Opinion
A142921 A143733
07-20-2015
In re K.S. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. A.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J1300483, J1300484)
A.M. (Mother), the mother of K.S. and D.S., appeals an order terminating her parental rights. Our review is limited to the narrow question of whether the juvenile court erred when it determined the benefits of continuing Mother's relationship with the children did not outweigh the benefits of adoption. The record supports the court's ruling, so we affirm.
BACKGROUND
Detention and Disposition
Three-year-old K.S. and 10-month-old D.S. were detained in April, 2013 after a neighbor found K.S. wandering through their apartment complex unsupervised and wearing only a blanket. According to a detention/jurisdiction report filed by the Contra Costa County Children and Family Services Bureau (the Bureau), Father said K.S. had wandered off for 30 minutes to an hour while he was asleep with D.S. and a maternal aunt left the apartment without telling him. When a social worker conducted a home study five days later, K.S. opened the door to the apartment and D.S. crawled up to the front door. It took several minutes for Father to respond to the social worker's calls for an adult to come to the front door, and he appeared to have just woken up. The apartment was very messy. Clothes and dishes were strewn about and there was an empty beer bottle on the floor.
Father told the social worker that he and Mother had been together for six years and that he looked after the children while she worked and went to school for her GED. A criminal protective order was in effect from May 9, 2011, until May 9, 2014, that required Father to stay 100 yards away from Mother and K.S., but Father told the social worker he was unaware of it. He said there had been one non-physical incident of domestic violence when K.S. was a baby, for which he spent a month in jail and completed anger management classes. The social worker was unsuccessful in her efforts to contact Mother. Father was briefly jailed for violating the protective order, and the children were placed in a foster home.
On May 22, 2013, Mother admitted to amended allegations that she failed to arrange for the children's adequate care and supervision and engaged in domestic violence with Father in K.S.'s presence.
Father has not appealed, so our discussion will omit some facts not directly relevant to Mother's appeal.
The Bureau's disposition report recommended providing reunification services for Mother, who "has provided care and support of the children since their birth and appears to be lovingly attached" to them and motivated to participate in services. Father's whereabouts were unknown. Although Mother had sustained a significant injury in the May 2011 domestic violence incident, she had difficulty viewing the incident as serious, and did not see the need for a restraining order. She resumed living with Father, and had a second child with him. Mother was visiting the children weekly and engaging in parent education services. On June 20 the juvenile court found she was doing well with her case plan.
The Review Hearings
On September 17, 2013, the Bureau submitted a report for the three-month review hearing. It continued to recommend that Mother be provided with family reunification services. On July 25 Father told the social worker that he had just been released from jail on child abuse charges stemming from the 2011 incident. He said he intended to return to jail to " 'just serve his time.' " He also said he had attended anger management classes until May 2013, but had to stop when he was forced to leave Mother's home. He said he and Mother violated the protective order because "they . . . are all that they have and [Father's] mother was incarcerated and [Mother's] parents were tired of helping." He acknowledged using alcohol, ecstasy, cough syrup and MDMA as recently as June 2013. His probation officer reported that he was not complying with his probation conditions, which included 52 weeks of anger management, substance abuse treatment, and to stay away from Mother and K.S. The social worker described Mother as a "trusting and sweet young lady who needs to find her voice and the strength to protect herself and her children." She was making good progress with domestic violence classes, intended to pursue her case plan and to end her involvement with Father.
On November 7, 2013, the court ordered that Father be provided reunification services. By December 19, Mother was attending domestic violence classes, had started individual therapy, and was successfully participating in weekly unsupervised and overnight visits. According to the Bureau's report of that date, Mother was able to "identify the various forms of abuse, and has detailed a safety plan. Despite this, [Mother] questioned whether she should have the criminal protective order modified to allow contact between herself, [K.S.] and [Father] without considering whether [Father] has addressed any of the Bureau's concerns as well as probationary requirements. It appears that while [Mother] is a loving and kind parent, she continues to need education regarding indicators of risk and how to ensure the children as well as her safety." Father was still incarcerated and had not informed the Bureau what, if any, services he had utilized. With his release scheduled for December 22, the Bureau felt it was premature to return the children and recommended three more months of reunification services for both parents.
On January 6, 2014, the social worker arrived unannounced at Mother's home the morning following an overnight visit. Mother told the social worker that she had started individual counseling, but she had attended only one initial session and failed to show for her next appointment. Asked about contact with Father, Mother said she had not heard from him, that he had not seen the children, and that she was unaware if he had been in contact with any of her family or friends. The social worker inspected the home and found Father hiding under a blanket in the bedroom closet. Mother acknowledged that she allowed him in because he had nowhere to go. Father told the social worker that when he came to Mother's home he was unaware the children would be there, although he admitted that he should have left once he knew they were present. He also said the protective order was no longer in place and that he was no longer on probation. Neither was true. Probation confirmed that both the order and Father's probation were in effect until May 2014. The children were returned to their foster parent and overnight visits were suspended.
After this incident, the Bureau no longer believed Mother was genuinely engaging in her case plan or understood how her desire for a relationship with Father threatened the children's safety. "Unfortunately, when the mother allowed the father into the home for what appears to be an overnight visit at the minimum, her actions show that she was disingenuous in her previous statements. Furthermore, it appears that her ability to engage in thoughtful risk assessment is compromised by her desire for a relationship with the children's father despite his failure to address substance abuse, and domestic violence concerns." Father had failed to attend a recent court date and a meeting with the social worker to discuss referrals for his case plan. This was "another indicator of the lack of significant progress in addressing the reasons for the Court dependency." The Bureau revised its recommendation to ask that the court terminate reunification services for both parents and set a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26.
Unless otherwise noted, further statutory citations are to the Welfare and Institutions Code.
The contested six-month review hearing was held on February 6, 2014. Mother was present but did not testify. Father, who had been either homeless or incarcerated since the children were removed in May 2013, testified he had stayed with Mother "a couple of times" when he had nowhere else to go. He knew he should not have been at Mother's apartment on January 6, but he missed his kids. He and Mother were not "in a relationship as of right now," but they wanted to be a family again. Father did not attend any of the court dates until he was jailed in July and did not contact the social worker until after he was released in December. He signed up for random drug testing about two weeks before the February 6 hearing but had not yet been called to start testing. He did not sign up sooner because "I didn't have a phone or anyplace to live or anything . . . ." A few days before the hearing he tried unsuccessfully to schedule a counseling session. He got a referral to anger management classes within two weeks of the hearing. He had not completed domestic violence classes for his case plan, but between 2011 and 2013 he attended 25 domestic violence classes required for his criminal case. He did Phase I of the "DEUCE" drug program while he was incarcerated, but did not complete it because he "got into a little bit of trouble" and was transferred to a more restrictive facility where it wasn't offered.
The Referral Order
Both parents asked the court for additional time and reunification services. Counsel for the children concurred with the Bureau that services should be terminated, although "with a heavy heart." The court agreed. It explained to Father: "you just simply have not shown this Court in any way, shape, or form that I could conceivably find that the children would be safe in your care at this time. You just simply haven't been able to show this Court. I find you credible in some ways, and then I find you getting uncredible [sic] towards the end of your testimony, find it to be not credible. [¶] But I think you're very credible in the care that you have for the mother of the child. And I can't trust the mom. I'd like to be able to trust the mom, but I wouldn't trust the mom if I gave you three more months of services and, boom, he'd be right back in the children's lives, hasn't done any of the things asked when he had an opportunity at the DEUCE Program. If you had completed that DEUCE Program, that would have shown me anger management, that would have shown me drug program. [¶] It's a fabulous program but no, by your own actions . . . they moved you out of that program . . . . They had to put you in the more restrictive program here in our county jail. So by your own actions, you blew out of the one place that really could have helped you."
The court adopted the Bureau's recommendation to terminate services and set a hearing under section 366.26. At the same time, it advised both parents that they had four months within which to show through a section 388 motion "that you can really do things," and specifically admonished Mother to put her children ahead of Father and not "let him ruin this for you." Like the children's counsel, the court made its ruling with a "heavy heart." "I'm sorry. I'm so sorry, because I think—most of all, I'm sorry for mom, because I think she's the biggest victim next to the children in this case."
Neither parent ever filed a section 388 petition.
While the Bureau advocated terminating visitation, the children's counsel recommended weekly visits: "I would very much like to see both parents prove us wrong. I would like to see there be incredible progress made in the time that they now have available to both of them. I would like to see them show to the Court and to counsel that they are ready to do anything and everything humanly possible to make these children safe. [¶] . . . It can happen. But it's all up to [Father] and mom, and the visitation is integral." The court ordered twice-monthly supervised visits that could be increased in the Bureau's discretion.
The Section 366.26 Hearing and Order
The Bureau's report for the section 366.26 hearing, dated May 22, 2014, recommended termination of parental rights with a permanent plan of adoption by the children's foster parent. The report included a detailed description of both parents' visits with the children, which generally went well. However, some visits had troubling aspects. In late November 2013, Mother had the children for two nights but asked the foster mother to pick them up on the first morning because they were crying and she could not calm them down. The foster mother could not pick them up that day. Mother called again the second day because the children were crying and asked the foster parent to calm them down. The maternal grandmother told the foster mother that K.S. said she wanted to "go home (to the foster home.)" In March 2014 Mother disclosed that Father had kicked in her door when she would not let him in the house. She had not discussed this incident with her domestic violence group or sought help from the group facilitator. Father denied that he engaged in domestic violence, needed substance abuse treatment, or that there were child safety issues.
The Bureau noted that Mother participated in much of her case plan but did not utilize the services available to her to set appropriate boundaries with Father. She lied about her contact with him and had allowed him in the home while the children were present, where he drank alcohol despite the requirement in his case plan that he remain sober. The Bureau's assessment was that Mother had a parent/child relationship with both children, but that the relationship did not outweigh the benefits of legal permanence for the children.
The matter came on for the section 366.26 hearing on July 10, 2014. The children's counsel agreed with the Bureau's recommendation to terminate parental rights. The social worker testified that one of Mother's family members had called her that morning expressing concern that Mother was abusing methamphetamines. Both parents were present, but neither testified. The court found that the relationship between the children and their parents did not outweigh the children's need for a permanent, stable relationship, and expressly declined to find that termination of visitation would be detrimental. It found by clear and convincing evidence that the children were likely to be adopted and terminated parental rights as to both parents. Mother filed timely notices of appeal from the order terminating parental rights.
The Second Section 366.26 Hearing and Order
The next day, the court recalled the case on its own motion and vacated its order over the Bureau's objection. It explained: "Yesterday the court terminated parental rights. [¶] I had—well, I just couldn't sleep. I woke up in the middle of the night, thought I had made a mistake. [¶] . . . [¶] I am going to recall the case and look at it again. I apologize to everybody, but when this happens to me in the middle of the night and I wake up and I can't sleep because I've made a mistake, I have to rectify it if possible. [¶] . . . [¶] So I am going to set a new [§ 366.26] hearing, and we'll notify the parents."
We initially stayed the juvenile court's July 11 order setting this new hearing pending our consideration of a writ petition filed by the Bureau. But on September 11, 2014 we denied the petition and dissolved the stay. The reinstated section 366.26 hearing was held on November 6, 2014. The Bureau submitted two new reports, dated October 24 and November 4, 2014, without objection. Sadly, these reports painted a much darker picture of the parents' relationship than had previously been revealed. Police had responded to loud and sometimes violent domestic altercations at Mother's home on numerous occasions since reunification services were terminated. On February 28, 2014, Father damaged and split a door frame when Mother would not open the door. On March 25 Father punched holes in the apartment walls, leaving what appeared to be blood on the walls, and when he was located and arrested, told police that "voices" told him to go to the apartment. On April 28 Father was arrested after Mother reported he refused to leave her apartment after an argument. On May 1 Father refused to leave the apartment after spending the previous night and beat Mother when she asked him to leave in the morning. Father told police that Mother was his girlfriend and that he had been living in her apartment.
On May 11 police responding to a neighbor's report of a domestic fight found Mother holding a 10-inch steak knife and apparently hallucinating that Father and others were getting in through the walls and large "stick bugs" were making her furniture and belongings vibrate and move around. Mother was placed on a section 5150 hold. On June 14 police responding to a report of a woman screaming inside the apartment found Father hiding in a closet. On June 28 police stopped Mother and Father walking together and arrested Father for violating the protective order. Mother told police that they were dating and that Father stayed at her apartment two or three days per week. On July 29, police again found Father hiding in the apartment after yet another report of a loud altercation at the apartment. On September 27 Father was stopped by police as he walked with another male who was found to have drugs on his person. Although the court had reinstated visitation on September 19, Mother did not request visitation until October 20 and did not attend a scheduled visit on October 29.
The rescheduled section 366.26 hearing was held November 6, 2014, over the Bureau's objection that the court lacked jurisdiction to modify or reconsider its prior order terminating parental rights. The court made all necessary findings by clear and convincing evidence and terminated both parents' parental rights. Mother filed a second appeal, which we ordered consolidated with her appeal from the termination order issued July 10.
DISCUSSION
I. Jurisdiction
We first turn to Mother's contention that section 366.26, subdivision (i)(l) limits our review to the July 10, 2014 order because the juvenile court lost jurisdiction to issue any further orders when it initially terminated her parental rights. Section 366.26, subdivision (i)(1) provides that "[a]ny order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it . . . ." (Italics added.) Mother's contention is a novel one, but we need not address it here. Even were we to assume that the court lacked the power to set aside its July 10 order terminating parental rights and that the second order is thus void for lack of jurisdiction, we are satisfied, for the reasons set forth below, that the record supports the July 10 order.
II. The Beneficial Relationship Exception
Mother contends the court erred when it declined to find the benefits of her relationship with the children precluded the termination of her parental rights. We disagree.
If a child is found adoptable at the section 366.26 hearing, the juvenile court must terminate parental rights and place the child for adoption unless it finds termination would be detrimental to the child because, inter alia, "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) The child's relationship with the parent must "promote[] 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "Moreover, '[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.' " (In re K.P. (2012) 203 Cal.App.4th 614, 621; In re G.B. (2014) 227 Cal.App.4th 1147, 1166.) We review this finding for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
While we recognize that other courts have reviewed such a determination to see whether it is supported by substantial evidence (see, e.g., In re G.B., supra, 227 Cal.App.4th at p. 1166 fn. 7; In re Dakota H., supra, 132 Cal.App.4th at p. 228), we need not address the divergence here. As we observed in In re Jasmine D., supra, 78 Cal.App.4th at page 1351, the practical differences between the two standards of review in these cases are minimal and unlikely to be outcome determinative. In this case we would affirm under either standard. --------
We appreciate the difficulty of the decision the juvenile court confronted when it first terminated parental rights on July 10. It is plain that Mother loves her children, that their visits were often warm and caring, and that she would likely have prevailed in regaining custody had she not failed to extricate herself from her relationship with an abusive and dangerously neglectful partner. It is unspeakably sad that she was unable to do so, despite the services she was offered toward that end. But we cannot say it was an abuse of the court's discretion to conclude, reluctantly, that her continued involvement with Father posed an unsurmounted obstacle to her ability to maintain a beneficial parental relationship with her very young children. On the other side of the equation, the children were strongly attached to the foster mother who had been caring for them for over a year, wished to adopt them, and was undergoing an adoptive home study. "[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The court did not abuse its discretion when it made the difficult decision to terminate parental rights on July 10.
Finally, although it is not necessary to our decision, in light of the Bureau's objection to the court's reconsideration of its order, we cannot help but observe that the factual record before the juvenile court for the November 6, 2014 termination hearing contains considerable detail of events that occurred prior to the court's July 10 hearing that first resulted in termination of parental rights. Some of these events were put before the court in summary fashion without detail in the Bureau's May 22, 2014 report. Yet, it seems the Bureau should have been aware of them and they could be easily verified, such as the circumstances of mother's 5150 hold on May 11, or Father's April 28 arrest. Had the juvenile court been advised of these details surrounding mother and father's relationship in a timely fashion for the July 10 hearing, the judge would likely have been more at peace with her original decision and her sua sponte reconsideration unnecessary.
DISPOSITION
The order terminating Mother's parental rights and selecting a permanent plan of adoption is affirmed.
/s/_________
Siggins, J.
We concur: /s/_________
McGuiness, P.J.
/s/_________
Pollak, J.