Opinion
F079009
02-05-2020
In re K.C. et al., Persons Coming Under the Juvenile Court Law. MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES/CHILD WELFARE SERVICES, Plaintiff and Respondent, v. A.L. et al., Defendants and Appellants.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant A.L. R.S., in pro per., for Defendant and Appellant R.S. Regina A. Garza, County Counsel, and Derek Walzberg, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. MJP017753, MJP017754, MJP017755, MJP017756)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Thomas L. Bender, Judge. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant A.L. R.S., in pro per., for Defendant and Appellant R.S. Regina A. Garza, County Counsel, and Derek Walzberg, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Mother A.L. appeals the juvenile court's order terminating her parental rights as to four of her children pursuant to Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred by finding the beneficial parent-child relationship exception to termination of parental rights did not apply.
All further undesignated statutory references are to the Welfare and Institutions Code.
Grandmother R.S. appeals the juvenile court's denial of her section 388 petition requesting placement of the children. Grandmother contends the juvenile court erred by failing to apply the relative placement preference codified in section 361.3.
We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother had seven children in her care at the outset of this dependency action: T.L. (then 16 years old), B.L. (then 10 years old), D.L. (then nine years old), K.C. (then four years old), A.C. (then 3 years old), S.C. (then 23 months old), and L.C. (then 6 months old).
On April 22, 2016, the Madera Police Department was called because B.L. and D.L. had been left in the care of a father of mother's family friend who could not care for the children. The children were placed in protective custody. The Madera Police Department transferred the care of the children to the Madera County Department of Social Services (department) for placement. On April 26, 2016, B.L. and D.L. were returned to the care of mother pursuant to an agreed-upon safety plan which required the children and mother to reside with grandmother.
On May 3, 2016, grandmother informed social worker Jose Regalado that mother had left the children in her care on April 22 and had not returned. Grandmother stated that, because of her health, she could no longer care for the children. The children were removed from mother and placed in foster care.
On May 3, 2016, S.C. and L.C. were placed together in a foster home, and K.C. and A.C. were placed together in a separate foster home. On May 16, 2016, S.C. and L.C. were moved to the same foster home K.C. and A.C. had been placed, and the four stayed together throughout the length of the dependency proceedings. B.L. and D.L. were removed from their first foster home and, on June 15, 2016, placed in another foster home.
The department filed a section 300 petition on behalf of the children and, at a combined detention and jurisdiction hearing on June 13, 2016, the juvenile court ordered the children "remain detained" and found the children came under its jurisdiction within the meaning of section 300, subdivision (b). The court found true the department's allegation that mother had left her children with her elderly and ill mother (grandmother) who was unable to provide for their care and support, that mother did not leave grandmother with information on how to reach her, and that mother did not check on the health and safety of the children while they were in grandmother's care. T.L. was placed with her father and later dismissed from the action.
On October 12, 2016, the department conducted an inspection of the home of C.S. (father), the biological father of B.L., D.L., K.C., A.C., L.C., and S.C. The department's intent was to determine whether the children could be placed with father and mother at father's residence with family maintenance services. The home was found not to be appropriate for the children; it had no running water, and one of the children's bedrooms smelled strongly of marijuana. As a result of the home inspection, mother and father were asked to submit to drug screening. Father tested positive for marijuana and methamphetamines. Mother would not submit to screening.
Father is not a party to this appeal.
At the disposition hearing on November 7, 2016, the children were adjudged dependents of the court. The court ordered family reunification services be provided to mother and father. These services included mental health counseling, parenting classes, and substance abuse testing and treatment.
During the reunification period, mother refused to drug test or to participate in services. Mother asserted she did not need services and failed to meet with social workers to discuss them. Mother attended "70 percent of the visits scheduled." During mother's earlier visits, the children responded "well . . . expressing their affections through hugs." The children were "observed to go to [mother] to address their needs." During some of the later visits, however, mother was observed "being distracted and on her phone for 40 percent of the visit."
At the beginning of June 2017, mother was observed to be verbally aggressive during her visits. As a result, she was asked to submit to drug testing. Mother refused and the visits were suspended.
On July 17, 2017, mother submitted to a hair follicle test, which tested positive for amphetamine and methamphetamine.
Father attended "83 percent" of the visits scheduled during the reunification period. The department reported the children responded well to father by expressing their affections through hugs and there appeared to be a healthy "attachment and bond" between father and the children. During the visits, father was observed reading to the children and attending to their needs.
At the six-month review hearing which, due to multiple continuances began June 27, 2017, and concluded September 14, 2017, social worker Beverly Webb testified that she had observed some of mother's visits and noticed "no real interaction with the children." Webb testified father interacted well with the children and agreed a bond existed between father and the children. Webb would not, however, recommend unsupervised visits until father stabilized his behavior. Father had been verbally aggressive, and this occurred in front of the children "[m]ore than 50 percent of the time." The court terminated mother's and father's services and set a section 366.26 hearing.
For permanent plans, the department recommended that B.L. and D.L. be placed in a legal guardianship with their current caregivers. As to B.L., the department opined three exceptions to termination of parental rights applied: that she, a child over the age of 12, objected to the adoption; that she had a beneficial parent-child relationship with mother and father; and that there would be substantial interference with a sibling relationship should adoption be ordered. As to D.L., the department opined the first exception did not apply as, though he objected to adoption, he was not over the age of 12. The later two exceptions did, however, apply. As to K.C., A.C., S.C., and L.C., the department opined that no exceptions applied and recommended termination of parental rights and a permanent plan of adoption with their current caregivers.
The section 366.26 report indicated that, on December 20, 2017, and again on February 28, 2018, K.C., A.C., S.C., and L.C. were asked their thoughts on being adopted. On December 20, 2017, K.C. reported she wanted to go back home "to her other 'mom and dad' " and did not want to stay at her current home forever. A.C. reported she did not want to stay in her current home forever "because she was going to go back home with her other 'mom and dad.' " She said she missed them and wanted to go home. On February 28, 2018, K.C. reported she "d[idn't] know" whether she wanted to live with her current care providers forever. She reported she felt safe and happy with them and referred to them as " 'mommy and daddy.' " A.C. again reported she did not want to stay with her current care providers forever. She said she was happy at her current placement and felt safe and loved by them but wanted to go back to her other family. She added that she " 'loves' " her current home and refers to her care providers as " 'mommy and daddy.' " S.C. and L.C. were too young to understand adoption or the concept of "a forever family."
At the request of mother and father, a bonding study regarding K.C., A.C., S.C., and L.C. was performed by Susan Streeter, Ph.D., Q.M.E.
Streeter observed that father relates to K.C. as a peer and, because of this, opined that the parent-child relationship had been "contaminated." Streeter observed that A.C. appeared to gain physical comfort from sitting in father's lap while he read to her but, after he finished the book, A.C. distanced herself from father and chose to interact with Streeter for the remainder of the interview. Streeter opined father's relationship with S.C. was not well developed and that, although L.C. interacted with her father in play activity, L.C. did not appear to rely on him for reassurance, emotional support or protection. L.C. related to father as a family friend.
Streeter opined that K.C.'s relationship with mother was "similar to that of an occasional baby sitter" and that K.C. did not appear to rely on her mother for her emotional or day-to-day needs. K.C., instead, seemed to be in a role reversal with mother. Streeter opined A.C.'s relationship with mother was "emotionally distant," as she had little interaction with her mother and did not reciprocate the hugs mother offered during the interview. Streeter likened A.C.'s relationship with mother to that of a distant friend. Streeter observed that S.C. was emotionally distant in her interactions with mother and did not appear to have a parent-child relationship with her. Streeter said L.C. avoided contact with her mother during their interview.
Streeter concluded that none of the children had substantial emotional attachments or a parent-child relationship with either parent and none of them would be greatly harmed if their relationship with their parents terminated. To the question of whether "continuing this parent/child relationship [would] promote the well-being of the children to such degree as to outweigh the well-being the children would gain in a permanent home with adoptive parents" (boldface omitted), Streeter responded in the negative.
At the section 366.26 hearing on November 28, 2018, which pertained only to K.C., A.C., L.C., and S.C. (hereinafter, collectively "the children"), social worker Joanne Nuila-Melgar testified the children were adoptable and had been with their current care providers since 2016. Nuila-Melgar testified the children were doing well, and that the department's recommendation was adoption and termination of parental rights. Nuila-Melgar considered the beneficial parent-child relationship exception, but Streeter's report indicated the bond between the parents and the children was not strong.
Nuila-Melgar indicated that, despite the representations of K.C. and A.C. that they did not want to be adopted and wanted to live with their parents, it was in the children's best interests to be adopted. Nuila-Melgar said K.C. appeared to enjoy where she was living and that she had noticed a bond between K.C. and her care providers. Nuila-Melgar also said A.C. appeared to have a parent-child relationship with her care providers.
Nuila-Melgar testified the department had concluded that the benefits of being adopted outweighed the benefits to the children of maintaining the parental relationship. The bonding studies reinforced the department's conclusion.
On January 30, 2019, the juvenile court found the children adoptable and the "beneficial parent-child relationship exception" to terminating parental rights did not apply. The juvenile court ordered termination of mother's and father's parental rights.
DISCUSSION
I. Beneficial Parent-Child Relationship Exception
At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption. (§ 366.26, subd. (c)(1).) Section 366.26, subdivision (c)(1) provides the court shall terminate parental rights unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to . . . the following circumstance[]: [¶] . . . The 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).) It is the parent's burden to show that termination of parental rights would be detrimental to the child because of this beneficial parent-child relationship exception. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.)
"Interaction between natural parent and child will always confer some incidental benefit to the child." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) " '[B]enefit from continuing the [parent/child] relationship,' " as described by subdivision (c)(1)(B)(i) of section 366.26, however, has been interpreted to mean "the 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." (In re Autumn H., supra, at p. 575.) "[T]he 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." (Ibid.) The preference for adoption is overcome if severing the relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (Ibid.) "The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the 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." (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) Evidence of frequent and loving contact is not enough to establish a beneficial parental relationship. (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316.)
Mother argues she and father met their burden of proving that severing the parent-child relationship would be detrimental to the child because K.C. and A.C.'s wishes were to not be adopted but, instead, to be returned home to their parents because they loved their parents and Nuila-Melgar testified that "completely removing [the parents] from [the children's] lives . . . would be very detrimental" to the children. Mother contends that Nuila-Melgar's and the department's recommendation of adoption and Streeter's bonding assessment did not constitute "substantial evidence" supporting the juvenile court's finding. We disagree.
The standard of review of a court's finding, that a parent did not meet his or her burden to prove an exception to termination of parental rights, is "whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Specifically, the question is "whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " (Ibid.) The evidence in the record before us does not compel a finding the exception applied as a matter of law.
We note that courts of appeal differ in how they articulate the standard of review in the context of exceptions to termination of parental rights. Some courts apply a "substantial evidence" standard (see In re Autumn H., supra, 27 Cal.App.4th at p. 576), some apply an "abuse of discretion" standard (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and yet others apply a "substantial evidence" standard to the factual determination (whether a beneficial parental relationship exists) and an "abuse of discretion" standard to the discretionary determination (whether the existence of that relationship constitutes a compelling reason for determining that termination would be detrimental to the child) (In re K.P. (2012) 203 Cal.App.4th 614, 622).
Our conclusion would not be different under any of these standards. The practical differences between them are insignificant. They all give broad deference to the juvenile court's judgment. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) A reviewing court will interfere only if, under all the evidence, viewed most favorably in support of the juvenile court's action, it finds no judge could reasonably have made the order. (Ibid.) We review the whole record in the light most favorable to the judgment below. We view the evidence in the light most favorable to the trial court's judgment, contradicted or uncontradicted; and in assessing the evidence, we do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the juvenile court's finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 13781379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
Mother's claim that the evidence in support of applying the beneficial parent-child relationship exception is uncontradicted and unimpeached and of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding is not persuasive. The first prong of the standard of review articulated in In re I.W. has not been met. The evidence supporting application of the beneficial parent-child relationship exception was clearly contradicted by Streeter's bonding study and the juvenile court expressly stated it gave Streeter's opinion more weight than any contrary testimony because of Streeter's study.
Mother's contentions, that the bonding study was "fatally flawed" because it "was based on the incorrect premise the alternative was 'return' to the parents, as well as being overtly biased against the parents," are not well taken. Mother bases her argument on Streeter including in her report that mother and father had not been able to provide shelter for the children in the past. Mother contends that such information "although not completely irrelevant, should not be determinative to the question of the strength of the current relationship with the children . . . ." Mother also takes issue with Streeter listing mother's substance abuse and criminal history issues as "Risk Factors" (boldface & some capitalization omitted). We view these sections in Streeter's report as background information and not "determinative" of her ultimate conclusions. Much of Streeter's reports were based on first hand observations of mother, father, and the children. Contrary to her assessment being "fatally flawed" as being "based on" an "incorrect premise," Streeter answered the following questions asked by the court that pertain to a section 366.26 hearing:
(1) "Do[] the parent and children have a parent/child relationship (as opposed to that of a child with a friend, occasional babysitter, or extended family member)?" (boldface omitted);
(2) "Do the children have a substantial emotional attachment to the parent such that the children would be greatly harmed if this parent/child relationship were terminated?" (boldface omitted); and
(3) "Would continuing this parent/child relationship promote the well-being of the children to such a degree as to outweigh the well-being the children would gain in a permanent home with adoptive parents?" (Boldface omitted.)
Mother asserts Streeter was "biased" based on testimony by father, mother, and the social worker that contradicted or challenged some of Streeter's observations and conclusions. As such, mother's claim of "bias" asks us to reweigh evidence. We may not do so. (See In re Stephanie M. (1994) 7 Cal.4th 295, 319-326.) The juvenile court did not err by crediting Streeter's bonding assessment.
The evidence presented, which supported a finding the exception applied, was not " 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " (In re I.W., supra, 180 Cal.App.4th at p. 1528.) The children's wishes not to be adopted and to return home to their parents do not singularly constitute evidence detriment would outweigh the benefit of being adopted. Mother concedes a child's wishes are not determinative of a permanent plan, and the juvenile court indicated in its ruling it "considered all of the evidence," which necessarily included the children's wishes. Again, in suggesting the juvenile court did not consider the children's wishes enough, mother inappropriately requests that we reweigh evidence.
Regarding Nuila-Melgar's comment that the children would suffer detriment if contact with their parents ceased, her remark was a conclusion. It appeared to be based on the children having had consistent positive visitation with their parents. Evidence of frequent and loving contact is not enough to establish a beneficial parental relationship. (In re Marcelo B., supra, 209 Cal.App.4th at p. 643; In re Bailey J., supra, 189 Cal.App.4th at pp. 1315-1316.) Nuila-Melgar's testimony did not explain how the children would suffer detriment. Further, Nuila-Melgar explained that even though the relationship the children had with their parents was "significant" it did not, in the department's opinion, outweigh the stability and benefits they would gain from adoption. The juvenile court was allowed to consider the totality of the evidence before it.
Mother alleges the department's adoption recommendation was supported by "[l]argely . . . [i]rrelevant" (boldface omitted) reasons. She says the department put too much emphasis on the children's bond with the caregivers and how long they had been with the caregivers.
In her attempt to show error, mother emphasizes that the department "did not even consider guardianship as an option." (Boldface & some capitalization omitted.) Mother misstates the record. Father's counsel asked Nuila-Melgar if guardianship had been considered. Nuila-Melgar replied, "I do recall that being brought up, but in terms of the most suitable permanent plan for them, as far as their ages and stability and permanency adoption is always - at least as an adoption social worker - that is always the best plan in terms of what we would recommend, or what I assess for."
Again, mother fails to recognize the statutory preference for adoption; she cites no law requiring the department to consider guardianship if it determines the children are adoptable and no exception to the termination of parental rights applies. Nuila-Melgar explained that the department determines whether children are adoptable, and then determines whether an exception exists.
In this case, the department considered whether the beneficial parent-child relationship exception existed; since it determined it did not, adoption was recommended as the permanent plan.
Mother also criticizes Nuila-Melgar's testimony that the department "always" recommends adoption as the best plan, as rendering department recommendations "meaningless." This point is not well taken, as the department found exceptions to termination of parental rights, including the beneficial parent-child relationship exception, did apply as to B.L. and D.L.
The juvenile court did not err in crediting the department's recommendation.
The evidence does not compel as a matter of law a finding in favor of mother. The juvenile court's finding that the beneficial parent-child relationship exception did not apply was not error.
II. Placement with Grandmother
In 2016, after mother left the children in grandmother's custody, the children were removed and placed in foster care. This occurred because grandmother contacted the department stating she could not take care of them due to her medical issues. The department filed a section 300 petition and the combined detention and jurisdiction hearing occurred on June 13, 2016. Prior to disposition, T.L. identified grandmother as a potential relative placement. In response, a social worker conducted an assessment with grandmother on June 27, 2016. The social worker observed that grandmother often forgot the things they had discussed and appeared to be suffering from a mild form of dementia. The social worker concluded that even if grandmother were to pass the initial background checks, her current level of functioning was not appropriate for placement. The children were placed in the foster homes they remained in for the length of the proceedings. The disposition hearing occurred in November 2016. At that hearing, the court found the children's current placement in their foster homes was appropriate. By doing so, the court implicitly affirmed the department's determination that grandmother was not appropriate for placement. No party appealed or filed a writ petition challenging that finding.
On August 16, 2017, grandmother submitted a Resource Family Approval (RFA) application. In September 2017, grandmother attended RFA orientation. She was provided information about the process and given the documents needed to certify her home. During the RFA process, several home inspections were conducted as grandmother worked to address the social workers' concerns. As of August 2, 2018, nearly a year after the RFA process had begun, grandmother had not yet completed it. The court informed grandmother it would not consider a request by her for placement until she had been approved through the RFA process. Grandmother was finally approved in September or October 2018 and, in November 2018, filed her petition requesting custody of K.C., A.C., S.C., and L.C. be awarded to her.
Section 388, subdivision (a)(1) reads, in pertinent part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . ."
The section 366.26 and permanency planning review contested hearing commenced November 28, 2018. The juvenile court heard evidence on grandmother's petition concurrent with evidence for the contested section 366.26 hearing. The court ruled on and denied her petition immediately before terminating parents' parental rights on January 30, 2019. Grandmother contends the court erred by denying her section 388 petition and not applying the relative placement preference pursuant to section 361.3. We reject grandmother's claims.
The sole case cited by grandmother in support of her claim of error is In re Isabella G. (2016) 246 Cal.App.4th 708. She does not explain why she cited to Isabella G. In Isabella G., the grandparents requested placement prior to the detention, jurisdictional, and dispositional hearings, and the agency failed each time to comply with its obligation to conduct a home assessment. (Id. at p. 722.) It was only after grandparents filed a section 388 petition (after reunification services had been terminated) that the agency conducted an assessment of grandparent's home. (Isabella G., at pp. 723, 725.) The appellate court found the juvenile court erred by determining section 361.3 did not apply because reunification services had been terminated and it remanded for a hearing on grandparents' request. (Isabella G., at p. 723.) Isabella G. bears no factual resemblance to the circumstances here. Here, grandmother was assessed as a potential relative placement prior to disposition. She ultimately completed the RFA process and had a hearing on her request for placement. --------
Under section 388, subdivision (a), a party may petition the juvenile 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, there is a change of circumstances or new evidence, and the proposed modification is in the child's best interest. (§ 388, subd. (a); In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
A section 388 petition is " 'committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.' " (In re A.R. (2015) 235 Cal.App.4th 1102, 1116-1117.) We look to whether the juvenile court " ' ["]exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) " 'The denial of a section 388 motion rarely merits reversal as an abuse of discretion.' " (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
The issue before the court was whether a change in placement was in the children's best interest. At the hearing, Nuila-Melgar testified that she had assessed grandmother's request to have the children in her care, and believed it was not in the children's best interest. The social worker indicated that one of the reasons was because grandmother had asked to have the children removed from her care at the outset of the case because she could not care for them. Nuila-Melgar testified the children were doing very well in their current placement, and that grandmother had not shown a change in circumstances that would warrant the change of the children's placement.
The juvenile court found that there was a change of circumstances in that grandmother had passed the RFA process. It found, however, that placement of the children with grandmother was not in the children's best interest. In finding that it was not, the court pointed out that the children had been with their current caregivers for approximately two and a half years, which was almost all of L.C.'s life, over half of S.C.'s life, and approximately half of A.C.'s life. The court found the children's current placement to be suitable and found the children had a bond with their care providers and were doing well. The court's finding the children should remain in their placement did not " ' "exceed[] the bounds of reason" ' " (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319) and accordingly we find no error in the court's denial of grandmother's section 388 petition.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
PEÑA, J.