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In re A.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 28, 2020
E073423 (Cal. Ct. App. Jan. 28, 2020)

Opinion

E073423

01-28-2020

In re A.L., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.T., Defendant and Appellant.

Vincent W. David, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J254902) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Vincent W. David, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

I.

INTRODUCTION

T.T. (Mother), is the mother of A.L., who is a non-verbal and autistic child. In 2014, when he was six years old, the San Bernardino County Department of Children and Family Services (the Department) removed A.L. from Mother's care after she was arrested for a physical altercation while intoxicated from alcohol. A.L. remained in foster care for five years. In February 2019, Mother filed a petition under Welfare and Institutions Code section 388 requesting to be reunified with A.L. After a contested evidentiary hearing, the juvenile court denied Mother's petition, terminated her parental rights, and selected adoption as the permanent plan.

Unless otherwise noted, all statutory references are to the Welfare and Institutions Code. --------

On appeal, Mother argues the juvenile court abused its discretion in denying her section 388 petition. Mother contends (1) the juvenile court erred in denying her section 388 petition because her circumstances have changed and reunification with A.L. would be in his best interests and (2) the juvenile court failed to apply the parent benefit exception. (§ 366.26, subd. (c)(1)(B)(i).) We conclude the juvenile court reasonably denied the petition because Mother's circumstances had not changed and reunifying Mother and A.L. was not in A.L.'s best interests. We also conclude the juvenile court did not err by not applying the parental benefit exception because Mother did not consistently and regularly visit A.L. and Mother failed to show that terminating her parental rights was detrimental to A.L. We therefore affirm the juvenile court's order denying the petition.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2014, when A.L. was six years old, the police responded to Mother's residence due to a report of domestic violence. When the police arrived, Mother was drunk and stated that her boyfriend had slapped her and poured alcohol on her. Although Mother claimed A.L. did not witness the incident because he was asleep, the police arrested Mother for child endangerment. At the time, Mother had three convictions for driving under the influence (DUI), one battery charge, and one charge for immoral acts before a child. A.L. was removed from Mother's care and placed into foster care.

In June 2014, the Department filed a section 300, subdivision (b) petition on A.L.'s behalf. The Department alleged Mother was unable to care for A.L. because of her substance abuse and domestic violence issues, and recommended reunification services. The juvenile court found the petition's allegations true, removed A.L. from Mother's care, and ordered reunification services, including two-hour visits with A.L. per week.

Mother continued reunification services throughout 2014. Her case plan consisted of programs for counseling, parenting, and domestic violence, an outpatient program, drug testing, and a 12-step program.

In June 2015, the Department recommended continued services for Mother. She had completed her counseling, parenting, and domestic violence programs, but she had not completed her substance abuse program. She also missed four drug tests and failed to submit proof of attending the 12-step program. Given her progress, however, the Department ultimately recommended that A.L. be returned to Mother. On June 25, 2015, the juvenile court ordered A.L. be returned to Mother.

Less than ten days later, however, Mother got into a head-on accident while driving drunk. The other driver suffered a broken hip and was airlifted to the hospital. Mother denied she was drunk at the time and blamed the other driver. Mother's boyfriend also told the Department that they had recently gotten into a physical altercation. Accordingly, on August 5, 2015, the Department filed a subsequent petition seeking to remove A.L. from Mother's care. The juvenile court ordered A.L. removed from Mother's care and placed him into foster care the next day. Mother's boyfriend's child, A.L.'s half-sibling, also was removed from Mother's care.

In August 2015, the Department recommended that Mother not receive any reunification services. Pointing to Mother's continued inability to remain sober and her denial that she had a substance abuse problem, the Department believed Mother had not benefited from reunification services. The Department also was concerned that Mother continued to remain in relationships involving domestic violence.

In September 2015, the juvenile court terminated Mother's reunification services and selected a permanent placement plan of foster care for A.L. Mother was allowed weekly two-hour supervised visits with A.L.

In March 2016, A.L. was placed in a foster home. Because his foster mother, Ms. N., did not want to adopt him, but was willing to provide him with long-term care, the Department maintained A.L. in foster care while exploring other options.

Mother was allowed to visit A.L. at a visitation center. After she missed five visits, however, she was terminated from the visitation center.

Mother's visits in late 2017 and early 2018 were "sporadic." She cut visits short, was late to others, and also cancelled and missed several other visits. During one visit, Mother screamed at A.L. when he soiled himself. In March 2018, because of her "extremely inconsistent" visits with A.L., the Department recommended, and the court ordered, that Mother's visits be reduced to twice per month for two hours. The juvenile court also ordered Mother to confirm her visits 24 hours in advance.

Ms. N. supervised Mother's visits with A.L. Mother asked Ms. N. to visit with A.L. unsupervised. The Department continued to be concerned about Mother's sobriety because she called Ms. N. and spoke incoherently and with slurred speech. The juvenile court ordered that Mother's visits remained supervised.

A.L. was placed into the care of Ms. S., Ms. N.'s daughter, on an emergency basis. In March 2018, the Department recommended that A.L. remain with Ms. S. in permanent placement with the goal of adoption.

In September 2018, the Department advised the juvenile court that Mother and A.L.'s aunt had gotten into a physical altercation. The juvenile court ordered that Mother's visits with A.L. remain supervised and limited to two hours, twice per month.

In July and October 2018, Mother only visited A.L. once. And in May, June, August, and November 2018, Mother visited A.L. on a semi-monthly basis. She did not visit A.L. in September 2018. Mother also canceled visits in January, February, and March 2019.

In January 2019, the Department recommended that Mother's parental rights be terminated and that the permanent plan be adoption with the S. family. At the time, A.L. was 11 years old and had been in seven different placements since 2014. Mr. and Mrs. S. had cared for A.L. for over three years and wanted to adopt him.

In February 2019, Mother filed her section 388 petition. She sought A.L.'s return to her custody or, alternatively, reinstatement of reunification services and an increase in the frequency and length of her visits with A.L. Mother argued reunification was in A.L.'s best interests because he was "deeply bonded" to her and she "never missed" visits with him.

The Department recommended that the petition be denied. The Department contended that Mother had not benefited from reunification services. In support, the Department noted that Mother continued to engage in domestic violence and had not remained sober. The Department noted that in November 2018, three months before Mother filed her section 388 petition, the police had responded to Mother's residence in response to a report of domestic violence. Mother and A.L.'s half-sibling's father had drunk alcoholic beverages and got into a physical altercation. Mother punched the father three times and pulled his t-shirt off, which left red marks and scratches on his neck and back. Mother was therefore arrested for battery. (Pen. Code, § 243, subd. (e)(1).)

The Department also noted that Mother's visits were inconsistent until March 2018, and she continued to miss or cancel visits through March 2019. Further, the Department observed that Mother often did not engage with A.L. during the visits and he would watch movies, use Mother's cell phone, or she would talk with the visitation monitor.

The Department further argued reunification was not in A.L.'s best interests because he was bonded and attached to the S. family, but not to Mother. The S. family provided for all of A.L.'s needs and gave him a loving and supporting environment.

In April 2019, the juvenile court held a prima facie hearing on Mother's section 388 petition and held a contested section 366.26 hearing. The juvenile court denied Mother's petition, terminated her parental rights to A.L., and set the permanent placement plan as adoption.

Mother timely appealed.

III.

DISCUSSION

A. Standard of Review and Applicable Law

"Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion." (In re J.C. (2014) 226 Cal.App.4th 503, 525; see In re Stephanie M. (1994) 7 Cal.4th 295, 318.) "'"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." [Citations.]'" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) The juvenile court's decision will not be disturbed unless the court "'"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citations.]" (In re Stephanie M., supra, at p. 318.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522; accord, In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)

Under section 388, a juvenile court order may be changed or set aside "if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) Here, we find that there is no new evidence of changed circumstances.

B. The Juvenile Court Did Not Abuse its Discretion in Denying Mother's Section 388 Petition

Mother contends the juvenile court abused its discretion when it denied her section 388 petition because (1) her circumstances have changed and (2) providing her reunification services would be in A.L.'s best interests. We conclude the juvenile court did not err in rejecting the petition on both grounds.

1. Mother's circumstances have not changed

Mother contends that her circumstances have changed because, at the time of her section 388 petition, two of A.L.'s half-siblings were "in her care, a home inspection was completed and no safety issues were found." We disagree.

"Not every change in circumstance can justify modification of a prior order." (In re A.A. (2012) 203 Cal.App.4th 597, 612, citing In re S.R. (2009) 173 Cal.App.4th 864, 870.) "The change[d] . . . circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate." (In re S.R., supra, at p. 870, citing In re Daijah T. (2000) 83 Cal.App.4th 666, 674.) Further, "[t]he change in circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged order." (In re A.A., supra, at p. 612, citing In re Mickel O. (2011) 197 Cal.App.4th 586, 615.)

In November 2018, three months before Mother filed her section 388 petition, she was arrested for battery after the police responded to her residence due to a report of domestic violence involving Mother. The incident occurred because Mother and her boyfriend had been drinking alcoholic beverages and got into an argument. Mother punched the father several times, pulled off his t-shirt, left red marks on his neck, and scratch marks on his back. Two months earlier, in September 2018, Mother got into a physical altercation with A.L.'s aunt.

A.L. was removed from Mother's care due to her substance abuse problems and conduct involving domestic violence. Given that these issues persisted until shortly before Mother filed her section 388 petition, the juvenile court reasonably determined that Mother's circumstances had not changed. Accordingly, the juvenile court did not abuse its discretion in denying Mother's section 388 petition.

2. A.L.'s best interests

Mother asserts the juvenile court abused its discretion in finding that denying reunification services to Mother and allowing A.L. to be adopted were in A.L.'s best interests. We disagree.

Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, disapproved on another ground in John v. Superior Court (2016) 63 Cal.4th 91, 98-100.) By the point of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) After reunification efforts have terminated or been bypassed, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) This is a difficult burden to meet when reunification services have been bypassed or terminated because "[a]fter the termination of reunification services [or bypass of services], a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) In fact, there is a rebuttable presumption continued foster care is in the child's best interest. (Ibid.) Such presumption applies with even greater strength when adoption is the permanent plan. (Ibid.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Mother failed to show that reunification services would advance A.L.'s need for permanency and stability. (In re J.C., supra, 226 Cal.App.4th at p. 527.) It is not enough for Mother to assert she and A.L. were bonded or that she had made other progress. Nor can Mother simply argue reunification services would be in A.L.'s best interests because he would benefit from being with Mother and his other "maternal family members who could provide them with the culture, heritage and traditions they will lose." She must rebut the presumption that continued placement with A.L.'s current caretakers was in A.L.'s best interest. (In re Marilyn H., supra, 5 Cal.4th at p. 310.)

Mother did not do so. By the time of Mother's section 388 petition, A.L.'s foster parents had cared for him for over three years. They have provided him with all of his needs, he is bonded to them, and they have provided him a loving and supportive home. His foster parents plan on adopting A.L. and providing him with a permanent home where his needs will be met consistently.

Mother, on the other hand, has suffered from alcohol abuse problems and has engaged in domestic violence. She has not consistently visited with A.L. and, despite years of reunification services, he has been returned to her care for a total of 10 days, during which time Mother got into a serious car accident because she drove while under the influence of alcohol.

"Once reunification services are terminated . . . the focus of the proceedings changes from family reunification to the child's interest in permanence and stability." (In re G.B. (2014) 227 Cal.App.4th 1147, 1163.) Here, Mother failed to make a showing that granting her section 388 petition was in A.L.'s best interest. (See In re Jasmon O. (1994) 8 Cal.4th 398, 419 ["[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody and companionship of the child."].) The juvenile court did exactly what is mandated by law—it focused on A.L.'s permanence and stability. By all accounts, A.L.'s foster parents—his future adoptive parents—can best serve A.L.'s interests at this time. In light of the overwhelming evidence that A.L.'s interests would not be best served by affording Mother reunification services, we conclude the juvenile court did not abuse its discretion denying Mother's section 388 petition.

Finally, we reject Mother's unsupported contention that the juvenile court "did not consider the evidence presented in the section 388 petition supporting reinstating reunification services" and focused only "on the part of [Mother's] section 388 petition requesting immediate return of the children to her care." Nothing in the record suggests the juvenile court failed to consider Mother's request for additional reunification services or that the juvenile court failed to "fully consider all [of] the evidence." Instead, the record shows the juvenile court found that termination of Mother's parental rights and making A.L. available for adoption was in his best interests based on the evidence presented. Thus, the juvenile court impliedly found that reunification services with Mother was not in A.L.'s best interests. For the reasons outlined above, the juvenile court did not abuse its discretion in reaching that conclusion.

C. The Juvenile Court Did Not Err in Finding the Parental Benefit Exception Did Not Apply

Mother asserts the juvenile court erred in failing to apply the parental benefit exception to terminating parental rights under section 366.26, subdivision (c)(1)(B)(i). We disagree.

1. Applicable Law and Standard of Review

The Legislature prefers adoption where possible. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Once the juvenile court finds a child is adoptable, the parent bears the burden of proving one of the exceptions to terminating parental rights exists. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) "[I]t 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 Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

The parental benefit or beneficial relationship exception applies where "'[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.'" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of proving that the exception applies. (Ibid.) "When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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 B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)

For the beneficial relationship exception to apply, '"the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.'" (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) The parent must show more than frequent and loving contact or pleasant visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) "'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.'" (Jason J., supra, at p. 937.)

In deciding whether the parental benefit exception applies, "'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 J.C., supra, 226 Cal.App.4th at pp. 528-529.)

"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination [of parental rights] would be detrimental to the child. [Citations.]" (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; In re Noah G. (2016) 247 Cal.App.4th 1292, 1300-1301.)

Whether there is a beneficial parent-child relationship is a factual issue; thus, the substantial evidence standard applies to this component of the court's decision. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) But whether there is a compelling reason to determine the child would suffer detriment if parental rights are terminated is a '"quintessentially' discretionary decision," (id. at p. 1315.) because it requires the court to "determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption." (Ibid.)

2. Analysis

The juvenile court did not make explicit factual findings as to whether the parental benefit exception applied. We conclude substantial evidence supports the juvenile court's implied factual findings that the benefits of A.L.'s adoption outweighed the benefits of maintaining Mother's relationship with him and terminating Mother's parental rights was not detrimental to A.L. The juvenile court therefore did not err in failing to apply the parental benefit exception.

There is nothing in the record to indicate that Mother occupied a parental role in A.L.'s life. Notably, she did not have unsupervised visits with A.L. during the course of the dependency. Further, the record shows that, during several supervised visits, Mother was not engaged with A.L. At best, Mother was "'a friendly visitor or friendly nonparent relative, such as an aunt.'" (In re Jason J., supra, 175 Cal.App.4th at p. 938.)

Mother never assumed a parental role with A.L. during his dependency, and there is no evidence indicating that her parental role improved during the course of the dependency. Just three months before Mother filed her section 388 petition, she was arrested for battery due to domestic violence—a core reason why A.L. was removed from her care. And the incident occurred, in part, due to Mother and the father's consuming alcoholic beverages. As outlined above, a key reason A.L. has not been returned to Mother's care is because of her alcohol abuse problems, which she has consistently denied. (See In re Marcelo B. (2012) 209 Cal.App.4th 635, 644-655 [parental benefit exception did not apply where both parents denied their alcohol abuse problems, which negatively affected child's well-being].)

On the other hand, A.L. has a strong, positive relationship with the S. family, who have cared for him for over three years and plan on adopting him. They provide for all of his needs and can provide him with a safe, stable, and permanent home.

There is nothing in the record to show that terminating Mother's parental rights would be detrimental to A.L. Even if Mother had consistently visited A.L., and even assuming he became upset if she did not visit and when she left visits, Mother did not establish A.L. had such a substantial, positive emotional attachment to her that he would be greatly harmed by terminating her rights. There was no substantial evidence that A.L. would be greatly harmed to override the strong preference for adoption or that Mother would be able to sufficiently meet A.L.'s needs. "[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." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

Mother never progressed beyond supervised semi-monthly visits during the dependency and did not adequately address her substance abuse. Even if A.L. expressed some temporary distress when Mother left visits, there was no evidence of any lasting problems with A.L. In fact, A.L. was thriving in the care of his future adoptive family. A parent may not establish the parental benefit exception applies "by merely showing the child derives some measure of benefit from maintaining parental contact," which is at best what Mother has done here. (In re C.F. (2011) 193 Cal.App.4th 549, 559.) We therefore conclude substantial evidence supports the trial court's implied factual finding that the parental benefit exception did not apply.

IV.

DISPOSITION

The juvenile court's order denying Mother's section 388 petition and terminating her parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J. We concur: SLOUGH

J. RAPHAEL

J.


Summaries of

In re A.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 28, 2020
E073423 (Cal. Ct. App. Jan. 28, 2020)
Case details for

In re A.L.

Case Details

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

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

Date published: Jan 28, 2020

Citations

E073423 (Cal. Ct. App. Jan. 28, 2020)