Opinion
A143845
09-30-2015
In re L.K., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. H. K. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. J1200188)
INTRODUCTION
L.K.'s parents, H.K. (Father) and C.V. (Mother), appeal from an order terminating their parental rights. Mother claims the court abused its discretion in finding the beneficial relationship exception to termination of parental rights did not apply. Father asserts the court erred in denying his petition under Welfare and Institutions Code section 388, finding he had not made prima facie showing of changed circumstances. We find no merit in their contentions, and affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL BACKGROUND
We have recited the background of this case in our previous opinion in Mother and Father's original writ proceeding challenging the juvenile court's order setting a hearing under section 366.26, and thus quote from that opinion: "When L.K. was two months old, the Bureau filed a dependency petition alleging failure to protect the minor . . . due to Mother's 'chronic and ongoing substance abuse problem.' The detention report prepared by the social worker indicated Mother had tested positive for methamphetamine while pregnant with L.K. and declined an offer of outpatient substance abuse treatment at the time. L.K. was the first of Mother's six children who did not test positive for drugs at birth. Mother had 26 previous referrals to the Bureau, and 'her history of illegal drug use dates back more than 25 years.'
"At the social worker's home visit with Mother three days after L.K.'s birth, Mother stated she and Father were ' "not together right now . . . he's back living in Oregon." ' After the petition was filed on February 6, 2013, indicating a last known address for Father in Valley Springs, California, Father filed a notification of mailing address form indicating his address was the same as Mother's.
"In an apparent error, Father indicated his house number had one digit different from Mother's."
"As to jurisdiction, Mother submitted the matter to the court based on the social worker's report. The court sustained the failure to protect allegation based on Mother's chronic and ongoing substance abuse and ordered L.K. placed with Mother under a family maintenance plan. The court reserved disposition findings as to Father, but ordered visitation to be arranged for Father once a month.
"In May 2012, the court ordered that L.K. remain in the physical custody of Mother and Father, and adopted a case plan for Father that required him to engage in substance abuse testing and a 12-step program.
"In August 2012, the Bureau filed a supplemental petition alleging Mother was not in compliance with her family maintenance plan and Father had tested positive for methamphetamine. Mother informed the social worker Father was ' "not at her home a lot," ' and would soon be leaving her home to ' "turn himself in due to an outstanding warrant in Grass Valley." ' The court ordered L.K. detained.
"At the contested jurisdictional hearing on the supplemental petition in October, the court ordered Father to be 'drug tested forthwith.' The test was positive for opiates. In November, the court sustained the allegations of the supplemental petition and set a dispositional hearing for February 2013.
"The December 2012 disposition report indicated the Bureau had initiated an 'absent search' to locate Father, and 'the results are pending.' On February 27, 2013, Father filed a notification of new mailing address. At the dispositional hearing the same day, the court ordered family reunification services and visitation for both parents. L.K. remained in out-of-home placement.
"In the status review report for the August 7, 2013 hearing, the Bureau indicated Mother was making progress in her case plan, including testing negative for drugs. She had, however, been discharged from her outpatient program because 'she was not meeting their requirements,' and had been arrested on an outstanding warrant. There had also been two incidents in which L.K. was injured while in Mother's care, and an altercation at Mother's home between her father and brother for which police were called. Father had 'not made himself available to the Bureau,' and therefore had not completed any part of his plan.
"Father failed to appear at the October 16, 2013 hearing, and the court ordered termination of his reunification services. The court ordered one hour per month visitation with L.K. for Father, and ordered continued reunification services to Mother.
"In January 2014, Father filed a 'Request to Change Court Order,' seeking to have his reunification services reinstated. He indicated he had 'completed multiple programs while in custody and has now been released.' The court denied the request.
"In the status report for the February 7, 2014 hearing, the Bureau reported Mother had obtained a part-time job and was in compliance with her reunification plan, with the exception of the counseling requirement. The Bureau recommended against returning L.K. to Mother's home based in part on four incidents involving L.K.'s health and safety. On two occasions, L.K. sustained injuries while in Mother's care, both involving injury to her face and around her eye. Mother reported L.K. simply tripped because she was learning to walk, and did not seek medical care. The foster mother brought L.K. to a doctor, who referred her to an eye specialist for further treatment. L.K. was also reported to 'drag' her left foot, but Mother denied there was a problem, testifying 'when I have her, she doesn't drag her leg.' L.K. was referred to the Regional Center for the foot-dragging issue, as well as a 'possible speech delay.' L.K. also returned from a visit to Mother with a staph infection. Mother was 'reportedly aware her older daughter had a staph infection when this visit occurred,' but denied this to the Bureau. L.K. has asthma, but reportedly only needs to use her inhaler after visits with Mother. The foster mother reported L.K. smells like cigarette smoke after visits with Mother, though Mother denies smoking while L.K. is visiting and indicated she smoked only outside. There were also a number of disturbing incidents involving L.K.'s half brother, including a report Mother was seen hitting the boy and calling him a 'stupid motherfucker' in a grocery store. Although Mother denied hitting him or calling him 'stupid' the Bureau felt the incident reflected 'a general lack of parenting skills.'
"On March 24, 2014, the court found substantial risk of detriment to L.K. if she were returned to Mother, and set a section 366.26 hearing. (H.K. v. Superior Court of Contra Costa County (June 24, 2014, A141428) [nonpub. opn.].) We denied Mother and Father's writ petitions seeking to vacate that order. (Ibid.) The section 366.26 hearing was continued, ultimately until December 2014.
In July 2014, Father filed a section 388 petition to change the court orders terminating reunification services to him, setting the section 366.26 hearing, and denying his prior section 388 petition to change the "[o]rder requesting services." In response to the section 388 petition, the court indicated it agreed with the pre-printed portion of the JV-183 form stating "The court orders a hearing on the form JV-180 request because the best interest of the child may be promoted by the request." The court set a hearing for the section 388 request for August 29, which was continued until October 2014. The petition was opposed by the Bureau and L.K.
Mother also filed a section 388 petition, but does not raise any issues regarding the denial of that petition in this appeal.
At the outset of the October hearing, the Bureau asked the court to deny an evidentiary hearing because neither of the parents' petitions made "even a prima facie showing that it would be in this child's best interest for the court to grant further services." The court indicated it was "still deciding whether [it was] going to allow" an evidentiary hearing. Each party made an offer of proof regarding the evidence it would present, and the court accepted the proffers. The matter was continued until November.
After hearing argument at the resumed hearing in November, the court stated "[A]s I understand the proffers, they're basically a continuation of a prior 388, which was denied, and that occurred in June, and basically the same thing has happened since June." The court concluded it was "going to deny the request for the 388 given the history of this case and history of drug abuse of the mother and the father. Being clean for a time, you know, is not sufficient change in circumstances to warrant a 388. [¶] . . . [¶] The issue is whether the permanence and stability of the child and the need for those things is outweighed by the benefit of the biological mother and father to have a continuing relationship and whether that is outweighed by adoption. . . . So the court does not grant the 388 as to either parent."
Father had previously filed a section 388 petition. (H.K. v. Superior Court of Contra Costa County, supra, A141428.)
The court then proceeded to the section 366.26 hearing. The social worker testified L.K. had been placed with her foster parent for over two years, since she was 10 months old, and was "extremely attached" to her. In contrast, she testified L.K. had "a positive relationship with [Mother] as a friend, as someone that she visits on a monthly basis." Mother testified L.K. was "really, really attached" to her at visits, and "knows [she's] her mom." L.K. calls the foster mother "mom" because "that's where she's been." Father testified he did not want his parental rights terminated, and he was ready, willing and able to have L.K. in his home. The court found L.K. was likely to be adopted, and that the parents had not met their burden of demonstrating the beneficial relationship exception to termination applied. The court ordered parental rights terminated.
DISCUSSION
Mother's Claim of a Beneficial Parental Relationship
Mother claims the court abused its discretion in not finding there was a beneficial parental relationship such that her parental rights should not be terminated. Father joins in her claim, asserting the court must reverse the termination of his parental rights if it does so for Mother.
"As mother recognizes, some courts have applied different standards of review. (In re K.P. [(2012)] 203 Cal.App.4th [614], 621-622 [question of whether beneficial parental relationship exists is reviewed for substantial evidence, whereas question of whether relationship provides compelling reason for applying exception is reviewed for abuse of discretion]; In re C.B. (2010) 190 Cal.App.4th 102, 122-123 . . . [abuse of discretion standard governs review, but 'pure' factual findings reviewed for substantial evidence]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 . . . [applying abuse of discretion standard].) On the record before us, we would affirm under either of these standards. (E.g., Jasmine D., at p. 1351 [practical differences between substantial evidence and abuse of discretion standards are minor].)" (In re G.B. (2014) 227 Cal.App.4th 1147, 1166, fn. 7 (G.B.).)
The beneficial parental relationship exception to termination of parental rights is set forth in section 366.26. If the court determines "it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption . . . unless [¶] . . . [¶] (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." (§ 366.26, subd. (c)(1)(B)(i).) "After the parent has failed to reunify and the court has found the child likely to be adopted, it is the parent's burden to show exceptional circumstances exist." (In re Autumn H. (1994) 27 Cal.App.4th 567, 574 (Autumn H.).) "Because 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 Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
The " ' "benefit from continuing the [parent/child] relationship" ' [exception] . . . mean[s] 'the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' " (In re S.B. (2008) 164 Cal.App.4th 289, 297 (S.B.).) In other words, " 'the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and sense of belonging a new family would confer. (Ibid.) Even where such an attachment exists, it does not bar adoption if the child looks to a prospective adoptive parent to meet her needs. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 231.) The parent must prove that the parental relationship " 'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' " (S.B., supra, at p. 297, quoting Autumn H., supra, 27 Cal.App.4th at p. 575.) " 'When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.' " (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Mother claims L.K. would benefit from a continuing relationship with her for five reasons: "L.K. was born negative for exposure to drugs," she lived with Mother for the first nine months of her life, Mother regularly visited "throughout the dependency," Mother's sister also regularly visited, and Mother had "overcome the conditions which gave rise to the dependency" by the time of the section 366.26 hearing.
It appears the brief is actually referring to L.K.'s half sister, not Mother's sister. --------
Although Mother visited L.K. on a monthly basis after April 2014, the social worker characterized Mother and Father as "like friends, you know. Friends that come to visit once a month." To meet her needs for comfort and emotional support, L.K. sought out her foster/adoptive mother, to whom the social worker testified L.K. was "extremely attached."
Mother acknowledges "the law requires more than just visitation and a positive relationship in order to establish a 'compelling reason' not to terminate parental rights." None of the other factors cited by Mother, however, demonstrate that termination of parental rights would be detrimental to L.K. While it is laudable that L.K. was the first of Mother's six children to be born testing negative for exposure to drugs, (H.K. v. Superior Court of Contra Costa County, supra, A141428) that fact does not constitute the type of exceptional circumstance precluding termination of parental rights three years later. The fact that L.K.'s older half sister also attended the visits with L.K. is a positive circumstance in that L.K. was able to be acquainted with her biological relative, but again not an exceptional circumstance militating in favor of not terminating Mother's parental rights.
Lastly, Mother asserted she had "overcome the conditions which gave rise to the dependency." Mother indeed had made significant progress in addressing her methamphetamine addiction. She had tested negative for drugs for approximately two years, and at the time of the section 366.26 hearing had been employed for approximately one year. As the Bureau noted, however, Mother has had scattered periods of sobriety during her 25-year history of substance abuse. The periods of sobriety coincided with Bureau involvement with the family. Her current period of sobriety was certainly a positive step, but was neither a changed circumstance since the court's prior order, nor sufficient standing alone to demonstrate the parental relationship promotes L.K.'s well-being to such a degree as to outweigh the well-being she would gain in a permanent adoptive home.
In sum, Mother failed to demonstrate "a compelling reason for determining that termination would be detrimental" to L.K. (§ 366.26, subd. (c)(1)(B)) and the court's termination order was not an abuse of discretion.
Father's Section 388 Petition
Father maintains the court violated his due process rights in denying his section 388 petition without an evidentiary hearing. He claims once the court checked the box on the JV-183 form—which states "The court orders a hearing on the form JV- 180 request because the best interest of the child may be promoted by the request"—it was required to hold an evidentiary hearing and could not request an offer of proof as to Father's prima facie showing.
"Under section 388, a parent may petition to change or set aside a prior order 'upon grounds of change of circumstance or new evidence.' (§ 388, subd. (a)(1); see also Cal. Rules of Court, rule 5.570(a).) The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted' by the new order. (§ 388, subd. (d).) Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests. [Citation.] [¶] A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests. [Citations.]" (G.B., supra, 227 Cal.App.4th at p. 1157, fn. omitted.) We review "a juvenile court's decision to deny a section 388 petition without a hearing for abuse of discretion." (Id. at p. 1158.)
The court in G.B. considered and rejected the same issue raised by Father in this case. There, the mother claimed the juvenile court improperly denied her an evidentiary hearing on her section 388 petition because "the court initially checked the box on the form order indicating that a hearing would be held 'because the best interest of the child may be promoted by the request.' " (G.B., supra, 227 Cal.App.4th at p. 1158.) The G.B. court held "a contextual review of the record here shows that in checking the box on the form order indicating such a finding, the juvenile court was not deciding that a prima facie case had been made but was instead scheduling the matter for the parties to argue the issue—an option not included on the form. When the court heard the parties' oral argument on whether an evidentiary hearing was required, it expressly clarified that it had liberally construed mother's petition 'in order to have an opportunity for the parties to argue for a hearing.' " (Ibid., italics omitted.)
The court in this case similarly indicated at the outset of the hearing that it was allowing the parties to make an offer of proof in order to determine if an evidentiary hearing was required. Each party made an offer of proof.
Father maintains, as did the parent in G.B., that the procedure employed by the juvenile court denied him his due process rights under In re Lesly G. (2008) 162 Cal.App.4th 904 (Lesly G.). The G.B. court rejected that claim, explaining that in Lesly G., "the juvenile court used an ambiguous Judicial Council form (which has since been updated) to rule on a parent's entitlement to a hearing on a section 388 petition requesting the resumption of previously terminated reunification services. [Citation.] On the form, the juvenile court checked three internally inconsistent boxes: one indicating a hearing would be held because the parent had established a prima facie case, one setting a date and time for the hearing, and one indicating a hearing would not be held. [Citation.] The clerk also sent a notice to the parties informing them that a hearing had been set. [Citation.] The court continued a scheduled selection and implementation hearing to review the section 388 petition, and it ordered the social services agency to address the petition. [Citation.] At the beginning of what was anticipated to be a combined section 388 hearing and a selection and implementation hearing, the juvenile court denied the section 388 petition, apparently without explanation. [Citation.] In a later written order, the juvenile court simply stated that the proposal to resume reunification services would not promote the children's best interests. [Citation.] [¶] In assessing this procedural history, Lesly G. concluded that the juvenile court's denial of the section 388 hearing violated the parent's due process rights because the form order had already ruled that the section 388 petition stated changed circumstances and might promote the children's best interests. [Citation.] The social service agency conceded on appeal that the ruling on the form order established that the juvenile court had not summarily denied the petition for lack of alleging a prima facie case. [Citation.] Thus, the question facing the Court of Appeal was whether the juvenile court properly considered the section 388 petition without holding a hearing after it had already concluded that the parent had made a prima facie case for such a hearing. [Citation.]" (G.B., supra, 227 Cal.App.4th at p. 1159.)
The circumstances in Lesly G. differ from those here. The court in this case indicated, at the outset of the hearing, it was "still deciding whether [it was] going to allow" an evidentiary hearing on the section 388 petition. Each party made an offer of proof regarding the evidence it would present, and the court accepted the proffers. As in G.B., "the juvenile court here explained at the first opportunity that the form order was not intended to be a ruling that [Father] had made a prima facie case and was entitled to an evidentiary hearing." (G.B., supra, 227 Cal.App.4th at p 1159.)
Even assuming that by checking the box on the form the court had already concluded that Father had made a prima facie case, Father's claim fails. As the G.B. court concluded: "even if we were to construe the form as a ruling that [Father] had stated a prima facie case, we would reject [the] argument that it barred the juvenile court from changing its mind after considering the parties' oral argument. Lesly G. . . . does not stand for the blanket proposition . . . that a juvenile court is forever bound by a box it checks on a form order suggesting a certain finding. A juvenile court has the authority to change, modify, or set aside a previous order sua sponte if it decides that a previous order was 'erroneously, inadvertently or improvidently granted.' [Citation.] Thus, even if the juvenile court here had determined when it checked the box that [the] section 388 petition established a prima facie case, it retained the discretion to change that determination upon further consideration, and it did so. (§ 385.)" (G.B., supra, 227 Cal.App.4th at pp. 1158-1160.)
Under the circumstances, the court's denial of a full evidentiary hearing on Father's section 388 petitions, after determining he had not made the required prima facie showing, was not a denial of his due process rights.
DISPOSITION
The challenged termination and section 388 orders are affirmed.
/s/_________
Banke, J.
We concur: /s/_________
Margulies, Acting P. J.
/s/_________
Dondero, J.