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In re L.A.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Feb 16, 2012
G045772 (Cal. Ct. App. Feb. 16, 2012)

Opinion

G045772

02-16-2012

In re L.A., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. J.A. et al., Defendants and Appellants; C.S. Appellant.

Gerard McCusker, under appointment by the Court of Appeal, for Defendant and Appellant J.A. Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant A.C. Pamela Rae Tripp, under appointment by the Court of Appeal, for Appellant C.S. Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Deputy County Counsel; and Aaron Jeppson, for Plaintiff and Respondent. No appearance by counsel for the Minor.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. DP-019018)


OPINIO

Appeal from postjudgment orders of the Superior Court of Orange County, Cheryl Leininger, Judge. Affirmed.

Gerard McCusker, under appointment by the Court of Appeal, for Defendant and Appellant J.A.

Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant A.C.

Pamela Rae Tripp, under appointment by the Court of Appeal, for Appellant C.S.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen, Deputy County Counsel; and Aaron Jeppson, for Plaintiff and Respondent.

No appearance by counsel for the Minor.

* * *

In the dependency case of five-year-old L.A. (daughter), the juvenile court terminated parental rights and established adoption as the permanent plan. (See Welf. & Inst. Code, § 366.26.) Immediately before doing so, the court denied father's section 388 petition to modify daughter's foster care placement by removing daughter from the care of a nonrelative foster parent (who had cared for daughter for nearly one year and intended to adopt daughter) and placing daughter with her paternal grandmother who had previously declined SSA's requests for her to serve as a foster parent. We affirm the court's postjudgment orders.

All statutory references are to the Welfare and Institutions Code.

FACTS

Daughter, born in August 2006, was detained by the Orange County Social Services Agency (SSA) in October 2009. Her detention followed an incident in which father punched mother in the face, resulting in mother suffering two black eyes and two large lumps on the right side of her head. Mother suffered from ongoing mental health issues; she was involuntarily hospitalized on October 19, 2009 because she "had been non-compliant with taking her prescribed psychotropic medication, was unable to carry out her activities of daily living or think rationally, appeared to be in a catatonic state and had not showered or eaten in approximately three days." Father had unresolved anger management and substance abuse issues, as well as possible mental health problems; furthermore, he fled the family home following the violence he perpetrated against mother. Father has a lengthy criminal history including burglary, theft, and drug offenses. Daughter suffered substantial emotional damage as a result of parents' actions. She "shut down emotionally, was not communicating, . . . and had regressed to the point of not displaying any form of age appropriate behavior."

Daughter was declared a dependent of the court in December 2009. In March 2011, the court terminated reunification services and set the matter for a hearing under section 366.26. Parents had not made sufficient progress addressing the causes of the dependency. "Sadly, the court does not believe that either parent has gained sufficient understanding and insight about domestic violence and how to prevent it in the future or protect their child[] from it and keep her safe. Also, mother has minimal insight into her mental health issues. These issues are still ongoing problems for the parents. [¶] Although they have participated in the services offered, I am sorry to say the court does not believe that either parent has benefited from the services offered." The court's findings in this regard are not before us on appeal.

Daughter's Foster Care Placements

Following her detention in October 2009, daughter was initially placed in the care of her maternal aunt and uncle. But daughter was removed from this home on March 2010 "due to medical [problems suffered by] the child's aunt." In March 2010, paternal grandmother declined to be considered as a foster parent for daughter, citing the demands of her two jobs.

An unrelated foster parent cared for daughter from March 2010 through November 2010. This second placement ended because of physical altercations between daughter and another child in the home. "[M]ost of the time, the other child is the one who instigates the conflicts and [daughter] then responds with physical aggression. Nevertheless, the caregiver cannot keep [daughter] in the home because the other child is under long-term placement."

In October 2010, SSA contacted paternal grandmother and other relatives about placing daughter with them. Each of the relatives, including paternal grandmother, declined to accept daughter into their home.

In November 2010, SSA placed daughter in her current home. As of December 2010, daughter "appears to be adjusting to this home; she has experienced some crying episodes and clingy behavior towards the caregiver. However, once she is comforted and reassured, she appears well and returns to her normal activities." Daughter participated in preschool and individual counseling.

As of January 2011, daughter "continues to do very well in her . . . placement. She is adjusting well to her preschool program, the foster home, and her caregiver. . . . [The] caregiver . . . indicated that [daughter] is talkative, happy, and stable. She did not have any concerns to report." Daughter's preschool teacher noted marked improvements in daughter's social skills over the previous two months.

As of July 2011, SSA reported favorably on daughter's medical, developmental, educational, mental, and emotional status. "During this past period of supervision, the child has continued to do very well in her placement. [Daughter] has 'blossomed' in all areas of development, including her verbal and social skills. The child appears happy, engaging, and confident; as stated by the preschool staff, [daughter] has 'come out of her shell.' The child's caregiver, in turn, has continued to do very well in meeting all the child's needs appropriately. Both [daughter] and her foster parent have developed a strong and nurturing bond. [Daughter] refers to her caregiver as her 'mommy' and states that she really likes her home. . . . [Daughter] is very comfortable and secure in her placement and with her caregiver."

By July 2011, the current caregiver had expressed interest in adopting daughter. The current caregiver is a 45-year-old single woman with no children. "She resides in a three bedroom and two bathroom townhouse that she owns. The home is located in an upper-middle class neighborhood in South Orange County." "The prospective adoptive mother reports to having a happy childhood, free from maltreatment. The prospective adoptive mother has completed her Bachelor's degree." "The prospective adoptive mother . . . is currently a consultant. She enjoys her new position as it allows more flexibility with her schedule. [¶] The prospective adoptive parent is reportedly healthy . . . ."

Parents' Relationship With Daughter

"In the initial phase of dependency/supervision, the child's mother visited approximately six hours per week. Initially, the child's mother was regularly arriving late to her visits . . . . [M]other was appropriate during visits, she would interact with the child for the duration of the visit, and she would bring food and toys for the child. The child appeared to be comfortable in her mother's presence." A therapist, however, reported "mother was unable [at times] to soothe the child when she was upset. . . . [C]hild's mother displayed limited positive affect with the child."

Father also visited consistently. Initially, he was "not cooperative with the child's caregiver in that he was demanding, belligerent, and did not respect visitation end time . . . . During the actual visits, the child's father did well with [daughter]; he was attentive and affectionate with [daughter]. The child appeared to have fun at these visits." Father was incarcerated from March 2010 through September 2010, during which time visitation with daughter was limited to once per week at the county jail. Daughter was distressed by these visits. Parents began visiting together once father was released from jail.

Mother arrived for a visit in November 2010 (apparently without father) and was denied a visit because of her "observable mental state; she was non-responsive, with a blank stare." Mother was hospitalized later that day.

As of July 2011, "both parents continue to visit with [daughter] twice per week. . . . Staff have reported that the child's father tends to display attention-seeking behavior in that he can be loud when he is speaking with [daughter] so that others observe his interaction with [daughter]." SSA workers "have observed that the child's mother tends to be 'behind the scenes' and allows for the child's father to take the active role during the visits."

"Throughout this period of supervision, the child and her parents have had weekly telephone contact. Currently, telephone calls are twice per week, five minutes per call. However, [daughter] will regularly refuse to speak with her parents on the phone or attempt to terminate the call early. The child will usually speak on the phone for about one minute and then say good-bye. Her parents will tell her that she needs to stay on the phone, but the child will start to cry or she will hand the phone back to her caregiver. The child's father will usually insist. However, [daughter] will tell her parents that she does not want to talk to them and hand the phone to her caregiver or simply she will not take the call."

SSA's evaluation of parents' relationship with daughter during the dependency was as follows: "The child's parents have maintained overall consistent contact with the child throughout the dependency . . . . Overall, the supervised visits have been appropriate. During the visits, the parents and the child will usually have a meal, watch a movie, and play. [Daughter] enjoys these visits with her parents because they are fun and her parents are attentive to her. However, once the visits end, the child is fine and looks forward to returning to her placement with her foster mother, who she calls 'mommy.' The benefit of these visits does not outweigh the benefit of the child having a permanent home."

Section 388 Petition

On September 6, 2011, father filed a section 388 petition to change a court order. In setting the case for a hearing to terminate parental rights under section 366.26, the court had ordered the placement of daughter to remain with her current caregiver. Father sought to have daughter placed immediately with paternal grandmother. Father cited the following new facts: "Paternal grandmother . . . has left one of her 2 jobs in order to be able to have placement of [daughter. Paternal grandmother] desires for relative placement, is capable of meeting [daughter's] need, is willing to provide Legal Permanency, specifically adoption as [paternal grandmother] has a close relationship and has maintained said close relationship with [daughter] since [daughter's] birth." The changes would be in the best interests of daughter because: "Paternal grandmother . . . has been in [daughter's] life since [daughter's] birth. [Daughter] is bonded with her grandmother who has been a consistent, loving and affectionate presence in [daughter's] life. [Daughter] delighted in the grandmother's presence and calls grandmother 'grandma.' Placement of [daughter] with her grandmother will be better for [daughter] as she has a close relationship with her grandmother since birth."

When asked in August 2011 why she had declined to be assessed for placement earlier, paternal grandmother "stated that the timing was wrong and hoped that her son would regain custody. She now knows that he will not regain custody and plans to make changes to her [life]style to incorporate [daughter] into her life." Paternal grandmother had been working two jobs earlier in the dependency and could not have cared for daughter. Although SSA declined to remove daughter from her current placement in favor of paternal grandmother, an SSA social worker deemed paternal grandmother's home to be an appropriate placement for daughter in the event such alternative placement was necessary, pending a background check. Paternal grandmother had sporadic visits with daughter during the dependency.

Court's Findings With Regard to Section 388 Petition

On September 6, 2011, the court denied father's section 388 petition to modify the dependency by placing daughter in the home of her paternal grandmother rather than her prospective adoptive parent. The court explained that its prior orders included authorizing SSA to release daughter "with a suitable parent or relative or adult. And I do not find any abuse of discretion [by SSA] with regards to that issue. [¶] Additionally, with regards to the best interest . . . the child has been with the caretaker[] for almost a year now since . . . November of 2010, and they do have a close relationship. [¶] I'm not disputing that . . . the paternal grandmother may also have a relationship, but it's not the same type of relationship that exists between the child and the caretaker[], considering the bonding that has taken place because of the fact that [she is] the caretaker[] of the child. [¶] So therefore, the court is going to deny the 388. . . . I do not find that it is in the best interest at this time for the child for placement to be changed."

Court's Findings With Regard to Termination of Parental Rights

On September 9, 2011, the court ordered parental rights to be terminated and established adoption as the permanent plan for daughter. The court made the following findings of fact in support of its orders.

"The court does find that [daughter] is adoptable . . . . [She] is a healthy, bright, cute little girl. She is developmentally on target and in fact is being transitioned from her special education course . . . into the main stream. She is thriving by all accounts. [¶] She has all the characteristics and attributes that make her adoptable and therefore the court does find by clear and convincing evidence that the child is adoptable."

"Regarding [the benefit] exception, there is no doubt in the court's mind that the parents have visited regularly and consistently. The visits for the most part have been positive and have gone well. Both mother and father are affectionate, attentive, and appropriate. The minor knows the routine and knows when the visits are scheduled and she looks forward to the visits and has fun at the visits."

"I have no doubt that [parents] are bonded with the child and have tried to establish a parental role in the child's life. The court recognizes the efforts that the parents have put forth and is impressed with their efforts." "However, when the visit is over [daughter] separates from her parents without problems or distress and looks forward to getting back to her foster mom. . . . [T]here is no doubt that not maintaining a parental relationship will be very difficult for the parents, but the court must look at this from [daughter's] perspective."

"The court believes . . . that although [daughter] looks forward to the visits and has expressed affection for her parents, that she sees her parents more as a fun routine play date . . . . [¶] The court does not find this to be a parental role. [Daughter] is reported to be happy and thriving in her foster home. She's been out of the parents' care for 40 percent of her life. She has been with the current caregiver since November of 2010. The child has blossomed under the caregiver['s] care, who loves and nurtures her and who is committed to providing a permanent home for [daughter]."

"Per [daughter's] preschool teacher, [daughter] has come out of her shell. She refers to the caregiver as 'Mommy' and states that she really likes home. [Daughter] is comfortable, secure, and stable with the caregiver. Per minor's therapist, the minor has a strong bond with the foster mom. . . . She states that the child sees her foster mom as the maternal figure."

In sum, the court concluded the "incidental benefit gained in the child's relationship with her parents" was outweighed by "the benefit the child would gain in a permanent home that provides love, nurturing, security, safety, and stability."

DISCUSSION

Father, mother, and grandmother appeal the court's orders. Father and grandmother appeal the court's denial of father's section 388 petition to modify the placement of daughter. Father and mother appeal the court's termination of parental rights and concomitant determination that adoption was the preferred permanent plan for daughter.

Although appellants claim the court denied the section 388 petition "without a hearing," the court allowed counsel to appear and make arguments concerning the petition. This argument was lengthy enough to comprise 17 transcript pages in the appellate record. Counsel for father ended her argument by stating, "At the hearing we will be able to provide to the court [clarification with regard to] the paternal grandmother's position." It is unclear why this clarification could not have been provided in the petition itself, thereby avoiding father's perceived need for an additional hearing. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1080-1081 [hearing under section 388 need not always include live testimony]; Cal. Rules of Court, rule 5.570(h) [subject to certain exceptions, court has discretion to determine whether to allow live testimony].) Regardless, as discussed below, the court did not abuse its discretion even if one assumes it denied the petition "without a hearing."
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Petition to Modify Placement

The court's denial of the "section 388 petition without a hearing is reviewed for abuse of discretion. [Citations.] We must uphold the juvenile court's denial of appellant's section 388 petition unless we can determine from the record that its decisions '"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 Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)

"Section 388 provides the 'escape mechanism' . . . built into the [dependency] process to allow the court to consider new information." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Under section 388, subdivision (a), "[a]ny parent . . . 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 . . . ."

"If the petition . . . states a change of circumstance or new evidence and it appears that the best interest of the child may be promoted by the proposed change of order or termination of jurisdiction, the court may grant the petition" after conducting a noticed hearing within 30 days after the petition is filed. (Cal. Rules of Court, rule 5.570(e)(1)-(g); § 388, subd. (d).) "A petition for modification must be liberally construed in favor of its sufficiency." (Cal. Rules of Court, rule 5.570(a); see In re Marilyn H., supra, 5 Cal.4th at pp. 309-310.) But "if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; see Cal. Rules of Court, rule 5.570(d)(1) [court may deny the section 388 petition "ex parte" if petition fails to state change of circumstance or new evidence, or fails to show "requested modification would promote the best interest of the child"].)

The court was well within its discretion in denying father's section 388 petition without a full evidentiary hearing. Father's petition established a change in circumstances, in that paternal grandmother was now willing to serve as a foster parent for daughter. But this new fact did not establish a prima facie showing that a modification of the court's previous orders would promote daughter's best interests.

This is not a case in which SSA or the court failed to honor the preference accorded in dependency cases to related caregivers. (See § 361.3, subd. (a); In re Joseph T. (2008) 163 Cal.App.4th 787, 794-798 [relative placement preference continues throughout reunification period].) Instead, on the eve of the hearing to terminate parental rights and after the termination of the reunification period, the court legitimately concluded father's last-ditch effort to place daughter with paternal grandmother was not in the best interests of daughter, even taking into account daughter's longstanding non-parental relationship with paternal grandmother. Daughter had established a strong, successful parental relationship with her caregiver over the previous year. The court was not obligated to disrupt this relationship because father and paternal grandmother belatedly came to terms with the imminent consequences of parents' inability to regain custody of daughter. (See In re Stephanie M. (1994) 7 Cal.4th 295, 319-322.)

Benefit Exception to Termination of Parental Rights

Section 366.26, subdivision (c)(1)(B)(i), provides in relevant part: "If the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . 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." (See also Cal. Rules of Court, rule 5.725(d)(2).)

Parents do not contest the court's finding that daughter will likely be adopted. "Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)." (In re S.B. (2008) 164 Cal.App.4th 289, 297.) Parents claim the court should not have terminated parental rights based on the so-called "benefit exception," i.e. there is a "compelling reason for determining that termination [of parental rights] would be detrimental to" daughter (§ 366.26, subd. (c)(1)(B)) because parents "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 uncontested that parents have maintained regular visitation. The issue is whether daughter would benefit from continuing her parental relationship with mother and/or father. "Although the statute does not specify the type of relationship necessary to derail termination of parental rights, case law has required more than 'frequent and loving contact.' [Citation.] '[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. 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 Cliffton B. (2000) 81 Cal.App.4th 415, 424.) Even assuming parents "maintained a relationship that may be beneficial to some degree" with daughter (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350), such showings are insufficient to derail the legislative preference for adoption at this stage of the proceedings if the relationship "does not meet the child's need for a parent." (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." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

"The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs." (In re Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted.) Our review of the entire record convinces us that substantial evidence supports the court's finding on this issue. (See In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) Daughter was relatively young when she was detained; she spent crucial years in the custody of other caregivers, including her current caregiver. As set forth in detail above, parents did enough during the dependency case to make the decision a difficult one for the trial court. But substantial evidence supports a conclusion that neither mother nor father fulfilled a parental role for daughter. The court was entitled to conclude that any harm in terminating daughter's relationship with parents would be minimal in comparison to the security and stability she stood to gain by being adopted.

DISPOSITION

The postjudgment orders are affirmed.

IKOLA, J.

WE CONCUR:

O'LEARY, P. J.

RYLAARSDAM, J.


Summaries of

In re L.A.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Feb 16, 2012
G045772 (Cal. Ct. App. Feb. 16, 2012)
Case details for

In re L.A.

Case Details

Full title:In re L.A., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY…

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

Date published: Feb 16, 2012

Citations

G045772 (Cal. Ct. App. Feb. 16, 2012)