Opinion
B230760 B231509
10-21-2011
In re K.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.L., Defendant and Appellant. In re K.S. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. KA.S., Defendant and Appellant.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant D.L. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Ka.S. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK73288)
APPEAL from orders of the Superior Court of Los Angeles County, Margaret Henry, Judge Affirmed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant D.L.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Ka.S.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel for Plaintiff and Respondent.
INTRODUCTION
D.L. (Mother) appeals from orders terminating parental rights and denying her Welfare and Institutions Code section 388 petition. Because Mother did not show changed circumstances, or that setting aside the prior order, placing the children in her home, and granting her further reunification services would be in the children's best interests, denial of the petition was not an abuse of discretion. We also find that Mother has not shown error in the finding that the "beneficial relationship" exception of section 366.26, subdivision (c)(1)(b)(i) did not apply. We affirm the orders.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
Ka.S. (Father) also appeals from the order terminating parental rights, arguing that if this court reverses the order terminating Mother's rights, it should also reverse the order terminating Father's rights. Affirmance of the order terminating Mother's parental rights affords no basis for reversing the order terminating Father's parental rights, and we affirm that order.
FACTUAL AND PROCEDURAL HISTORY
Detention and Section 300 Petition: On June 10, 2008, three-year-old K.S. and six-month-old Ke.S. were detained when Mother took Ke. to a fire station and told firefighters she could not afford Ke. and wanted to give her up for adoption. Mother stated that her mother beat her and her father raped her, causing her to be unable to care for Ke. and she did not want Ke. to grow up in the home environment she grew up in. It was later learned that Mother's father was deceased, and only she and maternal grandmother lived with the children. Ke. was taken to Harbor UCLA Hospital, was found to be well cared for, and showed no signs of abuse. Ke. was placed in a foster home. On June 11, 2008, a DCFS social worker met with Mother, K., and maternal grandmother. Mother said she was educationally and financially stressed out, wanted to return to school, and was upset with maternal grandmother, which is why she decided to teach maternal grandmother a lesson and take Ke. to the fire station. Mother now stated it was a big misunderstanding and she wanted Ke. back. Mother said that Father did not want anything to do with his children.
Maternal grandmother indicated a history of domestic violence between Mother and Father, and had concerns about Mother's possible drug use. Mother confirmed her previous marijuana use. Mother had a previous substantiated referral for general neglect of K., and a prior voluntary family maintenance case from July 18, 2005 to June 1, 2006. Mother was a former dependent child of the juvenile court and participated in a voluntary family reunification case with maternal grandmother from May 25, 2005 to June 1, 2006. Father indicated he was the biological father of K. and Ke.
On June 13, 2008, the Department of Children and Family Services (DCFS) filed a section 300 petition alleging that K. and Ke. were children described by section 300, subdivision (b) [parent's failure to protect] and (g) [no provision for support], in that Mother placed Ke. in an emotionally detrimental situation by leaving the child at the fire station in order to teach maternal grandmother a lesson, requesting Ke. be placed for adoption, and using the child as a pawn in the domestic dispute between herself and maternal grandmother; that Mother had a history of illicit drug abuse; and that Father failed to provide the children with the necessities of life.
On June 13, 2008, the juvenile court found Ka.S. to be the alleged father of the children, found a prima facie case for detaining them as persons described by section 300, subdivisions (b) and (g) was established, and ordered them detained.
Adjudication and Disposition: Mother admitted leaving Ke. at the fire station, but now rejected adoption and wanted Ke. back. Mother stated that she and maternal grandmother had always had problems. Mother said she and Father were not together, and that she had to beg him for money to buy milk and things for the children. She and Father did not get along, argued about the children, and had pushed and shoved each other in some of those arguments, although Mother said Father never punched her and she had no bruises.
Father felt Mother had mental health problems. He and Mother no longer spoke. He disputed Mother's statement that he did not provide for his children, and said he gave them money when they called. Father, however, said he could not care for the children and his home was not suitable for them. Father wanted the children placed with a relative. Father rented part of a property used by several other families, in an unsafe area where illegal narcotic sales occurred. The CSW assessed Father as concealing the source of his income, as not forthcoming about what he did for a living, and as suspected of being involved with illegal activities.
Maternal grandmother reported that Father periodically assisted financially with the care of the children, but said she was the children's primary caregiver. Maternal grandmother suspected that Father sold drugs for a living.
Mother had monitored visitation, but visited minimally with the children. Father had not visited the children since they were detained and placed.
At the adjudication and dispositional hearing, the juvenile court sustained the allegations of the section 300 petitions, found that Ke. and K. were children described by section 300, subdivisions (b) and (g), declared them dependent children of the court, and ordered custody taken from Mother and placed in the care of the DCFS. The juvenile court ordered the DCFS to provide reunification services to Mother and to make a referral for the Department of Mental Health for evaluation, and ordered Mother to participate in that evaluation, individual counseling, parent education, and one on-demand drug test The juvenile court also ordered the DCFS to provide reunification services to Father and ordered him to participate in parent education and individual counseling to address his criminal lifestyle and history. The juvenile court ordered monitored visits for the parents.
Six-Month Review Hearing:On October 23, 2008, the DCFS reported that Ke. and K. were placed with a maternal great aunt. Mother maintained monitored visits at least once a day and was employed at a local supermarket. Mother attended adult school, but had not provided the CSW with an address and phone number to verify the information. Mother also said she attended Augustus Hawkins Mental Health for counseling, but did not provide information about her progress or identify her counselor. Mother drug tested negative on July 30, 2008.
Father strongly felt he had not caused the family's involvement with the DCFS. Father felt that because he had no criminal history he did not need to attend court-ordered counseling. Father last visited his children on September 12, 2008.
On January 22, 2009, the DCFS reported that Mother continued to progress toward reunification with her children. In November, however, some women attacked Mother at her job and broke out the windows on her vehicle. Since then Mother had remained in a depression, quit her job, did not seek other employment and did not want to go out in public. Mother had no current counseling sessions. Since the incident in November Mother was not motivated to visit her children.
On February 5, 2009, the DCFS reported that on October 20, 2008, Mother had intake at Dicta Health Services, and attended weekly groups and individual counseling once a month, which could include parenting. Mother said that because of maternal great aunt's schedule she had not visited the children as often as she would like. The CSW had no contact with Father.
On February 13, 2009, the DCFS reported that Mother completed four weeks of parenting education, and four more weeks of parenting should be sufficient. Mother was consistent with her program. Father resisted counseling, had not complied with his case plan, and had seen his children only twice since they were detained.
At the six-month review hearing on February 27, 2009, the juvenile court found Mother in partial compliance with her case plan and ordered family reunification services for Mother only. The juvenile court found Father not in compliance with his case plan, and ordered family reunification services terminated for him.
Twelve-Month Review Hearing: The DCFS reported that the children were placed with Trina L., their former day-care provider. Mother completed her mental health evaluation and parenting class and drug tested negative on July 30, 2009. She participated in individual and group counseling sessions and had perfect attendance at Dicta Health Services, Inc. Mother moved to her own residence and looked for employment. Mother regained her motivation to reunify with her children, showed emotional growth and maturation, and assembled a support group to support her getting her children back. Mother visited unmonitored since February 2009, and had unmonitored weekend visits since March 13, 2009. Those visits went well, and caused a positive change in the children. Father had no contact with the children since his sole monitored visit on March 5, 2009. The DCFS recommended return of the children to Mother and family maintenance services.
On August 28, 2009, the juvenile court found Mother in compliance with her case plan, ordered a permanent plan of return to Mother's home, K. and Ke. placed in Mother's home under DCFS supervision, and the DCFS to provide family maintenance services and to refer the family to family preservation, and ordered the DCFS to provide and Mother to continue to participate in services.
Second Detention and Section 342 Petition: On February 26, 2010, the DCFS reported that when Mother's lack of success in finding employment caused her to become frustrated and discouraged, she secured the safety of her children with her day care provider, Trina L. In the previous two months Mother was not as motivated as previously. The DCFS was not concerned with the children's safety, but requested more time to assess Mother and her ability to become more independent, and requested that Mother become more involved with K.'s schooling, address her current mental health status through counseling, and become more proactive in her life. The CSW had no contact with Father regarding his visitation.
On March 19, 2010, the DCFS reported that by October 20, 2009, Mother had completed required classes in alcohol and drugs, parenting, anger management, and individual sessions, and showed excellent progress in her classes. Mother would continue to be provided with individual counseling for crisis intervention. On March 19, 2010, the juvenile court found continued jurisdiction necessary and set a review hearing for September 17, 2010.
Ke. and K. were again detained from Mother on August 31, 2010, after Mother had taken them to their childcare provider, Trina L., initially for a few days. Those few days turned into months, and Mother felt the children were safe and she did not return for her children. Mother attended sessions with her therapist only twice in the previous six months. Mother made statements such as "these are not my children," "I am not the mother of these children," "Who am I," and "these children did not come from me and/or they do not belong to me." Mother was not able to provide the children with adequate child safety due to many strangers, drug users, and mentally unstable persons who frequented her home at all times of the night and day. Mother admitted being very violent toward others, including her own mother. Mother also reported violent acts against her by Father, whom she allowed into her home frequently. Mother's actions brought her mental health into question, and endangered the children.
On September 3, 2010, the DCFS filed a section 342 petition alleging that Ke. and K. were persons described by section 300, subdivision (b) [children risked serious physical harm or illness from Mother's failure or inability to supervise or protect them and from her willful or negligent failure to provide adequate food, clothing, shelter, or medical treatment] and (g) [children left without provision for support]. The juvenile court found that a prima facie case was established for detaining the children as persons described by section 300, subdivisions (b) and (g), ordered them detained, and placed them with Trina L. Mother was to have monitored visitation.
Adjudication and Disposition: The DCFS reported that Mother said she thought she signed her rights away regarding Ke. and K., and she would now seek mental health treatment because she loved her children. Mother also said that on a visit she was very happy to hear Ke. call her "mommy" and run to her as though she was happy to see her. Mother changed her mind and wanted the children back in her care. Mother said she was in love with Mayfield, a male companion who had mental health issues.
Mother reported many incidents of domestic violence between herself and Father, but said the children were not present and were asleep or at their grandmother's house. Father reported that he lived with Mother and the children before and after the children were returned to her care, until December 2009, when Mother alleged that he and his girlfriend had raped, kidnapped, and beat her. Father said after that the police were looking for him and he had to stay away. Father said he and Mother were "into it a lot," that Mother did things to harm herself, used alcohol, and said and did "weird things." Father had not visited the children since December 2009.
Maternal grandmother stated that Mother heard voices and said people were touching her. Maternal grandmother stated that Mayfield had mental health issues because she saw him grab a stick and tell Mother he would bust her head in.
K., now six years old, said that he knew his mother was sick.
On September 24, 2010, the juvenile found that the children were persons described by section 300, subdivision (b), and sustained the allegation that Mother placed the children in the care of an unrelated adult without making an appropriate plan for their care and supervision, and failed to provide the children with the necessities of life, which endangered their physical and emotional health and safety. The juvenile court ordered family reunification services terminated for Mother and for Father, ordered the permanent plan of adoption, and set the matter for a section 366.26 permanent plan hearing on January 7, 2011.
Parents' Section 388 Petitions:On January 4, 2011, Father filed a section 388 petition requesting reinstatement of reunification services and unmonitored visits. Father's petition alleged that on December 6, 2010, he enrolled and participated in a drug and alcohol program, individual counseling, parenting and anger management, relapse prevention, and "ca/aa," and regularly visited his children. The DCFS response reported that Father visited the children twice since they were redetained, and he had not contacted the DCFS to arrange visits or to complete his court-ordered services. Father had not assisted the children with support, and showed no interest in them while they were with Mother. No bond appeared to exist between him and the children, who knew who their father was but made no requests to visit with him.
On January 19, 2011, Mother filed a section 388 petition requesting that the juvenile court order custody of the children with her, or take the section 366.26 hearing off calendar and order six months of family reunification services for her. Mother's petition alleged that she had consistently visited her children, enrolled in substance abuse, parenting, and individual counseling as of January 4, 2011, and attended classes three times a week.
Section 366.26 Hearing:As of January 7, 2011, the DCFS reported that Mother consistently visited the children every Sunday. Father scheduled visits, although the caregiver, Trina L., asked that Father visit only when the caregiver's significant other was present. Trina L. wanted to adopt the children. The adoption home study for Trina L. was approved on January 20, 2011.
On January 28, 2011, the juvenile court denied the section 388 petitions filed by Mother and by Father. Both Mother and Father argued that the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) applied. The juvenile court found that there had not been consistent contact and visitation, and no bond that would outweigh the benefits of adoption, necessary to establish the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i). The juvenile court found that it would be detrimental for the children to be returned to the parents, ordered parental rights terminated, and ordered the permanent plan of adoption and a specific goal of adoption as the permanent plan for the children.
Mother and Father filed timely notices of appeal.
I. Mother's Appeal
ISSUES
Mother claims on appeal that the juvenile court:
1. Erroneously denied her section 388 petition because there were changed circumstances and granting the petition was in the children's best interest; and
2. Erroneously found that the section 366.26, subdivision (c)(1)(B)(i) exception to termination of parental rights did not apply.
DISCUSSION
A. Denial of Mother's Section 388 Petition Was Not an Abuse of Discretion
Mother claims that her section 388 petition alleged changed circumstances—her enrollment in a substance abuse program, parenting classes, and individual counseling— and that granting the petition was in the children's best interests, and therefore the juvenile court erroneously denied the petition. We disagree.
1. The Standard of Review of an Order Denying a Section 388 Petition
"Under section 388, a parent may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that [(1)] there is a change of circumstances or new evidence, and [(2)] the proposed modification is in the minor's best interests." (In re S.M. (2004) 118 Cal.App.4th 1108, 1119.)
Once the juvenile court orders termination of reunification services, a rebuttable presumption arises that continued care is in the child's best interest. The focus shifts away from the precedence formerly given to the parent's interest in reunification and toward the child's need for permanency and stability. To revive the reunification issue, the parent bears the burden of rebutting the presumption by proving in a section 388 petition that changed circumstances warrant further consideration of reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.)
The petition is addressed to the sound discretion of the juvenile court, whose decision the appellate court will not disturb absent a clear abuse of discretion, defined as whether the juvenile court exceeded the bounds of reason. (In re S.M., supra, 118 Cal.App.4th at pp. 1119-1120.)
2. Mother Did Not Show Changed Circumstances
Mother's showing of changed circumstances was that as of January 4, 2011, she had enrolled in a substance abuse program, parenting class, and individual counseling, attended classes three times a week, and had very good attendance. Her counselor at Dicta Health Services, Inc. stated that Mother was due to complete her program on June 3, 2011. Thus the evidence showed that Mother had begun attending classes 15 days before filing the petition and 24 days before the juvenile court's ruling. Mother would not complete the classes for four months. At best, the evidence showed that Mother was beginning the process of changing, but did not show "changed" circumstances. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Casey D. (1999) 70 Cal.App.4th 38, 49.) The change of circumstances " 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.' " (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) Mother's evidence did not show changed circumstances, and denial of the petition was not an abuse of discretion.
3. Mother Did Not Show That Modification Would Be in the Children's Best Interests
Even if Mother had shown changed circumstances, she also had to show that setting aside the prior order, placing the children in her home, and granting her further reunification services would be in their best interests. (§ 388, subds. (a), (d); In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The child's best interests involve a consideration of: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Id. at p. 532.)
As to the first factor, the first detention of the children occurred after Mother left Ke. at a fire station and stated that she wanted to give up Ke. for adoption. The second detention occurred after Mother left Ke. and K. with their day care provider with no provision for their care and Mother denied that the children were hers. While she had custody of the children, Mother's deteriorating mental health and failure to obtain mental health services hindered her ability to care for them. Strangers, including drug users and mentally unstable individuals, frequented the home. Mother admitted being violent toward others, including her own mother. Mayfield, a male associate of Mother, threatened the maternal grandmother with physical harm and hit her on the head with an object, and Mother admitted participating in violent acts toward others while with Mayfield. Mother reported violent acts against her by Father, whom she allowed to live with her after the children were returned to her custody.
Mother's petition provided evidence only as to the second factor. It stated that return of the children to her home, or reinstituting family reunification services for six months, would be better for the children (who were attached to Mother because they were recently in her care) and would give the children the opportunity to return to their mother. The petition contained no evidence of the strength of relative bonds between the children to Mother and their caretaker. At the time of the second detention, six-year-old K. stated that he knew Mother was sick, and that he liked being at his caregiver's house. Ke., two years and ten months old, made no statement. The children had been dependent children for two and one-half years.
As to the third factor, Mother's petition stated only that 15 days earlier Mother had enrolled in a substance abuse program, parenting class, and individual counseling, attended classes three times a week, and had very good attendance. Mother was not due to complete the classes for more than four months. As the trial court found, at best Mother showed changing circumstances, not changed circumstances. Mother made no showing of the degree to which the problem that led to the dependency could be easily removed or ameliorated. As to the degree to which the problem actually had been removed or ameliorated, the evidence showed only that Mother was beginning that process, and was still far from completing it.
The juvenile court correctly found that Mother's petition did not meet her burden that the proposed modification was in the children's best interests, and that Mother had not proved that changed circumstances warranted further consideration of reunification. Denial of the petition was not an abuse of discretion.
B. Mother Has Not Shown Error In the Finding That the "Beneficial Relationship"Exception of section 366.26, Subdivision (c)(1)(B)(i) Did Not Apply
Mother claims that the juvenile court erroneously found that the section 366.26, subdivision (c)(1)(B)(i) exception to termination of parental rights did not apply. We disagree.
1. The Beneficial Relationship Exception to Termination of Parental Rights Pursuant to section 366.26, subdivision (c)(1), if the court determines "that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." This statute further states that "[a] finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered . . . shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies:
"[¶] . . . [¶]
"(B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:
"(i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Ibid.)
When contesting termination of parental rights based on the section 366.26, subdivision (c)(1)(B)(i) exception, the parent has the burden of showing either that (1) continuing the parent-child relationship will promote the child's well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with adoptive parents, or (2) termination of the parental relationship would be detrimental to the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "[T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (Ibid.) The biological parent must show more than that the child would derive some benefit from continuing a relationship maintained during parent-child visitation. A dependent child of the court "should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (Ibid.)
This court reviews a juvenile court finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply according to the substantial evidence test. (In re Dakota H. (2005) 132 Cal.App.4th 212, 227-228; In re Casey D., supra, 70 Cal.App.4th at p. 53.)
2. Mother Did Not Meet Her Burden of Showing Evidence of Regular Visitation and Contact With the Children
With regard to whether Mother maintained regular visitation and contact with the children, Mother had taken her children to a childcare provider in June 2010, where she felt the children were safe and did not return for the children for "months." From June to August 31, 2010, Mother had visited her children one time. As of September 22, 2010, Mother was stated to visit "minimally with her children." In the January 7, 2011, report, however, the children's caregiver stated that Mother visited her children every Sunday. Thus from June to September 22, 2010, Mother failed to visit consistently, although beginning some time after September 22, 2010, until January 7, 2011, Mother did visit consistently. The evidence is therefore mixed, but it cannot be said that Mother met her burden of showing regular visitation and contact.
3. Mother Has Not Shown That the Children Would Benefit From Continuing the Parent-Child Relationship
With regard to whether the children would benefit from continuing their relationship with Mother, the "benefit of relationship" test has several factors. "A beneficial relationship . . . 'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' [Citation.] The existence of this relationship is determined 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.' [Citation.]" (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) Although the statute does not define the exact nature of the parent-child relationship which must exist to trigger application of the statutory exception to terminating parental rights, "the relationship must be such that the child would suffer detriment from its termination." (In re Angel B., supra, 97 Cal.App.4th at p. 467.)
Shortly after their detention on August 31, 2010, the children were reported to state that they love their mother. K. stated that he wanted to live with their caregiver, Trina L., and with his mother when he was not with Trina L. He added that Trina L. treated him well, took him places, and let him play outside. The children were described as active, happy, and playful in Trina L.'s home. Trina L. stated that she had discussed a permanent plan for the children with Mother, who did not wish to continue to parent the children. On September 22, 2010, the children were reported to be thriving in Trina L.'s home. K. said he knew that his mother was sick, and that he liked being at Trina L.'s house.
On September 22, 2010, Mother reported she was happy to hear Ke. call her "mommy" and run to her as though she was happy to see her when Mother visited the children for the second time since she left them with Trina L. in June 2010.
As of January 7, 2011, Trina L. stated that she was very attached to and bonded with Ke. and K. It was reported that six-year-old K. stated that he liked his home. The DCFS reported on January 28, 2011, that K. and Ke. "continue to thrive in the home of prospective adoptive parent. The family appears to be bonded with each other."
With regard to the first two Amber M. factors, Ke., age six months, and K., age three years and eight months, was first detained from Mother on June 10, 2008, and were returned to mother's care on August 28, 2009. Mother had left the children with Trina L. in June 2010, where they remained until the January 28, 2011, hearing. Thus Ke., who was three years and two months old, had lived with Trina L. more than half of her life. K., who was six years and four months old, had lived with Trina L. for 21 of his 76 months of life.
There was evidence that Ke. had a positive interaction with Mother on September 22, 2010, but in the previous three months Mother visited the children only once, and on August 31, 2010, said she did not wish to continue to parent the children.
There was no evidence that Ke. or K. had particular needs that could be met by Mother but not by their caregiver Trina L.
Thus Mother did not meet her burden of showing either that (1) continuing the parent-child relationship would promote the children's well-being to such a degree as to outweigh the well-being the children would gain in a permanent home with an adoptive parent, or (2) termination of the parental relationship would be detrimental to the children. (In re Angel B., supra, 97 Cal.App.4th at p. 466.) Mother did not show that severing the "parent-child relationship would deprive the [children] of a substantial, positive emotional attachment such that the child would be greatly harmed." (Ibid.) There was no evidence that the parent-child relationship was such that Ke. and K. would suffer detriment from its termination. (Id. at p. 467.) Substantial evidence supported the trial court's finding that Mother had not shown evidence to satisfy the beneficial relationship exception to termination of parental rights.
II. Father's Appeal
ISSUE
Father claims that if Mother's parental rights are restored, his parental rights must also be restored.
A. Father Has Standing to Appeal the Termination of Parental Rights
The juvenile court found Father Ka.S. to be the alleged father of Ke. and K. The DCFS argues that as an alleged father who never became a party of record Father lacks standing to appeal (In re Joseph G. (2000) 83 Cal.App.4th 712, 715). In Joseph G., the alleged father was given notice of a section 366.26 hearing, but did not appear at the hearing and made no request for relief. (Id. at p. 714.) Thus he did not become a party of record, and because only parties of record may appeal, he lacked standing to appeal an order terminating parental rights. (Id. at p. 715-716.)
~(NOTE: although Ka.S. remained the alleged father and never became the presumed father, Mother and all other parties considered him the children's biological father. It can be inferred that the juvenile court also accepted Ka.S. as the children's biological father. An alleged father is not entitled to appointed counsel or to reunification services. (In re J. H. (2011) 198 Cal.App.4th 635, 644.) The juvenile court appointed counsel for Father and ordered reunification services for him.)~
"A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings." (In re Joseph G., supra, 83 Cal.App.4th at p. 715.) An alleged father in a dependency proceeding becomes a party to the proceedings when he appears and asserts a position. (In re Paul H. (2003) 111 Cal.App.4th 753, 759.) Father Ka.S. first appeared at the June 20, 2008, hearing, where counsel was appointed to represent him. Father's attorney appeared at all subsequent hearings. Father appeared at the September 24, 2010, hearing, when the matter was set for a section 366.26 hearing. On January 4, 2011, Father filed a section 388 petition seeking reinstatement of reunification services and unmonitored visits. Father appeared at the January 7, 2011, hearing, and at the January 28, 2011, hearing at which his petition was denied and his parental rights were terminated. Having become a party to the proceedings, Father has standing on appeal to raise issues concerning his parental interest in the children. (Ibid.; In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117.)
B. Affirmance of the Order Terminating Mother's Parental Rights Affords No Basis for Reversal of the Order Terminating Father's Parental Rights
Father argues that if this court reverses the order terminating Mother's parental rights, his parental rights must also be restored. Some case law holds that after a juvenile court terminated both parents' right in a single proceeding and an appellate court reinstates one parent's rights, the other parent's rights may be also be restored—although such restoration of parental rights is not automatic. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.) Los Angeles County Dept. of Children & Fam. Services (2000) 83 Cal.App.4th 947, however, held that reinstatement of one parent's rights does not require reestablishment of the other's rights. (Id. at p. 949.) In Mother's appeal, the order terminating rights is affirmed. Therefore affirmance of the order terminating Mother's parental rights affords no basis for reversal of the order terminating Father's parental rights. (See In re Vincent S. (2001) 92 Cal.App.4th 1090, 1094, fn. 3.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
CROSKEY, Acting P. J.
ALDRICH, J.
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re K.S. et al., Persons Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
D.L., Defendant and Appellant.
In re K.S. et al., Persons Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
KA.S., Defendant and Appellant.
B230760
B231509
(Los Angeles County Super. Ct. No. CK73288)
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on October 21, 2011, be modified as follows:
On page 17, the second full paragraph (lines 9-14) is deleted entirely:
There is no change in the judgment.