Opinion
NOT TO BE PUBLISHED
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA Super. Ct. No. J515656C/D
CONSOLIDATED APPEALS from judgments and orders of the Superior Court of San Diego County, Hideo Chino, Commissioner. Reversed and remanded with directions.
McDONALD, Acting P. J.
Doreen E. and Ruben F. appeal a judgment terminating parental rights to their son, Alberto F., under Welfare and Institutions Code section 366.26. Doreen also appeals a judgment terminating parental rights to her daughter, Tatiana V., under section 366.26 and orders denying her petitions for modification under section 388. We reverse the orders under section 388 and necessarily reverse the judgments terminating parental rights, rendering moot the challenges to the court's findings and orders under section 366.26.
Further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Doreen is the mother of five children, Priscilla C., Veronica C., Tatiana V., Alberto F. and D.B., now ages 13, 12, seven, six and 20 months, respectively. Ruben is Alberto and D.B.'s father. These consolidated appeals concern only Tatiana and Alberto; Priscilla, Veronica and D.B. have been returned to Doreen's care.
Priscilla and Veronica's father is deceased. Tatiana's father was incarcerated for a lengthy period and did not establish a relationship with her. When D.B. was born, Doreen identified another man as the father. Testing later confirmed that Ruben was D.B.'s biological father.
In December 2004 San Diego police officers detained Priscilla, Veronica, Tatiana and Alberto (collectively, the siblings) in protective custody after investigating a report the siblings were left without adult supervision. Doreen was not at home when the officers arrived. Clothing, trash, bicycles and miscellaneous junk were piled on the floor throughout the home. The siblings had access to large knives and cleaning agents, and there were several fire hazards in the home.
D.B. was born in July 2006.
The San Diego County Health and Human Services Agency (Agency) filed petitions under section 300, subdivision (b), alleging the siblings were at substantial risk of serious harm because of Doreen's lack of supervision of the siblings, unsafe home conditions and a May 2004 incident of domestic violence in which Ruben was the aggressor. The court detained the siblings.
In early January 2005 Doreen abducted Priscilla and Veronica (together, the girls) from foster care and took them to their paternal grandmother's home in Mexico. About two weeks later, after Doreen was arrested, the paternal grandmother returned the girls to San Diego authorities. Doreen pleaded guilty to felony child abduction. She was sentenced to probation.
At the February 24, 2005, jurisdiction hearing, Doreen submitted to one count alleging she left the siblings without adequate supervision. (§ 300, subd. (b).) The court dismissed the allegations of unsafe home conditions and domestic violence. Doreen's case plan required her to participate in individual therapy and parenting education. The court referred Doreen to the Substance Abuse Recovery Management (SARMS) program. SARMS dismissed the referral for lack of evidence of substance abuse.
The Agency believed it was important to place the siblings together. It evaluated the home of the maternal grandmother (grandmother). Grandmother had a conflicted, adversarial relationship with Doreen. Grandmother's relationships with Priscilla and Veronica were strained. At the disposition hearing, the court approved the Agency's plan to place Tatiana and Alberto (together, the children) with grandmother and to place Priscilla and Veronica in her care after they participated in conjoint therapy with grandmother.
At some point before July 15, 2005, the Agency placed Priscilla and Veronica with grandmother.
In February 2006 Doreen tested positive for methamphetamine. She was then about five months pregnant with D.B. In July the Agency detained D.B. at birth and filed a petition. (§ 300, subd. (b).) In August the court sustained the petition and ordered family reunification services.
At the 12-month review hearing in September 2006, the court terminated reunification services and set a section 366.26 hearing for Tatiana and Alberto. For Priscilla and Veronica, the court selected long-term out-of-home placement and ordered the Agency to provide services to Doreen under section 366.3.
For various reasons not relevant here, the 12-month review hearing, originally scheduled for February 2006, was delayed until September.
The Agency transferred Tatiana's and Alberto's cases to adoptions social worker Stefani Castro. Kirsten Niemann continued as social worker for Priscilla, Veronica and D.B.
In October 2006 the Agency placed Priscilla and Veronica with Doreen on a 60-day trial visit. The girls did well in her care. The Agency extended Doreen's visits with D.B. to overnights and then weekly from Friday to Sunday.
At Niemann's request, Doreen had a comprehensive psychological assessment. Thomas J. Barnes, Ph.D., concluded Doreen had an impulse control disorder and displayed a significant lack of insight with respect to her selection of romantic partners. Her disinterest in seeking another relationship was a positive sign. Dr. Barnes recommended Doreen participate in focused therapeutic services before the Agency returned her other children to her care. He also recommended continued drug testing.
In February 2007 Doreen filed a section 388 petition to return Tatiana and Alberto to her care under a plan of family maintenance services. She alleged it was in the children's best interests to be raised in the same home with their sisters.
In March 2007 the court returned Priscilla and Veronica to Doreen's custody and terminated dependency jurisdiction. D.B.'s case remained open. Doreen continued to participate in therapy, SARMS and a 52-week child abuse treatment group. She was currently in compliance with probation requirements but had been warned after she provided a diluted drug test in December 2006 and again in January 2007.
In reports prepared for the section 388 and section 366.26 hearings, social worker Castro opposed returning the children to Doreen's care and recommended the court free Tatiana and Alberto for adoption by grandmother. Castro opined that "the circumstances which put the children at risk have clearly not been amenable to treatment thus far." She stated that adoption was in the children's best interests because of the length of time they had been in grandmother's care. Castro concluded:
"Both Alberto and Tatiana understand that it is likely that they will be adopted by their grandmother and are beginning to refer to her as mom. Clearly Tatiana and Alberto would benefit from being able to continue their relationship with the sisters and mother, and it appears as if the caregiver will facilitate such visitation in the future."
The section 388 hearing was held on May 7 and 30, 2007. On the morning of May 7, the Agency placed nine-month-old D.B. on a 60-day visit with Doreen.
Social worker Niemann testified she had been working with the family for three years. Doreen made progress in her ability to provide a safe and wholesome environment. She was a "different person" than when Niemann first met her. In March 2007 Niemann determined there was no risk to placing Priscilla and Veronica in Doreen's care. She wanted to be more cautious with D.B. and opposed returning Tatiana and Alberto to Doreen's care during D.B.'s 60-day trial visit. Doreen was doing a "great job" with Priscilla and Veronica but had her hands full, and the Agency was "bringing in an infant on top of it." Niemann testified that caring for all five siblings at once "would be way too overwhelming for mom . . . right now."
Robert Kelin, Psy.D., conducted a psychological evaluation of Doreen in February 2007. He testified there was no evidence Doreen was violent, aggressive or antisocial. She cared about her children and would not intentionally harm them. Dr. Kelin stated that the most serious risk factor to the children was Doreen's choice of partners.
Social worker Castro observed visits between Tatiana and Alberto and their mother and siblings. Alberto typically ran to Doreen at the start of visits. Both children competed for Doreen's attention. Tatiana was happy to see her sisters.
Castro stated that the children would be at risk if returned to Doreen's care. Risk factors included Doreen's history of child neglect, domestic violence, unstable housing, periodic unemployment and substance abuse. Tatiana and Alberto were too young to protect themselves.
The parties stipulated to grandmother's testimony that she contacted Doreen and the children's siblings "on holidays, Easter, Thanksgiving and Christmas, and invited them to share the holidays."
The court found to the extent Doreen had shown some change in circumstances, it was not in the children's best interests to grant the section 388 petition. It reasoned that Tatiana's and Alberto's circumstances and interests differed from those of their siblings. Grandmother was ready to adopt the children. The children's relationships with their sisters and mother would continue. The court stated it could not find a reason to grant the relief requested, and denied the section 388 petition.
At the contested section 366.26 hearing on July 16, 2006, the court reviewed the Agency's reports and its notes of the section 388 hearing. The court determined Doreen did not have a beneficial parental relationship with Tatiana and Alberto, and termination of parental rights would not disrupt the sibling relationships. The court found that adoption was in Tatiana's and Alberto's best interests and terminated parental rights.
DISCUSSION
I
Introduction
Doreen contends the court erred when it denied her section 388 petition. She also asserts the evidence is insufficient to support the court's findings the beneficial parent-child relationship and sibling relationship exceptions did not apply to preclude termination of parental rights. (§ 366.26, subd. (c)(1)(A), (E).)
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
Ruben contends the court erred when it found that the sibling relationship exception to termination of parental rights did not apply. (§ 366.26, subd. (c)(1)(E).) He joins Doreen's arguments to the extent they apply to Alberto.
The Agency contends Doreen does not meet her burden on appeal to show the court abused its discretion when it denied her section 388 petition. It argues substantial evidence supports the court's findings under section 366.26, subdivision (c)(1)(A) and (E).
Minors' counsel states the children's trial counsel favored the outcome at trial and his investigation did not reveal any circumstances that would cause him to vary from trial counsel's position. Minors' counsel does not join the arguments of any party to this appeal.
II
Section 388 Petition
Doreen contends the juvenile court erred when it denied her petition to return Tatiana and Alberto to her care under a plan of family maintenance services. She argues she demonstrated changed circumstances and that it was in the children's best interests to be returned to her care.
The Agency acknowledges Doreen made sufficient progress to allow Priscilla, Veronica and D.B. to be returned to her care. It argues the level of risk in the home was greater for Tatiana and Alberto than it was for Priscilla and Veronica; therefore Doreen's circumstances were changing but not changed with respect to the children. The Agency asserts the court properly determined the children's best interests.
A parent's ability to file a section 388 petition before a section 366.26 hearing provides an "escape mechanism" that lessens the risk of an erroneous deprivation of the parent-child relationship in the event of a legitimate change in circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295, 310; In re Dakota H. (2005) 132 Cal.App.4th 212, 224.) Under section 388, a parent may petition the court to change, modify or set aside a previous order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The parent must also show the proposed modification is in the child's best interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
We review the grant or denial of a petition for modification under section 388 for an abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Although the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion. [Citation.]" (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
A. Doreen Demonstrated Changed Circumstances
When these dependency proceedings began, the identified risks to the children and their siblings included lack of adult supervision, unsafe home conditions and domestic violence. During the case, the Agency also identified as risk factors Doreen's methamphetamine use, pattern of involvement in unsafe relationships and tendency to act impulsively, exemplified by her abduction of Priscilla and Veronica from foster care. Although Doreen entered substance abuse treatment after her positive drug test in February 2006 and began therapy, she did not fully comply with her case plan until D.B. was detained in July 2006. She then consistently participated in therapy, parenting education, SARMS and random drug testing. Doreen made progress in her ability to provide a safe and wholesome environment and improved her parenting skills.
By October 2006 Doreen sufficiently mitigated the identified risks to allow the Agency to place Priscilla and Veronica in her care and to expand visitation with D.B. The Agency was concerned about Doreen's diluted drug tests in December 2006 and January 2007 but did not seek to remove the girls or to suspend D.B.'s visitation. The Agency reported that Doreen continued to make substantial progress with her case plan. In March the Agency recommended the court terminate jurisdiction in the girls' cases, which it did. In May the Agency determined it could safely place nine-month-old D.B. in Doreen's care with family maintenance services.
The Agency argues the risks to Tatiana and Alberto are greater than the risks to Priscilla and Veronica. Even were we to accept the premise that parental neglect presents a greater risk to elementary school age children than to young teens, the Agency's determination that it was reasonably safe to place nine-month-old D.B. in Doreen's care undermines the argument of age-based comparative risk.
The record shows Doreen sufficiently ameliorated the risks in her home after the referral hearing to permit the Agency to safely place three of her children in her care. Doreen's progress is not negated by the family's need for continued support services or her potential for further improvement. At the time of the section 388 hearing, Doreen was adequately parenting three children. This constitutes a legitimate change of circumstances. (In re Marilyn H., supra, 5 Cal.4th at p. 310.) We conclude that the court erred to the extent it did not recognize Doreen's changed circumstances.
B. Doreen Demonstrated That the Proposed Modification Was in the Children's Best Interests
Doreen asserts the court applied an arbitrary standard to determine the children's best interests and ignored the "best interests" analysis set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532 (Kimberly F.). In Kimberly F., a division of this court held that a one-dimensional "better household" test is not dispositive in determining the child's best interests. (Id. at p. 530.) Instead the trial court should consider: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Id. at pp. 531-532.)
The Agency contends the court did not err in determining the children's best interests because the Kimberly F. analysis is discretionary. Applying Kimberly F., the Agency argues Doreen did not demonstrate that it was in the children's best interests to grant the petition: Doreen delayed participating in treatment services and used methamphetamine, and the children lived with grandmother for more than two years and were bonded to her. The Agency also argues there was no evidence Doreen could properly care for all five children.
The "child's best interests" is a complex concept that requires the trial court to evaluate a number of factors. (Kimberly F., supra, 56 Cal.App.4th at p. 530.) These factors will vary according to each child's needs and circumstances. There is no "one size fits all" formula in dependency court. The trial court acts within its discretion if it identifies and considers factors important to the child's interests. The Kimberly F. court recognized that the trial court does not need to strictly apply the factors listed in its analysis. (Id. at p. 532 ["While this list is not meant to be exhaustive, it does provide a reasoned and principled basis on which to evaluate a section 388 motion"].) Here, for example, the children's sibling relationships were an important factor in determining their best interests; in Kimberly F., that factor was not applicable. (Kimberly F., supra, 56 Cal.App.4th at pp. 532-535.)
On this record, we cannot find a rational basis to distinguish Tatiana and Alberto from their siblings. The Agency's argument that Doreen delayed participating in treatment services and used methamphetamine, and the children lived with grandmother for an extended period, apply to the four older siblings. While the children were more bonded to grandmother than were their older sisters, by itself a child's bond to a caregiver is not an adequate basis to deny the section 388 petition. (See In re Jasmon O., supra, 8 Cal.4th at p. 418 [the evidence must show that removal from the caregiver would inflict "serious, long-term emotional damage" on the child].)
The record does not explicitly describe the relative strength of the children's bonds to Doreen and grandmother. (Kimberly F., supra, 56 Cal.App.4th at pp. 531-532.) With the exception of inappropriate physical discipline and hair-pulling, grandmother nurtured the children and consistently met their needs. The children identified grandmother as their primary caregiver. We infer the children and grandmother shared a well-developed and loving bond. As we discuss below, the bond between the children and Doreen is well documented in the visitation reports. This is not a case in which the children's bonds with the caregiver have supplanted their bonds with the parent. Further, there is no evidence to show the children would suffer serious emotional detriment if removed from grandmother's care. (In re Jasmon O., supra, 8 Cal.4th at p. 418.)
The record supports a finding that it was in the children's best interests to maintain their strong relationships with their siblings and Doreen. In its reports for the section 366.26 hearing, the Agency stated that Tatiana and Alberto would "clearly" benefit from continuing their relationship with their siblings and mother. In relying in part on its finding the children's relationships with their siblings and Doreen would continue if grandmother adopted the children, the court implicitly recognized the importance to the children of these relationships.
Except for a brief interruption, the children were raised in the same household with their older sisters until October 2006. The siblings were loving and affectionate with each other. Tatiana and Alberto were sad when their sisters did not attend visits. The children identified D.B. as their sister, kissed and hugged her, and asked to hold her. Priscilla and Veronica sought to intervene in the children's cases to advocate for their return.
The court denied the girls' request for a hearing to assert their interests in their sibling relationships under section 388, subdivision (b). The court permitted the girls' attorney to appear at the hearing on Doreen's section 388 petition.
When the children arrived at visits they excitedly greeted Doreen and yelled, "Mommy," ran into her arms or went directly to her. They clung to her. In November 2006 Alberto asked, "Why the big girls get to go home?" Castro acknowledged Alberto was referring to Doreen's home. Alberto complained about the length of the visits and said, "I don't like it when it's time to go." In February 2007 Tatiana wrote "I love you, mom" on a white board. Alberto scribbled some letters. He told Doreen he wrote, "I love you, mom."
Doreen was physically affectionate with the children, attended to their needs, set limits and redirected their behaviors, displayed concern for the children's physical safety and demonstrated parenting skills. There are no reports Doreen physically abused the children or used inappropriate physical discipline.
The parties stipulated to grandmother's testimony she had invited Doreen and the other children to share "holidays, Easter, Thanksgiving and Christmas." Her stipulation did not address future contact. The record shows Doreen, the girls and D.B. attended a Christmas party at her home in 2006. The record suggests they also visited grandmother on Easter 2007.
Here, at best, visitation would be limited to major holidays. Grandmother's relationships with Doreen, Priscilla and Veronica were strained. There was no guarantee of future contact. We do not believe the court correctly assessed the impact of limited visitation on the children's interests in maintaining their relationships with Doreen and their sisters. Infrequent contact does not substitute for the kind of relationships that can be nurtured when siblings are raised in the same home.
Finally, we are not persuaded by the Agency's argument that Doreen was unable to adequately care for all five children. Nothing in the record suggests Doreen had problems managing the children and their siblings during visits. Dr. Kelin did not find any psychopathology or mental defects that would preclude Doreen from being an adequate parent. He opined that reunification with Tatiana and Alberto was possible. Niemann's opposition to returning Tatiana and Alberto to Doreen's care was situational; she did not believe it was a good idea to return the children during D.B.'s 60-day trial visit.
On August 14, 2007, the court found that Doreen made substantive progress with her case plan and returned D.B. to Doreen's care. The court noted its concern about Doreen's "recent relapse" and set additional SARMS review hearings to monitor her compliance with substance abuse treatment.
After the reunification period has ended, the court must give substantial weight to the child's constitutional and statutory interests in stability. (In re Jasmon O., supra, 8 Cal.4th at pp. 420-421.) " ' "[T]he overriding concern . . . is to provide a stable, permanent home in which the child can develop a lasting emotional attachment to his or her caregivers." ' " (Id. at p. 421, quoting In re Emily L. (1989) 212 Cal.App.3d 734, 741.) The purpose of a section 388 petition is to avoid the erroneous termination of parental rights of a "fit" or adequate parent. (In re Marilyn H., supra, 5 Cal.4th at p. 310; In re Dakota H., supra, 132 Cal.App.4th at p. 224, fn. 3.)
Here, the record shows Doreen stabilized her circumstances and was adequately parenting three children. Tatiana and Alberto displayed a lasting emotional attachment to Doreen and their sisters. There was no evidence to show removal from grandmother would cause the children serious emotional detriment. (In re Jasmon O., supra, 8 Cal.4th at p. 418.) The longer transition period required by D.B.'s recent placement in the home did not significantly impact the children's interests in permanency. (See In re Marilyn H., supra, 5 Cal.4th at p. 308.)
The record does not support the court's conclusion there was "no reason" to remove the children from grandmother. A one-dimensional "better household" test is not dispositive in determining the child's best interests. (Kimberly F., supra, 56 Cal.App.4th at p. 530.) Tatiana and Alberto would clearly benefit from being raised with their siblings in the same household by a loving and adequate parent. We conclude when the parent demonstrates changed circumstances and shows that the proposed modification is in the child's best interests, proceeding on a "conveyor belt leading to the termination of parental rights" constitutes a miscarriage of justice and requires reversal. (In re Daijah T. (2000) 83 Cal.App.4th 666, 676; Cal. Const., art. VI, § 13.)
III
The Challenges to the Court's Findings Under Section 366.26 Are Moot
Because we reverse the order denying Doreen's petition to return the children to her care under a plan of family maintenance services, we necessarily reverse the judgments terminating parental rights. (Cf. In re H.G. (2006) 146 Cal.App.4th 1, 19.) Our disposition renders moot Doreen's and Ruben's arguments the court erred when it determined that no exceptions under section 366.26, subdivision (c)(1) applied to preclude termination of parental rights.
DISPOSITION
The orders denying Doreen's petition to return Tatiana and Alberto to her care under a plan of family maintenance services are reversed. We necessarily reverse the judgments terminating parental rights. The juvenile court is directed to return Tatiana and Alberto to Doreen's care under a plan of family maintenance services. Nothing in this opinion should be construed to prejudice the right of the Agency or minors' counsel to bring further proceedings in this matter based on developments during the pendency of these appeals. (In re Kimberly F., supra, 56 Cal.App.4th at p. 535.)
WE CONCUR: AARON, J., IRION, J.