From Casetext: Smarter Legal Research

In re R.M.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 19, 2012
B235219 (Cal. Ct. App. Jan. 19, 2012)

Opinion

         NOT TO BE PUBLISHED

         APPEAL from orders of the Superior Court of Los Angeles County, No. CK38418, Marilyn K. Martinez, Judge.

          Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant.

          Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.


          KLEIN, P. J.

         In this dependency proceeding, A.M. (father) appeals an order terminating his parental rights with respect to R.M. (Welf. & Inst. Code, § 366.26.) Father also appeals an order denying a petition for modification. (§ 388.) We reject father’s claim the juvenile court erroneously entered these orders.

Subsequent unspecified statutory references are to the Welfare and Institutions Code.

         FACTS AND PROCEDURAL BACKGROUND

         1. Detention.

         On January 12, 2009, the Department filed a petition alleging R.M. came within the provisions of section 300, subdivision (b), in that she was born testing positive for amphetamine, mother had a long history of substance abuse and mother failed to reunify with R.M.’s three older siblings after they were removed from mother’s care.

         On March 11, 2009, the court sustained the dependency petition. The social worker thereafter located father in prison. On April 2, 2009, father told the social worker he grew up suffering physical, emotional and sexual abuse, he left home at 17 years of age and committed crimes to support his crack cocaine habit and, for the past 18 years, father has been in and out of jail.

         On April 8, 2009, the juvenile court denied family reunification services for mother but granted father monitored visitation.

         2. Subsequent petition filed.

         Father was released from custody on April 16, 2009. The Department filed a subsequent petition alleging father had a history of drug use and felony convictions for drug related offenses, receiving stolen property and petty theft while a prisoner in jail, and that father was unable to provide for R.M.’s care.

         On May 7, 2009, the juvenile court sustained the subsequent petition, ordered the Department to provide father reunification services and ordered R.M. placed with maternal great aunt.

         1. Father’s lack of progress results in an order setting a permanency planning hearing.

         On November 5, 2009, the Department reported father recently had moved into an apartment with his fiancée, P.A. Father enrolled in an outpatient drug treatment program in July of 2009 and began individual therapy in October of 2009. The results of the drug tests father submitted were negative. However, father failed to appear for four drug tests.

         Regarding visitation, the social worker reported R.M. was “gradually developing a relationship with her father.” Father stated he loved R.M. and wanted to be her primary caretaker. The report indicated R.M. was “highly adoptable.”

         On November 5, 2009, the juvenile court granted father unmonitored day visits.

         On May 6, 2010, the Department reported father’s visits with R.M. had “promoted a strong attachment between father and daughter.” Father continued to live with P.A., who was pregnant with his child. However, in April of 2010, P.A. stated she and father “were done.” Also, father failed to appear for a drug test on April 16, 2010, and on April 7, 2010, father submitted a diluted specimen.

         On July 8, 2010, the Department reported father had been arrested on July 3, 2010, for trying to cash checks belonging to someone else. Also, father’s visitation had become inconsistent. Father cancelled and changed the visitation times, failed to appear for visits and no longer telephoned during the week.

         At the contested review hearing, the juvenile court noted father had stopped complying with the case plan, he “stopped verifying a sober lifestyle, ” and he stopped visiting regularly. The juvenile court terminated family reunification services and set a permanency planning hearing under section 366.26.

         R.M. was removed from the care of maternal great aunt and was placed in foster care.

         2. Section 300 petition filed with respect to R.M.’s infant sibling, F.M.

         In September of 2010, mother tested positive for methamphetamine at the birth of F.M., R.M.’s infant sibling. The Department filed a dependency petition alleging F.M. was at risk of harm in mother’s care.

         A social report dated October 27, 2010, indicated R.M. had been placed with F.M.’s foster parents. However, they did not wish to adopt both children. Father visited R.M. four times between May and October of 2010.

         On December 10, 2010, the juvenile court sustained F.M.’s dependency petition, denied mother reunification services and set a section 366.26 hearing in F.M.’s case.

         On February 28, 2011, the Department reported R.M. and F.M. twice had been placed together in prospective adoptive homes but each placement had failed. The report indicated R.M. was in her fourth placement and F.M. was in his second. Father did not visit R.M. from October of 2010 until February 17, 2011.

         The juvenile court set a combined permanency planning hearing for both children.

         3. Social reports filed for the combined permanency planning hearing.

         On June 27, 2011, the Department reported the children had been placed in a prospective adoptive home on April 7, 2011. The prospective adoptive parents had an approved home study and they wished to adopt both children, who were thriving in their case. The report stated: “The children have known their prospective adoptive parents since March of 2011 and are bonded with them.” The “prospective adoptive parents have expressed without any second thoughts, their desire to adopt and provide both [children] with a forever home where they will be loved equally.” R.M. is attached to F.M. and it “would be detrimental to separate the two siblings for any reason[].”

         As of February 17, 2011, father had weekly monitored visitation at the Department’s office. However, R.M. had to be redirected to engage with father as she migrated to her prospective adoptive parents, who monitored the visits.

         4. Father’s section 388 petition.

         On June 27, 2011, father filed a section 388 petition as to R.M. requesting reinstatement of family reunification services and unmonitored visitation. The petition alleged father had been participating in a residential drug rehabilitation facility since February 3, 2011, he had been attending all of his meetings and his drug tests had been negative. He also was enrolled in a computer program at UEI College and was an outstanding student. The petition asserted father was eager to change his life to better parent R.M. and he had a strong bond with her which he was determined to maintain. Also, R.M. was bonded to father, recognized him, enjoyed the time they spent together and was responsive in telephone conversations.

         Attached to the petition was a letter from Neli Carceres-Mendez, father’s instructor at UEI. Mendez had known father “for quite some time” and he had been her student since April 19, 2011. Father had earned the privilege to act as classroom technical support and was working as a computer repair technician. Mendez was confident father would succeed and was willing to have R.M. in her home until father could prove to the court he was a suitable parent. Mendez stated she would support father in whatever he needed to do.

         Also attached to the petition were letters from father’s program which indicated the program consists of three phases and lasted between three and 18 months. As of June 24, 2011, father was in full compliance with the program requirements.

         5. Father’s section 388 petition set for contested hearing.

         On June 27, 2011, R.M.’s counsel asked the juvenile court not to terminate parental rights because R.M. only recently had been placed with her prospective adoptive parents. Counsel further indicated father had stated to counsel in the past his willingness to take both children. The juvenile court found sufficient evidence to set a hearing and ordered father to return on July 25, 2011, “not only for the [section] 388 petition, [but also] for the ongoing consideration of termination of parental rights.”

         6. Social reports filed for the combined hearing.

         The Department’s report filed in response to father’s petition indicated father’s program did not allow children to reside there. Also, father’s instructor, Mendez, had known father as an acquaintance through her deceased husband and “started talking” to father only after he began attending her classes in April of 2011.

         In an interview, father admitted he relapsed in July of 2010 when reunification services were terminated in R.M.’s case. Father stated he was grateful for the care the prospective adoptive parents were providing R.M. and acknowledged R.M. was in a good home. The report indicated father recognized “his daughter does not respond or go to him during his scheduled weekly visits because of his inconsisten[t visitation in the past].” Father acknowledged this may have caused R.M. to regress and to be withdrawn from father. After R.M. was placed with her prospective adoptive parents, father visited on May 12, 19, 26, June 2 and 16, and July 14, 2011, but failed to visit on April 28 and May 5, 2011, due to schedule conflicts, and he cancelled visits on June 9, 23 and 30, and July 7, 2011.

         The report indicated father has an older son with whom he has no contact and an eight-month-old child with P.A., as to whom father assertedly was trying to establish visitation. The social worker believed it would be detrimental to separate R.M. from her brother, noting R.M. is a loving and protective sister and she is bonded with her prospective adoptive parents. R.M. had been traumatized by repeated replacement and she was “becoming less fearful of the possibility of being tak[en] from [a] couple that loves and cares for her unconditionally.” The report noted R.M. had “flourished” with her prospective adoptive parents. The Department concluded placement of R.M. with Mendez would not be in R.M.’s best interests and unmonitored visitation was “ill advised, ” given father’s lack of consistency or progress in monitored visitation.

         7. Combined hearing of July 25, 2011.

         On July 25, 2011, the juvenile court called the matter for a permanency planning hearing as to R.M. and F.M., and a contested hearing on father’s section 388 petition. When father’s counsel requested return of R.M. to father, the juvenile court noted father’s program did not permit children. Father’s counsel believed that issue could be resolved and alternatively requested reunification services and liberalized visits. Father’s counsel asserted father “does want the possibility to take both [children] as a sibling pair” and he was “willing to possibly reunite and pursue custody of [F.M.] as well....”

         The juvenile court found father had shown changed circumstances in that he was in a residential program and he “has had five months now of good progress in a home.” However, father failed to show the requested change of order was in R.M.’s best interest. R.M. had an opportunity with her younger brother to have the permanence of adoption and the parental relationship she had with father did not promote R.M.’s well-being to such an extent as to outweigh the benefit she would gain in a permanent home with adoptive parents. The juvenile court noted father had missed many monitored visits and, in any event, weekly monitored visitation was insufficient to avoid termination of parental rights. Although father had been making progress, it was “too little and too late to persuade this court that it is in the child’s best interests to delay her opportunity to have permanency.”

         As to the section 366.26 issues, father’s counsel requested a hearing to contest the recommendation. When the juvenile court requested an offer of proof, father’s counsel asked that R.M. be present in court, even if only to demonstrate the special bond she and father had through her interaction with father. Counsel also indicated father could testify about how he “provides to his daughter during their visits and the time they spend together.”

         The juvenile court denied the request to set a contested hearing, finding the offer of proof insufficient to show a reasonable likelihood father could establish it would be detrimental to R.M. to terminate parental rights. “The issue is not whether the father has a bond with the child.” The juvenile court called father a “visitor” who had missed about 40 percent of his scheduled visits. The juvenile court concluded father “did not occupy a parental role” and continuing the parental relationship would not promote R.M.’s well-being to such a degree as to outweigh the well-being she would gain through adoption. The juvenile court found both children were likely to be adopted and terminated parental rights.

         CONTENTIONS

         Father contends the denial of his section 388 petition was an abuse of discretion and the denial of a contested permanency planning hearing violated father’s right to due process.

         DISCUSSION

         1. Father failed to demonstrate R.M.’s best interests would be promoted by the proposed change in order.

         Father contends he proved changed circumstances and that further reunification efforts would promote R.M.’s best interests. Father claims he was in compliance with the case plan and he wanted to take custody of both R.M. and F.M. as a sibling pair. Father notes Mendez was willing to have R.M. and F.M. in her home until father could prove to the court that he was a suitable father and she supported him in whatever he needed to do. Father argues reinstatement of reunification services would provide R.M. the opportunity to maintain her relationship with father, preserve her sibling relationship and obtain stability and permanence in a family unit. Thus, it was an abuse of discretion to deny father’s 388 petition.

         A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317.) The petitioner bears the burden to show both a change of circumstances and that undoing the prior order would be in the best interest of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) 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. (Stephanie M., supra, at p. 318.)

         Moreover, the petition must be considered in the context of the dependency proceeding as a whole. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) After termination of family reunification services, the focus shifts from reunification to stability, continuity and permanency for the child. (Id. at p. 309.)

         Here, given that two previous prospective adoptive placements of the siblings had failed, the juvenile court reasonably concluded that reinstating services for father in the hope of reunification would unnecessarily postpone stability for R.M. and would jeopardize R.M.’s prospective adoptive placement with her sibling, F.M. The reports uniformly indicated R.M. was bonded to F.M. and her prospective adoptive parents.

         Although father had entered a residential drug treatment program to address his drug addiction, he remained unable to care for R.M. Father claims he offered to assume custody of both children. However, his residential program, which lasted up to 18 months, did not accept children. Further, Mendez’s letter mentioned only R.M. and all other references to father’s willingness to assume custody of both children were made by counsel.

         In any event, father failed to establish that depriving R.M. of a permanent, stable home with her sibling in exchange for an uncertain future would promote her best interests. Clearly, removal of either child from their prospective adoptive parents for placement with Mendez would not promote the best interests of the children. Rather, granting father’s petition would unnecessarily delay permanency and disrupt R.M.’s newfound sense of security.

         In sum, father fails to demonstrate error in the denial of his section 388 petition.

         2. The juvenile court committed no error or denial of due process in refusing to grant father a contested hearing on the beneficial relationship exception.

         a. Legal principles.

         If a dependent child is adoptable, the juvenile court must terminate parental rights at a section 366.26 hearing, unless the parent establishes the existence of a statutory exception. (§ 366.26, subd. (c)(1).) One such exception arises if “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subds. (c)(1)(B), (c)(1)(B)(i).) To determine whether the beneficial relationship exception applies, the juvenile court “balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

         “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The burden is on the parent to establish the existence of one of the circumstances that are exceptions to termination. (In re Thomas R. (2006) 145 Cal.App.4th 726, 731.)

         b. Father’s argument.

         Father contends he should not have been required to make an offer of proof. However, the evidence father offered, namely, evidence of the extremely special bond he shared with R.M. to prove the application of the beneficial relationship exception, was sufficient to warrant a hearing. Father’s asserts there was a factual dispute as to the nature of R.M.’s relationship with father, noting the social reports indicated R.M. was indifferent to father during visits. Father claims the denial of a hearing to contest this disputed fact was prejudicial and violated his due process rights. (See In re Dolly D. (1995) 41 Cal.App.4th 440, 446.)

         c. Analysis.

         As father acknowledges, case law indicates a juvenile court may require an offer of proof before setting a contested section 366.26 hearing on whether the parent can establish facts giving rise to the beneficial relationship exception to termination of parental rights. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1121.) We agree with the cited case.

         Further, accepting father’s offer of proof as true, the evidence supports the order terminating parental rights. As the juvenile court indicated, father was a visitor, he did not occupy a parental role in R.M.’s life, he had not progressed beyond monitored visitation and he had missed many scheduled visits. Father offered to prove he and R.M. enjoyed a special bond which was worthy of protection by having the juvenile court observe R.M.’s interaction with father in court. However, there is no reasonable probability that observation of the parent-child bond would have persuaded the juvenile court that father had met his burden of proving application of the beneficial relationship exception.

         “To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) The exception requires proof of “a parental relationship, ” not merely a relationship that is “beneficial to some degree but does not meet the child’s need for a parent.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Indeed, the beneficial relationship exception is “difficult to make in the situation, such as the one here, where the parents have [not]... advanced beyond supervised visitation.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)

         Here, father did not show the parental relationship outweighed the well-being R.M. would gain in an adoptive home. R.M. had never lived with father, he failed to visit for much of the dependency proceedings, he had failed to advance beyond monitored visitation and, as the juvenile court noted, even after father resumed visitation in February of 2011, he missed many visits. Thus, nothing in the record or father’s offer of proof indicated R.M. would be greatly harmed if her relationship with father were severed. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

         In sum, the juvenile court’s denial of father’s request for a contested hearing was not an abuse of discretion or a denial of due process and substantial evidence supports the juvenile court’s conclusion the beneficial relationship exception did not apply.

         DISPOSITION

         The orders of the juvenile court are affirmed.

          We concur: CROSKEY, J., KITCHING, J.


Summaries of

In re R.M.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 19, 2012
B235219 (Cal. Ct. App. Jan. 19, 2012)
Case details for

In re R.M.

Case Details

Full title:In re R.M., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

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

Date published: Jan 19, 2012

Citations

B235219 (Cal. Ct. App. Jan. 19, 2012)