Opinion
F074225
03-15-2017
In re ANTONY D., et al., Persons Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. V.B., Defendant and Appellant.
David M. Thompson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14JD0004)
OPINION
APPEAL from orders of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge. David M. Thompson, 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.
-ooOoo-
V.B. (mother) appeals from the juvenile court's orders denying her petition for modification under Welfare and Institutions Code section 388 (section 388 petition) and terminating her parental rights under section 366.26 to her four children - now 10-year-old Antony D., seven-year-old twins Isabel and Destiny T., and six-year-old Xavier T. (collectively the children). Mother contends the juvenile court erred in denying her section 388 petition and by finding the beneficial parent-child relationship exception did not preclude termination of parental rights (§ 366.26, subd. (c)(1)(B)(i).) On review, we conclude the juvenile court properly exercised its discretion and affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The children were adjudged juvenile court dependents in March 2014 after the court sustained allegations under section 300, subdivision (b), that mother was found to be under the influence of methamphetamine while caring for her three youngest children and unable to provide regular care for the children due to her ongoing substance abuse. The juvenile court removed the children from mother's custody and ordered family reunification services for mother and the father of the twins and Xavier, Rick T., but not for Antony's father, Antony D. Mother was required, as part of her court-ordered plan, to complete a parenting class, notify the social worker of any changes in her residence, attend weekly NA/AA meetings, complete a substance abuse assessment and follow any recommendations, submit to random drug testing, and visit the children once a week for one hour under the supervision of the Kings County Human Services Agency (Agency).
Neither father appealed the juvenile court's termination order. --------
The children initially were placed together, but Antony later was moved to a different home due to his aggressive behaviors and tantrums. The twins were drug-exposed in utero. Destiny was diagnosed at birth with hydrocephalus-absent corpus collusum, and a shunt, which remained in place, had been placed to relieve the condition. At the time, no significant concerns were noted regarding the children's development.
The juvenile court continued services for mother and Rick at a September 2, 2014, review hearing. Up to that point, mother's progress had been minimal. Although mother was attending her substance abuse treatment program, she continued to test positive for methamphetamines. Mother claimed she was attending NA/AA meetings, but failed to provide the Agency with verification of attendance. In addition, mother had not enrolled in the parenting class as she did not see the need, since she had completed one prior to the Agency's intervention.
Antony had been diagnosed with ADHD. He had a mental health assessment and was found to need therapy. Antony was having behavioral problems at the foster home, at school, and during visits with mother and his siblings; he did not get along with other children and exhibited behaviors such as yelling, screaming, not following directives, and telling his mother and siblings that he hates them. The other children were not exhibiting any mental or emotional concerns. Destiny had an MRI which showed that the shunt system appeared intact. Mother had been visiting the children inconsistently.
The juvenile court again continued services for mother and Rick at the February 2015 12-month review hearing. Mother was on probation. She was granted deferred entry of judgment, which required her to complete the "PC 1000 program," pay all fines and fees, and not have any negative law enforcement contact. Mother had not yet enrolled in the program, however, because she could not pay the program fees.
Mother had made moderate progress on her court-ordered services. While mother had completed her substance abuse treatment program, she had provided only one clean drug test. Mother claimed she was attending NA/AA meetings, but did not provide the Agency with verification of her attendance. Mother had made some behavioral changes to ensure her children would be in a safe, drug free living environment, but she did not appear to have stable housing, as she had received an eviction notice, and her significant other, Jesse R., had not submitted to a livescan.
Antony's behavior had improved after being placed on psychotropic medication and receiving additional services. Mother had been visiting the children consistently. The children responded well to mother; she was affectionate, engaged, and appropriate with them. Mother noticed that Antony's behavior was calmer and he was not as aggressive toward his siblings.
In July 2015, the juvenile court conducted an 18-month review hearing and terminated both mother's and Rick's reunification services. Mother had made only moderate progress on her court-ordered case plan. She provided the Agency with a positive drug test in March 2015, and a negative one in June 2015. She had not given the Agency verification of attendance at NA/AA meetings. Mother was admitted into a women's shelter in June 2015, which was helping her with housing and searching for a job. Antony was discharged from individual therapy due to his significant progress. Mother consistently visited the children and the visits were going well. The court set a section 366.26 hearing for November 2015. Due to delays in serving notice of the hearing on Antony's father and a substitution of attorney for him, the hearing was continued several times and ultimately held in August 2016.
Meanwhile, in October 2015, the children were placed together in a foster home with the goal of adoption after their previous caretakers indicated they were not interested in adopting the children. For the first two months, Antony had difficulty adjusting to being placed with his siblings, but his behavior improved after he received counseling. Although the caretakers had two other children, one biological and the other adopted out of Tulare County, they were committed to adopting all four children if parental rights were terminated.
In April 2016, mother filed a section 388 petition, asking the juvenile court to return the children to her custody or reinstate family reunification services. Mother alleged she had completed a one-year substance abuse program; had obtained stable, permanent and appropriate housing; regularly attended NA and worked closely with a sponsor; and continued to visit the children consistently. She further alleged the proposed modification would be better for the children because she had rehabilitated herself as a parent, maintained consistent relationships with them, and was in a position to take the children full-time or to work on transitioning them to her care.
In August 2016, the juvenile court conducted a combined hearing under sections 388 and 366.26. The Agency recommended the juvenile court deny mother's section 388 petition. The Agency asserted mother had not shown a true change in circumstances because, although she had completed a substance abuse program, was employed, and had moved from the homeless shelter into her own apartment, she had one positive hair follicle drug test for methamphetamine. The Agency further asserted that even if mother's circumstances had changed, granting the petition would not be in the children's best interests, as the children had a right to a permanent home, they should not wait indefinitely for mother to be free from illegal substances, and they were placed together in a home with caretakers who were willing to adopt them.
The Agency also recommended the juvenile court terminate parental rights, opining the children were adoptable based on their young ages and the absence of any significant medical or developmental concerns, and because an adoptive home was identified. The children had told the caretakers they wanted to be adopted, but had also told the social worker and mother that they wanted to return to mother's care. In March 2016, they told the adoption social worker they wanted to be adopted, but in May 2016, they told other social workers they had "another" mother who they wanted to live with, namely their mother.
When mother's services were terminated, she was given one-hour monthly supervised visits, which she was consistently attending. During visits, the children usually initiated conversation regarding when they would return to mother's care and stated they did not want to be adopted. The children constantly competed with each other for mother's attention and affection. The children did not display any abnormal behaviors when visits ended. The care providers never mentioned any inappropriate behaviors following visits to one social worker, but on May 31, 2016, they mentioned to two other social workers that the children were emotional after visits and said they missed mother.
A social worker visited the children in their placement on August 1, 2016. The children appeared to be very comfortable in the home; they showed the social worker their rooms, pictures of them with the caretakers and their foster siblings, and played with toys in the living room. The children called their female caretaker "mom" and looked to her for comfort. It appeared to the social worker that the children had formed a secure emotional attachment to the current caretakers and their foster siblings. The caretakers were very committed to the children and to providing them with a permanent placement, and wanted to adopt the children.
On August 3, 2016, the social worker spoke with the children about adoption. Antony felt adoption was both good and bad - bad because he missed mother, but good because the caretakers took care of him, drove him places, bought him what he needed, and "protect us really good." Antony added that he felt loved in the home. Destiny stated she "want[ed] to live here with my whole family[,]" which she identified as her siblings, her foster siblings, and the caretakers. Destiny was happy to, and wanted to, be adopted. Isabel also was happy about being adopted. Xavier did not want to be adopted because he wanted to live with mother, and if he were adopted, he could not see his mother anymore. When the social worker explained how adoption would affect Xavier and that he would stay in the current home and be cared for by the current caretakers, Xavier said that "sounds good." It did not appear to the social worker that Xavier understood the implications of adoption. He appeared happy in the home and playing with his siblings, and called the female caretaker "mom[,]" with whom he appeared to have a positive emotional bond.
Mother testified she completed the DBT substance abuse skills program on January 3, 2016, which is a dual diagnosis program and substance abuse class. She used the skills she learned in this program when she visited the children, who seemed to interact with, and pay attention, to her more. She attended NA classes three times a week and received support from members of her church. Mother had been clean for 19 months. During that time, her relationship with the children had improved. Mother had been visiting the children once a month for an hour; the visits went well and the children told her they wanted to come home with her.
Mother had been working at a fast food restaurant the past 10 months and had an apartment that was large enough to accommodate the children. Although the test she provided for the Agency was positive, mother stated she had not used and had been providing negative tests. Mother believed she should be given another opportunity at reunification because everyone deserved a second chance and she was doing a lot better, not only for her children but also for herself.
Mother agreed it was important for the children to have a permanent home that was stable with people who love them, but she felt there might be abuse in the foster home because she had noticed bruises or marks on the children. In addition, she felt Destiny got more attention in the foster home than the other children, which was apparent to her from the children's behavior during visits. Mother did not feel the children really knew what adoption was because they were too young and did not understand what it meant. Mother believed the children were confused when they said they wanted to be adopted and felt they were being coached into saying that.
Adoption social worker Sabrina Dequattro had visited the foster home twice and reviewed the file. She testified she had never seen, either during her visits or in a review of the file, that the children were abused in the home. The children had been in the home for about nine months; they appeared comfortable there and the foster parents were committed to adopting them. The children interacted well with their two foster siblings and behaved like the home was theirs. The children called the foster mother "mom," seemed comfortable in her care, and seemed to love her. Dequattro sensed the foster mother had genuine affection for the children. Dequattro did not witness any one of the children getting more attention than the others.
Dequattro discussed adoption with the children. She believed the older three children had an age-appropriate understanding of adoption and wanted to be adopted. Dequattro denied coaching them and she did not have any indication that anyone else was coaching them. She attempted to explain adoption to Xavier and felt he understood it - at first he said adoption sounded good, but when adoption was mentioned again, he did not fully comprehend it. This was not unusual for a five-year-old. Dequattro confirmed it was the Agency's position that it would be in the children's best interests to free them for adoption because the children had been in foster care since January 2014, they had been in multiple placements, the four of them were now in a home that was committed to adopting them, and they deserved permanency and stability.
Dequattro, who had been assigned the case two months before the hearing, did not discuss guardianship with the caretakers because the case had been in the adoptions unit for a long time and she knew the caretakers wanted to adopt the children. In addition, guardianship did not seem like the best permanent plan. Dequattro thought there was a benefit to preserving the parent/child relationship, which could be done post-adoption. Dequattro thought it would be beneficial for the children to perhaps exchange letters with mother, as they knew their mother and stated they missed her. Dequattro, however, did not believe it would be more important to maintain the children's connection with mother than to free them for adoption because she believed the children deserved permanency and stability, and the home they were in was a stable and permanent home that was committed to them.
Prospective adoptive mother Bridget B. testified the children were doing great in her home, and she and her husband were interested in, and committed to, adopting the children. The children had become part of their family. The children sometimes talked to her about mother, and indicated they cared for and loved her. The children were very bonded with each other and they got along great with the B.'s two other children. The B.'s maintained contact with the birth mother of their adopted child and were open to doing so in this case. The B.'s transported the children to some visits with mother. The children looked forward to the visits and were excited to go. Following visits, the children talked more about missing mother and asked questions about why they could not be with her. The questions would stop, however, after the B.'s told the children it was not mother's or their decision, but it was up to the court, and that mother loved the children very much and was working really hard. Bridget was familiar with legal guardianship, but she felt the children were young enough that they deserved the stability of adoption. The B.'s wanted the children to know they were committed to them 100 percent and she did not feel guardianship entailed the same commitment as adoption.
The juvenile court denied mother's section 388 petition. While the court found mother had demonstrated changed circumstances, she had not shown granting the petition was in the children's best interest, as the children had been in foster care for a good portion of their lives, they were entitled to stability and permanency, and they were adoptable and placed together with foster parents who were willing to adopt them. As to the section 366.26 hearing, the juvenile court found that while there was evidence that the children had a relationship with mother and enjoyed being with her, there was no evidence from which it could find this relationship outweighed the children's right to stability and permanency. Accordingly, the juvenile court terminated parental rights.
DISCUSSION
Introduction
As mentioned above, mother challenges the juvenile court's denial of her section 388 petition requesting reunification services or the return of the children to her care, and the rejection of her claim that the beneficial parental relationship exception applied to preclude termination of her parental rights to the children. Mother in essence argues there was uncontradicted evidence in the record favorable to her request and therefore the juvenile court erroneously found she failed to establish either that it was in the children's best interests to grant the petition or that she shared a beneficial relationship with the children such that termination would be detrimental to them.
As discussed below, however, favorable evidence in the record does not entitle mother to reversal. The fact is that mother faced stiff legal hurdles. First, she bore the burden, as to each request, of persuading the juvenile court to exercise its discretion (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343 (Lorenzo C.); In re Audrey D. (1979) 100 Cal.App.3d 34, 43); thus, to the extent the record is silent on any point, that is a problem of mother's making, not the Agency's or the juvenile court's. Further, issues of fact and credibility are matters for the juvenile court. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Second, at this late stage of the dependency proceedings, the focus had shifted from family reunification to the children's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Indeed, because it was undisputed the children were adoptable, termination of parental rights and adoption were presumed to be in their best interests. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Thus, in hearing mother's requests, the juvenile court was required to recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the children (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.)) and mother had to rebut that presumption.
Similarly, on appeal, it is mother's burden to show the juvenile court clearly abused its discretion—that is, exceeded the bounds of reason—in denying her requests. (Stephanie M., supra, 7 Cal.4th at p. 318; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; Lorenzo C., supra, 54 Cal.App.4th at p. 1339.) When two or more inferences can reasonably be deduced from the facts, we as the reviewing court have no authority to substitute our decision for that of the trial court. (Stephanie M., supra, 7 Cal.4th at p. 319.)
It is against this legal backdrop that we conclude on our review of the record and the relevant law that the juvenile court did not err in denying the section 388 petition and terminating parental rights. This result is in no way intended to demean mother's efforts to turn her life around. Instead, it simply acknowledges that despite her efforts, the law did not entitle her to the relief she sought and the juvenile court did not abuse its discretion in denying her such relief.
Section 388 Petition
While a parent may petition the court to modify a prior order on grounds of change of circumstance or new evidence, the parent must also show that the proposed change would promote the best interests of the child. (§ 388, subds.(a)(1), (b)(1); Cal. Rules of Court, rule 5.570(h).) Having reviewed the record, as summarized above, we fail to see how mother established an order of reunification services or return of the children to her care would be in the children's best interests, that is, it would advance their need for continuity and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.)
Mother urges this court to apply factors legislated by the appellate court in In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532 (Kimberly F.) to evaluate the children's best interests. Those factors identified by the appellate court are: the seriousness of the problem leading to dependency and the reason that problem was not overcome; the strength of relative bonds between the dependent children to both parent and caretakers; and the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Ibid.)
"[W]e decline to apply the Kimberly F. factors if for no other reason than they do not take into account the Supreme Court's analysis in Stephanie M., applicable after reunification efforts have been terminated. As stated by one treatise, 'In such circumstances, the approach of the court in the case of . . . Kimberly F. . . . may not be appropriate since it fails to give full consideration to this shift in focus.' [Citation.] We instead follow the direction of our Supreme Court [in Stephanie M.], holding that after reunification services have terminated, a parent's petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (In re J.C. (2014) 226 Cal.App.4th 503, 527 (J.C.).)
Like the mother in J.C., mother in this case failed to present any evidence establishing the children's best interests in permanency and stability would be furthered by the proposed modification under the analysis of Stephanie M.. (J.C., supra, 226 Cal.App.4th at p. 527.) Instead, in invoking the Kimberly F. factors, mother is essentially claiming it was in the children's best interests to preserve the parent-child relationship mother diligently worked to achieve during the months leading up to the section 366.26 hearing. (J.C., supra, at pp. 526-527.) However, at this stage in the proceedings, the children's best interests were not to delay further permanency and stability in favor of rewarding mother for her hard work and efforts to reunify; the mother's best interests were simply not the focus. (Id. at p. 527.)
The Beneficial Parent/Child Relationship Exception
Mother established she maintained regular visitation with the children throughout their dependency and she enjoyed a happy relationship with them. However, even assuming proof that the children had a significant emotional relationship with mother, such a showing did not compel the juvenile court to find that termination would be detrimental to the children.
Section 366.26, subdivision (c)(1)(B) requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated statutory exception. The "beneficial parental relationship" exception of section 366.26, subdivision (c)(1)(B)(i) requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." "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." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) The parent must establish the existence of a relationship that promotes the child's well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with adoptive parents. (In re Jason J. (2009) 175 Cal.App.4th 922, 936.)
"A juvenile court must therefore: 'balance[ ] 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.' " (Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
Here, no such evidence was introduced. In addition, the juvenile court did not have to ignore the fact that the children had been in foster care for a good portion of their young lives and faced the possibility of tenuous placement for the balance of their childhoods if parental rights were preserved. We therefore conclude the court properly exercised its discretion in rejecting mother's claim.
DISPOSITION
The orders denying the section 388 petition and terminating parental rights are affirmed.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
FRANSON, J.