complete the case plans and had failed to reunify with any of her children. Based upon this record, the juvenile court did not abuse its discretion in implicitly finding Mother's showing of changed circumstances to be inadequate.
As for whether modification of the prior court orders would be in the best interest of Cameron and Chloe, Mother offered no evidence to support her conclusory allegation that her "family [was] closely bonded" and would benefit from further reunification services. In fact, the evidence supported the contrary conclusion. In January and February 2010, Mother visited Cameron only nine times although Department had scheduled 24 visits for that time period. And that contact with Cameron did not prove a close family bond but, instead, suggested that she was a negative influence on him because his anti-social behavior escalated after her visits and phone calls. In regard to Chloe, Mother visited her only once after reunification services were ordered in April 2009. Mother did not see her again until a year later after Department arranged for weekly meetings. But Mother did not take advantage of those scheduled meetings, choosing instead not to visit her daughter. Although Mother attempted to blame the social worker and the paternal grandparents for the lack of visitation, the juvenile court implicitly resolved that issue against Mother in denying the section 388 petition, a ruling that on these facts cannot be considered an abuse of discretion. (See, e.g., In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 [it is the juvenile court's exclusive role to assess and decide the credibility of a witness].)
Further, because the focus of the dependency proceedings had now shifted from reunification to the two children's need for a stable and permanent home (In re Casey D., supra, 70 Cal.App.4th at p. 48), the juvenile court could reasonably conclude that granting Mother's request either for further reunification services or for return of the children to her custody was not in the children's best interests. Mother's interactions with or failure to visit Cameron only increased the anti-social conduct of this emotionally disturbed and special needs child. Mother barely visited with Chloe although she had had multiple opportunities to do so. In the interim, Chloe's paternal grandparents had developed a significant relationship with Chloe such that they wanted to adopt her. Given this record, the juvenile court's denial of Mother's section 388 petition was not an abuse of discretion.
B. Termination of Parental Rights to Chloe
Mother challenges the sufficiency of the evidence to support the juvenile court's findings that neither the beneficial parent-child relationship nor the sibling relationship applied to preclude termination of her parental rights to Chloe.
"'Adoption, where possible, is the permanent plan preferred by the Legislature.' [Citation.] If the court finds a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the minor under one of the specified exceptions. (§ 366.26, subd. (c)(1).) The parent has the burden to show termination would be detrimental to the minor under one of those exceptions. [Citation.]" (In re Valerie A. (2007) 152 Cal.App.4th 987, 997.)
On appeal, "[w]e review the trial court's findings for substantial evidence. [Citation.] We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. . . . [¶] . . . The appellant [here, Mother] has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citations.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) In this case, we conclude substantial evidence supports the juvenile court's findings.
Mother's briefs place great reliance on the following statement made by the three children's counsel at the section 366.26 hearing. Counsel stated that, notwithstanding the paternal grandparents' wish to adopt Chloe, he "recommend[ed] legal guardianship because of the relationship and bond that Chloe has with her Mother . . . as well as her siblings who are placed separately." Mother's citation to this statement to prove that a bond existed between Chloe and her mother and brothers is misplaced. "It is axiomatic that the unsworn statements of counsel are not evidence. [Citations.]" (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.) Here, the evidence presented to the juvenile court at the 366.26 hearing consisted of Department's reports and Mother's testimony. That is the evidence we review to determine if substantial evidence supports the court's findings.
1. The Beneficial Parent-Child Relationship Exception
Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." To establish this exception and "overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. [Citations.]" (In re Dakota H., supra, 132 Cal.App.4th at p. 229.)
Substantial evidence supports the trial court's decision that Mother failed to maintain regular visitation and contact with Chloe. By Mother's own admission, she had visited Chloe only twice between November 2008 and July 2010. Mother attempted to shift the blame for that failing to Department and the paternal grandparents. But Department produced evidence, in the form of its reports, that it consistently made efforts to arrange meetings, that the paternal grandparents cooperated in those efforts, and that Mother was responsible for the lack of meetings. The juvenile court, after reviewing Department's reports and listening to Mother's testimony, explicitly rejected Mother's claim that either Department or the paternal grandparents were at fault on that issue. Mother's appeal essentially asks us to reweigh that conflicting evidence and to reach a contrary conclusion. We cannot and will not do that. "It is not our role to interfere with the trial court's assessment of the witnesses' demeanor and credibility." (In re Naomi P. (2005) 132 Cal.App.4th 808, 824.)
In addition, Mother offered no evidence that either her living with Chloe when Chloe was an infant or her two visits with Chloe since Chloe's removal from her home had created a relationship of "substantial, positive emotional attachment such that [Chloe] would be greatly harmed" by terminating Mother's parental rights. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) At best, Mother established that she (along with Gregory G.) helped to care for Chloe for 18 months after her birth and thereafter had visited her twice. While "[i]nteraction between [a] natural parent and child will always confer some incidental benefit to the child[,] . . . [t]he exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Ibid.)
In conclusion, the juvenile court was presented with a mother who took little interest in her infant daughter after she was removed from her. The child (Chloe) was now flourishing in the home of her paternal grandparents. Given the overarching principle that the juvenile court must select adoption as the permanent plan if the child will not suffer great detriment by termination of parental rights (see In re Casey D., supra, 70 Cal.App.4th at pp. 50-52), we conclude that substantial evidence supports the court's decision that the beneficial parent-child relationship exception did not apply to preclude termination of Mother's parental rights to Chloe.
2. The Sibling Relationship Exception
The sibling relationship exception to termination of parental rights is found in section 366.26, subdivision (c)(1)(B)(v). It applies if: "There would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption."
"When considering the sibling relationship exception, the concern is the best interests of the child being considered for adoption [here, Chloe], not the interests of that child's siblings. 'The [juvenile] court may reject adoption under this sibling relationship provision only if it finds adoption would be detrimental to the child whose welfare is being considered. It may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling.' [Citation.]" (In re Naomi P., supra, 132 Cal.App.4th at p. 822, italics added.)
In this case, Mother produced scant evidence of any relationship between Chloe and her two brothers that would be substantially interfered with to Chloe's detriment if Chloe was adopted by her paternal grandparents. Chloe had lived with her brothers for only the first 18 months of her life, a time during which her ability to develop a relationship with them was, at most, minimal. (See In re Valerie A., supra, 152 Cal.App.4th at p. 1013 [interaction between an infant or toddler and her older siblings is not necessarily meaningful].) In any event, since living with her paternal grandparents, Chloe had regularly visited with her brothers. Termination of Mother's parental rights did not necessarily foreclose continuation of the sibling relationships. In sum, substantial evidence supports the juvenile court's decision that the sibling relationship exception did not apply.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.