Opinion
F073868
02-02-2017
In re Je.M., et al., a Person Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Y.S., Defendant and Appellant.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Colleen Carlson, County Counsel, and Rise A. Donlon, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kings Super. Ct. Nos. 15JD0109 & 15JD0110)
OPINION
APPEAL from an order of the Superior Court of Kings County. Louis F. Bissig, Judge. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Colleen Carlson, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
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FACTS
On April 1, 2015, the Kings County Human Services Agency (the "Agency") filed a dependency petition. (Welf. & Inst. Code, § 300.) The petition alleged that appellant, Y.S., was unable to adequately supervise or protect her children: Je.M. (almost two years old), Ja. M. (almost five years old), I.M. (three years old) and M.M. (four months old). The petition alleged that the children's mother, Y.S., and the children's father, T.M., "engage in domestic violence in the presence of the children."
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
We will refer to Y.S., T.M. and their children by their initials to promote the privacy of those involved.
The matter had been referred to the Agency a few days prior to the filing of the petition because of an incident that had occurred on March 20, 2015. The Hanford Police Department responded to a fast food restaurant because Y.S. and T.M. had been arguing in a vehicle. When officers arrived, Y.S. was crying and had blood covering her mouth and chin. Y.S. said T.M. had suspected her of cheating on him and had punched her in the face. Y.S. said one of her teeth felt loose. Y.S. said she had yelled for help. Their four children were in the vehicle with them during the incident. T.M. was arrested. Y.S. mentioned that there had been multiple incidents of domestic violence with T.M. in the past.
On April 1, 2015, a social worker went to the mobile home where Y.S. was living with the children. The social worker observed the mobile home was not well maintained, had broken windows, a disheveled interior with "piled dirty dishes, left out food, piles of clothing, piled trash, old food in the refrigerator and a foul smell." The home was cold; Je.M. and I.M. were shivering, and their teeth were "chattering." Food was being cooked on a hot plate in a bathroom. Y.S. said her residence was disheveled because she had recently moved. Y.S. said that the recent parking lot incident was an "accident," and she was going to stay in a relationship with T.M.
After the detention hearing on April 3, 2015, the court ordered Ja.M., I.M., Je.M. and M.M. removed from Y.S.'s home. Y.S. was permitted to have supervised visitation with the children. At the detention hearing, the court found T.M. to be the presumed father of Ja.M., Je.M. and M.M. and the alleged father of I.M.
Ja.M. and I.M. were placed together in one foster home, while Je.M. and M.M. were placed in a different foster home.
Prior Dependency Cases
A jurisdiction/disposition report dated April 20, 2015, recounted prior dependency cases involving T.M. and/or Y.S.
On November 21, 2005, two of T.M.'s other children (neither of whom are involved in the present cases) were placed in protective custody due to T.M.'s substance abuse and domestic violence. T.M. failed to make substantive progress with family reunification services, and his parental rights were terminated as to the two children on February 1, 2007.
Though the jurisdiction/disposition report does not make it entirely clear, it appears Y.S. was not the mother of these two children.
On August 24, 2010, Ja.M. was removed from the custody of Y.S. and T.M. after he received a broken arm and bruising to his left eye. Y.S. and T.M. claimed Ja.M. had rolled off the bed, but a physician said T.M.'s explanations for the injuries were inconsistent. Child Welfare Services concluded allegations of general neglect and physical abuse concerning the incident had been "substantiated." At the time, Y.S. and T.M. had three prior documented incidents of domestic violence and were in violation of a restraining order by being in contact with one another. At a six-month review hearing in the case, T.M.'s family reunification services were terminated. On November 16, 2011, Y.S. was awarded sole physical and legal custody of Ja.M., and dependency was terminated. At the time, Y.S. claimed she was no longer in a relationship with T.M. The judge ordered that the restraining order between Y.S. and T.M. would continue for three years.
The juvenile court took judicial notice of these two prior dependency cases.
Jurisdiction/Disposition Hearing
After a contested jurisdiction and disposition hearing, the court found that continued placement of the children outside the home was necessary. The court ordered that Y.S. would receive family reunification services but T.M. would not.
Status Review
In a status review report dated November 2, 2015, the Agency recommended termination of Y.S.'s family reunification services and that a section 366.26 hearing be set. Y.S. initially requested a contested hearing on the issue, but counsel withdrew her request because she had not secured suitable housing for the children. The court terminated Y.S.'s reunification services and ordered that a section 366.26 hearing be scheduled within 120 days.
Je.M. and M.M.'s foster parents requested de facto parent status, which the court granted.
Joint Proceedings: Section 366.26 Hearing and Section 388 Petition
On March 11, 2016, the Agency filed a section 366.26 report recommending that the court terminate Y.S.'s parental rights as to Je.M. and M.M. (the two younger children).
On May 3, 2016, Y.S. filed a request to change a prior court order. (See § 388.) Specifically, Y.S. asked the court to place the children back with her or, alternatively, resume her reunification services. The Agency agreed Y.S. should receive more family reunification services as to the two older children, Ja.M. and I.M. However, the Agency opposed granting additional family reunification services as to the two younger children, Je.M. and M.M. Minor's counsel also opposed Y.S.'s request for more services as to Je.M. and M.M. The Agency indicated the two younger children were thriving in their placement with the de facto parents, whom they had been with since entering foster care. The two older children had been in several placements and were currently placed with a family member.
A joint hearing on Y.S.'s request and the section 366.26 hearing occurred on May 18, 2016.
Testimony of the Children's Maternal Aunt
The children's maternal aunt testified at the joint hearing. I.M. and Ja.M. had been placed with her the month prior to the hearing (i.e., April). Ja.M.'s behavior and performance at school had improved. I.M. was also "doing well."
The aunt testified that she was willing to adopt the children "[i]f necessary," but she wanted them "to go home to mom because I know she loves them." The two children express that they miss their mother every day and would like to return to her care. I.M. and Ja.M. also ask daily for their siblings, Je.M. and M.M. I.M. and Ja.M. also express excitement when it is time to visit with their mother and their siblings.
Testimony of Je.M. and M.M.'s Foster Mother
The foster mother and de facto parent of Je.M. and M.M. also testified. She said the two children had been in her care for over a year, since April 2, 2015. She testified she was "[a]bsolutely" interested in adopting the two and that nothing in the foreseeable future would change that. Both children look to her for comfort when they are hurt; they come to her as a parent when they are excited about something; they view her as their parent; and they call her "Mommy." She did not know of anyone else who they would look to as a parent, except her husband.
She further testified that Je.M. and M.M. did not have any medical or behavioral problems. Je.M. does have a "little" speech delay and had been receiving speech therapy.
Je.M. and M.M. did not seem upset when they would have to leave their visits with Y.S.
Testimony of Y.S.
Y.S. also testified at the hearing. Y.S. said she understood Je.M. and M.M. would look to their de facto parents as providing day-to-day care for them and being their primary caretakers. She agreed that whatever connection she had with them before removal had lessened over time.
Y.S. testified that she had recently completed a 13-week domestic violence course for victims. She had taken a total of three domestic violence classes altogether and expressed a desire to enroll in another domestic violence support group. Y.S. wanted to protect the children like a mother should, including protecting them from danger and from witnessing her being abused. Y.S. said she had come to realize that she was codependent. Though Y.S. denied that she was still struggling with codependency, she was enrolled in counseling to deal with codependency.
Y.S. acknowledged that in her 2010 case, she had utilized services, told the Agency she was not in a relationship with T.M. anymore, and that the situation would not happen again. Yet, Y.S. did resume a relationship with T.M., who abused her in front of the children leading to the present dependency case.
Y.S. admitted that T.M. had been a part of her life as recently as five months ago. She also acknowledged that she had been in a transitional home for the past five months and before that she was homeless.
Y.S. acknowledged that during visits, the children would stay with her "once in a while" but then would "take off" and go play with other children. Y.S. would try to stay with the younger two children.
Y.S. sensed that the two older children thought of her as their parent, and they had expressed a desire to be in her care. Y.S. admitted that the two younger children, Je.M. and M.M., did not express a desire to be in her care, though Je.M. does call her "mama."
DISCUSSION
I. The Section 388 Petition
Y.S. contends the court erred in denying her section 388 petition, requesting resumption of reunification services as to Je.M. and M.M.
"Any parent ... 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, subd. (a)(1).) " '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 J.T. (2014) 228 Cal.App.4th 953, 965.)
"To prevail on a section 388 petition, the moving party must establish that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. [Citation.]" (In re J.T., supra, 228 Cal.App.4th at p. 965.)
With respect to the first prong, the Agency concedes that "the circumstances had changed in that [Y.S.] engaged in services and showed some understanding of the dynamics associated with domestic violence ...." However, the Agency submits that the trial court did not abuse its discretion in concluding the change proposed by Y.S. (i.e., resumption of services) would not promote the best interests of Je.M. and M.M. We agree.
When determining whether a modification under section 388 would be in the best interests of the child, courts consider several factors including but not limited to: "(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...." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, original italics.)
We conclude there was sufficient evidence that granting Y.S.'s request would not be in the best interests of Je.M. and M.M. Y.S. had been in an abusive relationship for a long period of time. And, in her 2010 case, Child Welfare Services substantiated allegations that T.M. abused Ja.M. directly. Even though T.M. had abused her child, Y.S. maintained a relationship with him. Then, in the incident leading to the present dependency case, T.M. again abused her in front of the children on March 20, 2015. Yet, Y.S. admitted that T.M. remained a part of her life until five months before the May 18, 2016 hearing. There was substantial evidence that the problem leading to the dependency was both serious and not easily ameliorated.
Additionally, the evidence showed Je.M. and M.M. had a strong bond with their de facto parent caretakers and a relatively weaker bond with Y.S. Both children looked to their caretaker for comfort when they are hurt; would come to her as a parent when they are excited about something; view her as their parent; and call her "Mommy." And Y.S. admitted that Je.M. and M.M. did not express a desire to be in her care. This evidence of a strong relative bond with the caretakers over Y.S. further militates against granting the section 388 petition.
As Y.S. notes, some other factors were more favorable to her. She had completed several courses in domestic violence and appeared to understand the concepts she was taught, visitations went well, and there is often a benefit to having children remain with their parents. We agree that Y.S. demonstrated a desire to overcome codependency and regain custody of Je.M. and M.M., and that she made some progress in addressing the circumstances that gave rise to the dependency case. But we cannot conclude the juvenile court abused its discretion by placing more weight on the evidence discussed above, in contrast to the factors cited by Y.S. Section 388 petitions are " '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 J.T., supra, 228 Cal.App.4th at p. 965.)
II. Sibling Exception
"Under section 366.26, the statutory preference is to terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (b)(1).)" (In re C.B. (2010) 190 Cal.App.4th 102, 121.) There are statutory exceptions which " 'permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.'[Citation.]" (Id. at p. 122, fn. omitted.)
One statutory exception centers around the child's relationship with siblings. (§ 366.26, subd. (c)(1)(B)(v).) Courts will not terminate parental rights 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." (Ibid.)
It is Y.S.'s burden to show that this sibling relationship exception applies. (In re D.O. (2016) 247 Cal.App.4th 166, 176.) In reviewing Y.S.'s claim, "we apply the substantial evidence standard to the juvenile court's underlying factual determinations, and the abuse of discretion standard to the court's weighing of competing interests. [Citation.]" (Id. at p. 174.)
In attempting to carry her burden, Y.S. argues that M.M. was raised with her siblings for four months, and that Je.M. was raised with his older siblings for 22 months. However, that span of time occurred when Je.M. was less than 2 years old and M.M. was less than 4 months old. And, of course, Je.M. and M.M. did not live with their other siblings for an entire year thereafter. Though the two sets of children would see each other during visitation, there is little affirmative evidence that these periodic encounters maintained or created a strong bond between Je.M., M.M. and their older two siblings. It is not an abuse of discretion to conclude that the sibling relationships relevant here did not warrant deviation from the preferred route of adoption.
III. Parental Relationship Exception
Another statutory exception to adoption applies where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Again, Y.S. bears the burden of showing this exception applies. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.)
"The "benefit" prong of the exception requires the parent to prove his or her relationship with the child "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. [Citations.]" (In re K.P. (2012) 203 Cal.App.4th 614, 621, italics added.) It is not enough to show that the children have an emotional bond with their mother. (Ibid.) " 'A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.' [Citation.] Evidence that a parent has maintained ' "frequent and loving contact" is not sufficient to establish the existence of a beneficial parental relationship.' [Citation.]" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
"[B]ecause 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." [Citation.]" (In re K.P., supra, 203 Cal.App.4th at p. 621.)
Y.S. relies heavily on the fact that visits with the children reportedly went well. But that fact is not disputed by the Agency. Showing that regular visitation and contact has occurred is only part of the parental relationship exception, and it is not in contention here. "Overcoming the statutory preference for adoption and avoiding the termination of parental rights requires the parent to show both that he or she has maintained regular visitation with the child and that the child would benefit from continuing the relationship. (§ 366.26., subd. (c)(1)(B)(i).)" (In re Marcelo B., supra, 209 Cal.App.4th at p. 643, italics added.) Consequently, as Y.S. acknowledges, our "focus is on whether the children would benefit from continuing the relationship with their mother." Therefore, in this appeal, the relevance of the visits turns on whether they showed that the relationship between Y.S. and her two younger children was so beneficial as to outweigh adoption. The evidence concerning the visits in this case does not satisfy the second prong. As Y.S. acknowledges, "For the final hearing the Agency reported that although the two younger children did not show a strong attachment to mother before or after the visits, all interactions and communications during the visits were appropriate." (Italics added.) In sum, Y.S.'s evidence concerning visitation satisfied the first prong of the exception but failed to establish the second prong.
Moreover, Je.M. spent less than two years in Y.S.'s custody and M.M. spent less than five months in Y.S.'s custody over the span of their entire lives. (See In re Marcelo B., supra, 209 Cal.App.4th at p. 643 [existence of beneficial relationship determined by several factors including "the portion of the child's life spent in the parent's custody.")
Y.S. did not carry her burden in showing her relationship with Je.M. and M.M. " 'is one that "promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." [Citation.]' " (In re Marcelo B., supra, 209 Cal.App.4th at p. 643.)
DISPOSITION
The order is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.