Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. J517572A, Carol Isackson, Judge.
NARES, J.
D.D. appeals a juvenile court order denying her petition under Welfare and Institutions Code section 388 in which she requested the court modify previous orders. She also appeals an order under section 366.26, subdivision (c)(3) that efforts be made to find an appropriate adoptive home for her son, L.D. She argues the court abused its discretion by denying her section 388 petition, and substantial evidence did not support the court's finding the beneficial parent-child relationship exception to adoption and termination of parental rights of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating parental rights. The San Diego County Health and Human Services Agency (the Agency) maintains D.D's appeal from the section 366.26, subdivision (c)(3) order is premature.
Statutory references are to the Welfare and Institutions Code.
We affirm the order denying D.D.'s section 388 petition. We hold D.D.'s appeal from the order under section 366.26, subdivision (c)(3) is not premature and affirm the order, concluding substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude terminating parental rights and adoption.
FACTUAL AND PROCEDURAL BACKGROUND
On October 21, 2008, the Los Angeles County Department of Children and Family Services petitioned under section 300, subdivisions (b), (d) and (g) on behalf of then seven-year-old L.D., alleging he was at substantial risk because D.D. suffered from mental and emotional problems, including having delusions; she believed several people had sexually abused L.D.; her use of marijuana made her unable to provide adequate care; and L.D.'s father had not provided for him.
The social worker reported D.D. said her former boyfriend, her adult daughter's (M.L.'s) boyfriend, numerous other men and other "powerful people" had molested L.D. She said there was a conspiracy to cover up the abuse and her cousin was instigating the abuse. L.D. said a boy molested him while the boy's father held his hand over L.D.'s mouth. D.D. admitted smoking marijuana daily. She said she smoked the drug for religious purposes and meditation. She denied she had mental health issues. However, in 2007 she had been diagnosed with a psychotic disorder and prescribed medication.
M.L. said she was concerned about D.D.'s care of L.D. She reported she and her boyfriend shared an apartment with D.D. and D.D. had made false accusations against them. A family friend said D.D. had not enrolled L.D. in school.
The court ordered L.D. detained. On December 18, 2008, it found the allegations under section 300, subdivisions (b) and (d) of an amended petition to be true, declared L.D. a dependent child, ordered him placed in foster care and ordered reunification services.
The court deleted from the original petition allegations under section 300, subdivision (b) that several men had sexually abused L.D. and an allegation under section 300, subdivision (g) that L.D.'s father had not provided for him.
For the six-month review hearing, the social worker reported D.D. had moved to San Diego in December 2008 and had had little contact with L.D. D.D. said she was forced to leave Los Angeles because a motorcycle gang was after her. The court continued L.D. as a dependent child and continued services.
In August 2009, at D.D.'s request, the case was transferred to San Diego County. For the 12-month review hearing, the social worker reported D.D. had begun counseling and completed a parenting class, but she had not enrolled in sexual abuse therapy for nonprotective parents. She tested positive for marijuana. The psychologist who evaluated her provided a provisional diagnosis of delusional disorder, persecutory type. D.D. denied needing therapy or sexual abuse therapy. She did not visit L.D. regularly, and she made inappropriate comments to him during telephone visits. At the 12-month review hearing in January 2010, the court found reasonable services had been offered and there was no substantial probability of return by the 18-month date. It terminated services and set a section 366.26 hearing.
The social worker reported D.D. gave birth to her fourth child, N.D., in January 2010. At the time of N.D.'s birth, N.D. and D.D. tested positive for marijuana. D.D. and N.D. lived with N.D.'s father, who had an extensive drug and criminal history.
The social worker assessed L.D. as adoptable. He was intelligent, friendly, likeable and well mannered. A relative had expressed interest in adopting him, and numerous approved adoptive families were interested in adopting a child with his characteristics. The social worker said D.D.'s visitation had been inconsistent, she had not participated in drug treatment or sexual abuse treatment and she denied having any mental health problems. L.D. enjoyed his visits with D.D. and she brought him toys, food and clothing. At times he did not want the visits to end. L.D. said he wanted to live with D.D., but understood she was working on her own issues. He would agree to be adopted by a relative and would like to visit D.D. and his foster mother. On June 7, 2010, he was removed from the foster home because of allegations he was being physically abused.
The social worker said L.D. had been born positive for marijuana, and D.D. had a history of psychosocial problems and homelessness since age 12. The maternal uncle reported she had a long drug and alcohol history and had physically abused M.L. and verbally abused L.D. D.D. denied she had ever had a mental health diagnosis. She continued to believe L.D. had been molested by several men.
On June 15, 2010, D.D. petitioned under section 388, requesting that L.D. be placed with her with family maintenance services. She argued she had participated in therapy and was no longer paranoid or delusional. She said she and L.D. shared a bond and her therapist would testify she was able to care for him. The court granted an evidentiary hearing.
In October 2010, at the section 366.26 hearing and the hearing on D.D.'s section 388 petition, D.D. testified she had been in counseling for three to four months and was learning about how to better protect a child. She said she had moved to San Diego after a dispute with M.L., who D.D. says is a liar and is living with a child molester. She faulted the Agency for her missed visits. She said she grew up using marijuana but stopped when the court ordered her to do so. She said numerous men had molested L.D. as part of a conspiracy. She denied not enrolling him in school and insisted he never should have been removed from her care.
The psychologist who conducted a bonding study said D.D. has a moderate parental bond with L.D. and he would suffer damage from severing the bond.
D.D.'s therapist testified D.D. had gained insight through therapy and had alleviated the issues that had brought L.D. into the dependency system. He said he had not observed her to be currently delusional or under the influence of drugs, but her underlying paranoia makes her suspicious and guarded. He said her marijuana use, lack of sleep, poor diet and transient lifestyle exacerbated her paranoia and, without these factors, it was possible her delusional episodes could be abated, but she would likely still believe the molestations occurred.
The social worker testified D.D. was in the early stages of therapy. She said D.D. had neglected L.D. when he was in her care and she had exposed him to a transient lifestyle. The social worker said if L.D. had been sexually abused, it was important for D.D. to participate in sexual abuse therapy and she had not done so. She said L.D. wanted to live with D.D., in his current foster home or with relatives. She agreed he would suffer moderate detriment if he no longer had contact with D.D. The social worker recommended identifying adoption as the permanent plan but not terminating parental rights. She said numerous adoptive families were interested in a child like L.D., but she wanted to identify a specific family before recommending terminating parental rights.
After considering the evidence and argument by counsel, the court denied D.D.'s section 388 petition. Then, considering a permanent plan, it found there is a probability of adoption and that L.D. is adoptable. It further found he would not be greatly harmed by terminating D.D.'s parental rights, and the benefits to him of continuing the parent-child relationship would not outweigh the benefits he would gain from adoption. The court did not terminate parental rights, however. It identified adoption as the permanent placement goal, but found L.D. was a difficult to place child and ordered efforts be made to locate an appropriate adoptive family within 180 days. (§ 366.26, subd. (c)(3).)
DISCUSSION
I. Section 388 Petition
D.D. contends the court abused its discretion by denying her section 388 petition. She argues she made substantial changes and alleviated the protective issues, including giving up marijuana, participating in therapy and maintaining consistent, quality visitation, and she showed returning L.D. to her care was in his best interests.
A. Legal Principles
After a court has terminated reunification services, "the focus shifts to the needs of the child for permanency and stability." (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1800.) However, "[e]ven after the focus has shifted from reunification, the [statutory] scheme provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
A change of circumstances may be brought to the court's attention through a petition under section 388. Section 388 provides in part:
"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court... for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. [¶]... [¶]
"(d) If it appears that the best interests of the child may be promoted by the proposed change of order, ... the court shall order that a hearing be held...."
In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the minor's best interests. (§ 388; Cal. Rules of Court, rule 5.570; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The petitioner bears the burden of proof to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A reviewing court will not disturb a court's discretionary ruling in a dependency proceeding " ' "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
B. Application
The court did not abuse its discretion by denying D.D.'s petition. D.D. had participated in only 18 therapy sessions and was just beginning to address her various issues in therapy. Although her therapist testified D.D. had shown insight and alleviated the protective issues, D.D. still blamed M.L. for acting out when she was a child, she did not admit problems with her mental stability and she continued to suffer from paranoia.
After two years of L.D.'s dependency, D.D. continued to insist her stories of his multiple molestations were true. D.D. and L.D. had a moderate bond, but he needed stability. He said he wanted to live with D.D., but he also said he wanted to stay in his foster home or live with relatives. D.D. has a long drug use history and a history with child protective services and with homelessness. She had not attended any sexual abuse therapy for nonprotective parents or substance abuse therapy. Her visits continued to be supervised, and she had to be reminded not to talk about sensitive issues with L.D. Also, she was still dependent on others and did not have a stable residence. The court did not abuse its discretion by denying her petition to modify the previous orders.
II. Section 366.26 , Subdivision (c)(I)B)(i) Exception to Termination of Parental Rights and Adoption
D.D. contends substantial evidence does not support the court finding she did not establish the exception to termination of parental rights and adoption of section 366.26, subdivision (c)(1)(B)(i). She argues she visited consistently and she and L.D. had a bonded beneficial parent-child relationship that should be preserved.
The Agency asserts D.D.'s appeal regarding this issue is premature because the court did not terminate D.D.'s parental rights, but only identified adoption as the permanent plan goal and continued the case to allow the Agency to identify a potential adoptive home. We begin our discussion of this issue by addressing the Agency's argument.
A. Legal Principles
1. Appealability of the Section 366.26 , Subdivision (c)(3) Order
Section 395 provides "[a] judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment." (§ 395, subd. (a)(1).) "As a result of these broad statutory terms, '[j]uvenile dependency law does not abide by the normal prohibition against interlocutory appeals....' " (In re S.B. (2009) 46 Cal.4th 529, 532 (S.B.).) The dispositional orders are the "judgment" specified in section 395 and subsequent orders, with some exceptions, are appealable "orders after judgment." (In re Daniel K. (1998) 61 Cal.App.4th 661, 668.) " ' "A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on appeal from a later appealable order." [Citations.]' " (S.B., supra, 46 Cal.4th at p. 532.)
At the time of a section 366.26 hearing, in most cases, the child has been under juvenile court jurisdiction for an extended period, and the court has considered a return to parental custody during one or more review hearings. (See § 366.21.) The procedures for selecting and implementing a permanent plan for the child are set out in section 366.26. (§ 366.26, subd. (a).) If it is likely the child will be adopted, the court must terminate parental rights unless it has been shown that termination of parental rights would be detrimental to the child according to specified circumstances. (§ 366.26, subd. (c)(1).) The Legislature has determined that adoption is the preferred permanent plan. (§ 366.26, subd. (b).)
Section 366.26, subdivision (c)(3) provides a means for the court to postpone deciding on a permanent plan for the child. It states:
"If the court finds that termination of parental rights would not be detrimental to the child... and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days."
At the expiration of the 180-day period, the court is required to hold another hearing and proceed under section 366.26, subdivision (b) and make findings and orders in the following order of preference: (1) terminate parental rights and order adoption; (2) without terminating parent rights order tribal customary adoption; (3) appoint a relative as legal guardian; (5) appoint a nonrelative as legal guardian; or (6) order long-term foster care with periodic court review. (§ 366.26, subd. (c)(3).)
In 2009 our Supreme Court, in S.B., supra, 46 Cal.4th 529, reviewed court of appeal decisions on the issue of whether orders under section 300, subdivision (c)(3) are immediately appealable. In S.B., the appellate court had dismissed a mother's appeal from orders entered under section 366.26, subdivision (c)(3), reasoning she was challenging only the finding her children were probably adoptable, rather than an appealable order. The Supreme Court ruled this reasoning was not correct and that the mother had appealed not from the finding, but from the order that efforts be made to locate an appropriate adoptive family. (S.B., supra, 46 Cal.4that p. 534.) The court held orders under section 366.26, subdivision (c)(3) are immediately appealable. (S.B., at p. 537.) It disapproved, to the extent they conflicted with the holding of S.B., the opinions in In re Y.R. (2007) 152 Cal.App.4th 99; In re Cody C. (2004) 121 Cal.App.4th 1297; and In re Jacob S. (2002) 104 Cal.App.4th 1011. (S.B., supra, 46 Cal.4th at p. 537, fn. 5.)
In S.B., supra, 46 Cal.4 at p. 534, the court noted that at the time In re Cody C., supra, 121 Cal.App.4th 1297; and In re Jacob S., supra, 104 Cal.App.4th 1011were decided, the court had three options for a permanent plan after expiration of the 180-day period: adoption, guardianship or long-term foster care, but that the Legislature later amended section 366.26, subdivision (c)(3) to eliminate long-term foster care as a possible placement, limiting the options available at the end of the 180-day period to guardianship and adoption. (Stats. 2003, ch. 813, § 7; Stats. 2004, ch. 810, § 5.)
Under this version of the statute, the courts in In re Ramone R. (2005) 132 Cal.App.4th 1339, 1349-1350, and In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1438, held an order under section 366.26, subdivision (c)(3) was immediately appealable under the usual rule permitting appeals from postdispositional orders.
The S.B. court stated it found "no persuasive reason for excepting section 366.26 (c)(3) orders from the usual rule of appealability in dependency proceedings" and that section 366.26 orders are appealable under section 395. (In re S.B., supra, 46 Cal.4th at p. 537.) The court noted within the language of the statute the Legislature had neither precluded appeals from nor made other arrangements for review of section 366.26, subdivision (c)(3) orders. It also noted the statute as it then stood permitted selecting only adoption or nonrelative guardianship as the permanent plan for the child at the end of the 180-day period and did not permit relative guardianship even though the statutory scheme places a higher preference on guardianship by a relative. The court suggested that should the Legislature decide to correct this anomaly, it would then have the opportunity to consider the matter of appealability. (S.B., at p. 537.)
Subsequently, in 2009, and effective July 1, 2010, the Legislature again amended section 366.26, subdivision (c)(3). The statute as it now stands provides that after expiration of the 180-day period, the juvenile court, as stated above, has five choices for a permanent plan: termination of parental rights and adoption; tribal customary adoption; relative legal guardianship; nonrelative legal guardianship; or long-term foster care. (§ 366.26, subd. (c)(3); Stats 2009, ch. 287, § 15.)
Section 366.26, subdivision (c)(3) in its present form does not state within the statutory language whether an order under its provisions is immediately appealable. Our review of the Legislative history of the 2009 amendments to the statute has not revealed any indication that the Legislature intended to limit the right to appeal juvenile court decisions under this statute. We therefore follow the guidance provided by our Supreme Court in S.B. that juvenile court orders in dependency proceedings are appealable unless the Legislature has specifically limited the right to appeal. The court made this directive clear when it stated, " '[w]e have repeatedly held that if the Legislature intends to abrogate the statutory right to appeal, that intent must be clearly stated. "The right of appeal is remedial and in doubtful cases the doubt should be resolved in favor of the right whenever the substantial interests of a party are affected by a judgment...." [Citations.]' " (S.B., supra, 46 Cal.4th at p. 537 .) We therefore decide D.D.'s contentions on their merits.
2. The Section 366.26 , Subdivision (c)(I)B)(i) Exception to Termination of Parental Rights and Adoption
If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show termination of parental rights would be detrimental to the child because a specified statutory exception exists. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception." In interpreting the meaning of "benefit" in section 366.26, subdivision (c)(1)(B)(i), this court stated in Autumn H., at page 575:
"In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean 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 reviewing whether there is sufficient evidence to support the trial court's finding, the appellate court reviews the evidence in the light most favorable to the trial court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
B. Application
Assuming that D.D. maintained regular visitation and contact with L.D., substantial evidence supports the court's finding they did not share a parent-child relationship that was so beneficial to L.D. that he would be greatly harmed by severing the relationship. The court did not err by concluding D.D. did not show L.D. would gain more from maintaining his relationship with her than from the stability of a permanent adoptive home.
During visits D.D. often talked about inappropriate topics and asked L.D. questions that worried him and made him tend to withdraw. After some visits he acted out in foster care. D.D. faulted the Agency for her many missed visits. She had not ensured that L.D. was enrolled in school when he was in her care, and she had neglected his medical and dental care. She continued to deny any responsibility for the problems that had resulted in his dependency. Further, L.D. was either repeatedly sexually molested when he was in her care or she had persistent delusions that he had been molested, but she refused to participate in sexual abuse therapy. She continued to believe she did not have mental health problems and insisted L.D. should never have been removed. She blamed others for her circumstances and problems.
At the time of the hearing, L.D. had been out of her care for two years. He enjoyed visits with her, but visits continued to be supervised, and the psychologist who evaluated the bond between them characterized the bond as moderate. L.D. said he would like to live with D.D., with relatives or with his foster mother. Substantial evidence supports the court's finding D.D. did not show the beneficial parent-child relationship exception to termination of parental rights and adoption of section 366.26, subdivision (c)(1)(B)(i).
D.D. misplaces reliance on In re S.B. (2008) 164 Cal.App.4th 289. Here, this court reversed the trial court's finding that the beneficial parent-child relationship exception did not apply after concluding the child would be greatly harmed by loss of the significant positive relationship she shared with her father. The father had complied with every aspect of his case plan, frequently visited his daughter and was devoted to her. She loved him and wanted to live with him. (Id. at pp. 294-295.) D.D. did not make such a showing. Further, while factual comparisons between cases provide insight, these comparisons are not dispositive. The determination on appeal is whether there is substantial evidence to support the trial court's findings that the beneficial parent-child relationship exception did not apply. We conclude that on the facts of this case, the court's findings are fully supported.
DISPOSITION
The orders are affirmed.
WE CONCUR: BENKE, Acting P. J. McINTYRE, J.