Opinion
B231870
01-05-2012
In re STEPHEN H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. BEVERLY J., Defendant and Appellant.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK51603)
APPEAL from an order of the Superior Court of Los Angeles County, Marilyn H. Mackel, Commissioner. Affirmed.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
Mother Beverly J. appeals from the juvenile court's order denying her petition under Welfare and Institutions Code section 388 and terminating her parental rights over her son Stephen H. (born in Sept. 2008) pursuant to section 366.26. Mother contends that the court erred in denying her section 388 petition without holding a hearing. She also contends that the court erred in finding that the beneficial relationship exception to the termination of parental rights did not apply and in excluding evidence of the sibling relationship exception. (§ 366.26, subd. (c)(1)(B).) We affirm.
All undesignated section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has a history of alcohol and substance abuse, which has affected her ability to care for Stephen. Mother's two older children were placed under the legal guardianship of Mother's brother and sister-in-law after one of them was injured in a car accident while Mother was driving under the influence of alcohol.
Stephen came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in November 2008, in a referral alleging general neglect by Mother. The caseworker determined that Mother was trying to turn her life around and that the allegation was unfounded.
In July 2009, DCFS filed a petition asserting jurisdiction over Stephen under section 300, subdivisions (a), (b), (g), and (j). The petition was based on allegations of domestic violence against Mother by her boyfriend, Keiry D., Mother's substance abuse and diagnosed mood disorder, and lack of support by Stephen's father because of his incarceration. The serious physical harm count (§ 300, subd. (a)) was later dismissed. Stephen's paternal grandmother (Grandmother) was a secondary caregiver for Stephen and wanted legal guardianship over him to ensure his safety until Mother got her life together, but Mother was opposed to the idea. Mother filed an application for a restraining order against Keiry.
The child's presumed father is not a party to this appeal.
At the July 10, 2009 detention hearing, the court found a prima facie case was established for detaining Stephen and placed him in DCFS custody, but gave DCFS discretion to release him to an appropriate relative. The court warned Mother that the court was considering a permanent plan and possibly adoption, given the child's age. Mother was granted monitored visits two to three times a week. The court issued a restraining order protecting Mother against Keiry.
An August 20, 2009 jurisdiction/disposition report stated that Stephen was placed with Grandmother. Grandmother reported that Mother visited him several times a week and that the visits were good. According to the report, Mother was not participating in any substance abuse or mental health services. Father was incarcerated in Colorado, and he had not been interviewed or advised of the option to participate in adoption planning.
At the August 20, 2009 jurisdiction and disposition hearing, the court sustained the allegations under section 300, subdivisions (b) and (j). The court dismissed the allegation under section 300, subdivision (a), and held in abeyance the fourth allegation under subdivision (b) and the allegation under subdivision (g) because of Father's incarceration. The court ordered Mother to enroll in a residential drug and alcohol treatment program and warned her that if she was not in full compliance with the case plan in six months, the court would terminate services. The court ordered Stephen suitably placed in DCFS custody in Grandmother's home and granted Mother monitored visits two to three times a week. In September 2009, Mother entered a residential treatment center to deal with chemical dependency and other issues.
On August 28, 2009, an investigator interviewed Father over the telephone. Father reported that he was convicted of narcotics possession in 1998, and that he was due to be released from prison in July 2010 and discharged from parole in February 2012. He stated that he would care for Stephen when he was released and that Stephen was well cared for by Grandmother. Father sent the investigator a letter, stating that he had provided for Stephen's needs prior to his incarceration and that he wanted to care for Stephen upon his release and wanted Stephen to remain with Grandmother, not with Mother. On November 24, 2009, the court found him to be the presumed father. In December 2009, Father sent another letter, stating that, although he was still incarcerated, he was working as a firefighter and would send half his pay to Grandmother to help care for Stephen.
DCFS filed a report on February 8, 2010, for the six-month status review hearing. Stephen remained placed with Grandmother, and Father was still incarcerated in Colorado. Mother remained at her residential treatment facility, where she had participated in drug and alcohol counseling, parenting classes, and individual counseling. She had received negative results in random testing for drugs and alcohol. Mother was expected to complete her treatment in February 2010, but her counselor was unable to provide progress reports until Mother's outstanding balance was paid.
DCFS found Stephen's placement with Grandmother to be appropriate, with Grandmother meeting his needs and closely bonded with him. Grandmother took Stephen to visit Mother at the residential facility three times a week. Grandmother expressed her willingness to have Stephen remain with her.
At the February 8, 2010 status hearing, the court continued the matter in order for DCFS to investigate Mother's payment of her bill for the residential treatment program and her alleged relationship with her former boyfriend, Keiry.
In an April 2010 interim review report, DCFS expressed concern about whether Mother was still in a relationship with Keiry, but continued to recommend family reunification services for her. A May 2010 interim review report described positive visits between Mother and Stephen, but it further stated that Mother told her caseworker that she got drunk on April 29, 2010, after a domestic violence incident with Keiry. DCFS recommended terminating family reunification services. At a May 2010 hearing, Mother's counsel argued that Mother was remorseful about the relapse and was enrolled in a domestic violence program, and that the report indicated a bond between Mother and Stephen. The court ordered reunification services to continue until an August hearing.
In an August 2010 status review report, DCFS stated that Mother did not provide proof of enrollment in drug and alcohol counseling and had missed random drug tests. Mother reported that she occasionally drank and was still in a relationship with Keiry. DCFS recommended terminating reunification services for both Mother and Father and setting a section 366.26 permanency review hearing. On August 4, 2010, the matter was continued for a contested hearing on October 8, 2010.
On October 8, 2010, DCFS filed a last minute report for the court, stating that Mother was attending domestic violence sessions, but her attendance was inconsistent because it was difficult for her to pay the fee. The caseworker further stated that Mother had missed several monitored visits because of work. The hearing was continued to October 12, 2010.
At the October 12 hearing, Mother presented a letter from a domestic violence program stating that she was attending courses and making considerable progress, police reports of calls she had made regarding Keiry, and attendance sheets from Alcoholics Anonymous meetings. After hearing testimony and argument, the court found that Mother was not credible and had not made substantial changes such that the child would no longer be at risk. Although Mother had complied with the case plan, the court found that her compliance was not substantive and therefore terminated reunification services. The court set the matter for a permanent plan hearing on February 8, 2011.
DCFS filed a report recommending adoption by Grandmother. The matter was continued, and a contested permanent plan hearing was scheduled for March 21, 2011.
On March 16, 2011, Mother filed a section 388 petition asking the court to reinstate family reunification services for her, take the section 366.26 hearing off calendar, and liberalize her visits to be unmonitored. Mother asserted that she had completed a 20-week domestic violence course and was regularly attending Alcoholics Anonymous meetings, was abstaining from relationships, and had a strong bond with Stephen. She attached documentation of her participation and achievement in her domestic violence and alcohol rehabilitation courses, and a letter from her Alcoholics Anonymous sponsor.
At the March 21 hearing, the court summarily denied the 388 petition, on the grounds that the circumstances were not so changed that the permanent plan should be withheld and that the 388 petition was untimely. The court also denied Mother's request for a bonding study. Counsel for Father told the court that Father agreed with the recommendation to terminate parental rights and have Stephen adopted by Grandmother. The court found by clear and convincing evidence that Stephen was adoptable and terminated parental rights. Mother filed a timely notice of appeal.
DISCUSSION
Mother contends that the juvenile court abused its discretion by summarily denying her section 388 petition. She further contends that the court erred in finding that the beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), did not apply to determine whether termination of parental rights would be detrimental to Stephen. Finally, Mother contends that the juvenile court erred in excluding evidence regarding the sibling relationship exception of section 366.26, subdivision (c)(1)(B)(v).
I. Denial of the Section 388 Petition
"Section 388 permits '[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court' to petition 'for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court' on grounds of 'change of circumstance or new evidence.' (§ 388, subd. (a).)" (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) The petitioner must "establish[] by a preponderance of the evidence that (1) new or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. [Citation.] The parent bears the burden to show both a '"legitimate change of circumstances"' and that undoing the prior order would be in the best interest of the child. [Citation.]" (In re S.J. (2008) 167 Cal.App.4th 953, 959.)
"'"Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him [or her] adequate notice and an opportunity to be heard. [Citations.]"' [Citation.] [¶] . . . When a parent makes a prima facie showing of changed circumstances under section 388, he or she has a due process right to a full and fair hearing on the merits. [Citation.] . . . However, a parent's right to due process is 'limited by the need to balance the "interest in regaining custody of the minors against the state's desire to conclude dependency matters expeditiously . . . ."' [Citation.] Accordingly, in dependency proceedings, '[t]he court must control all proceedings with a view to quickly and effectively ascertain[] the jurisdictional facts and all information relevant to the present condition and welfare of the child.' [Citation.]" (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1463-1464.)
"Section 388 petitions 'are to be liberally construed in favor of granting a hearing to consider the [petitioner]'s request. [Citations.] The [petitioner] need only make a prima facie showing to trigger the right to proceed by way of a full hearing.' [Citation.] 'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.' [Citation.] 'Whether [the petitioner] made a prima facie showing entitling [the petitioner] to a hearing depends on the facts alleged in [the] petition, as well as the facts established as without dispute by the [dependency] court's own file . . . .' [Citation.]" (In re B.C. (2011) 192 Cal.App.4th 129, 141.)
"'[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] . . . .' [Citation.] [¶] The appellate court '"will not disturb [a] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."' [Citation.]" (In re Mary G. (2007) 151 Cal.App.4th 184, 205.)
The juvenile court denied Mother's section 388 petition on the basis that, although Mother's circumstances were changing, "they are not changed circumstances such that the court should withhold the permanent plan for this child who has been a dependent of this court for almost two years now."
The court also stated that the petition was denied ex parte because the petition was late. However, a section 388 petition may be filed and heard at any time, up to and including the time of the section 366.26 hearing. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Lesly G., supra, 162 Cal.App.4th at pp. 907-909 [reversing for failure to hold a hearing on a section 388 petition filed on the date of the section 366.26 hearing, which, as in the instant case, had been continued].)
Mother filed the following in support of her section 388 petition: a certificate of completion of a 20-week, 40-hour course in domestic violence education; her own letter dated February 8, 2011, stating that she had been clean and sober since June 1, 2010, had been attending Alcoholics Anonymous meetings and meeting regularly with her sponsor, completed a drug and alcohol program, and was not in a relationship with anyone; a letter dated February 23, 2011, from her Alcoholics Anonymous sponsor, stating that Mother had "a strong will to stay sober," was doing very well, and understood "that her sobriety is very important"; attendance sheets from Alcohol/Narcotics Anonymous, indicating that she attended meetings approximately three times a week from September 27, 2010, to February 22, 2011; an enrollment form for individual counseling, dated March 1, 2011.
Although Mother's efforts are commendable, the documentation she submitted in support of her section 388 petition does not establish a prima facie case that the circumstances have changed and that the proposed change would promote the child's best interests. (In re Mary G., supra, 151 Cal.App.4th at p. 205.) The documentation of her continued participation and completion of the domestic violence and alcohol courses were "facts [that] were part of the ongoing record in the case with which the juvenile court was thoroughly familiar, not evidence of changed circumstances or new evidence. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 463.) "'A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.]'" (In re Mary G., supra, 151 Cal.App.4th at p. 206.)
Even if Mother's documentation establishes changed circumstances, she also must make a prima facie showing of the second prong, that the proposed change would promote the child's best interests. Mother acknowledged that Stephen was more closely bonded with Grandmother than with herself, and the record consistently shows that Stephen was well cared for by Grandmother. We conclude that Mother did not make a prima facie showing that the proposed change would promote Stephen's best interests. The court did not abuse its discretion in denying her petition without a hearing.
II. Beneficial Relationship Exception to Termination of Parental Rights
Mother's second contention is that the juvenile court erred in finding that the beneficial relationship exception to termination of parental rights did not apply. We disagree.
"At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans. [Citations.] [¶] Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when '[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.'" (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.)
"There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) Both the substantial evidence test and the abuse of discretion standard have been applied, but "'[t]he practical differences between the two standards of review are not significant. "[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only '"if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did." . . .'" [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a "compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)[(B)].) That is a quintessentially discretionary determination. The juvenile court's opportunity to observe the witnesses and generally get "the feel of the case" warrants a high degree of appellate court deference. [Citation.]' [Citation.]" (In re Scott B. (2010) 188 Cal.App.4th 452, 469.) The result here is the same under either standard of review.
Mother testified that she was Stephen's sole caregiver until he was one year old. During the year he had been placed with Grandmother, Mother consistently visited him twice a week for two to four hours at a time. She bathed him, fed him, played with him, and occasionally took him to the park or a movie, and he often came to her house, where she maintained his bedroom with toys and a bed. He called her "Mommy" and cried when she left, but she acknowledged that he also called Grandmother "Mommy" and was more bonded with Grandmother because he lived with her.
"A parent must show more than frequent and loving contact or pleasant visits. [Citation.]" (In re C.F. (2011) 193 Cal.App.4th 549, 555.) Although Mother was Stephen's primary caretaker for one year, the record establishes that Grandmother has been his primary caretaker since that time.
The second prong of the beneficial parent-child relationship exception, the "benefit from continuing the relationship," has been interpreted as referring to "a 'parent-child' relationship that '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. . . .' [Citation.]" (In re C.F., supra, 193 Cal.App.4th at p. 555.) Here, there is no evidence that a continued relationship with Mother would promote the well-being of the child sufficiently to outweigh the well-being he would gain in a permanent home with Grandmother. Mother therefore has failed to meet her burden of showing that termination of parental rights would be detrimental to the child under section 366.26, subdivision (c)(1)(B)(i).
III. Sibling Relationship Exception to Termination of Parental Rights
Mother's final contention is that the juvenile court erred in excluding evidence of the sibling relationship exception to the termination of parental rights. Assuming, without deciding, that the court erred in excluding the evidence, we conclude that any error was harmless beyond a reasonable doubt.
Section 366.26, subdivision (c)(1)(B)(v), provides that the court may determine that termination of parental rights would be detrimental to the child if "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." Courts have stated that "the application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount. [Citation.]" (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)
At the section 366.26 hearing, Mother's counsel asked if Stephen had any siblings, but when she asked if Stephen saw his siblings, the court sustained an objection and did not allow Mother to answer. There is no question that the court did not allow Mother the opportunity to present evidence regarding Stephen's relationship with his siblings. This case therefore is unlike Valerie A., where the appellant's due process rights to a fair trial were not compromised because she "was provided the opportunity to present witnesses, cross-examine the social worker and question her objectivity, rebut the social worker's observations of the siblings' interactions and challenge her conclusions concerning the nature and extent of the sibling relationships. [Citations.]" (In re Valerie A., supra, 152 Cal.App.4th at p. 1013.) Nonetheless, assuming that her due process rights were violated, we conclude that any error was harmless beyond a reasonable doubt because the record indicates that the sibling relationship would not apply here. (See In re J.F. (2011) 196 Cal.App.4th 321, 336 [concluding that a due process error in a dependency proceeding was "not harmless under either the state standard for prejudice (People v. Watson (1956) 46 Cal.2d 818, 836) or the federal constitutional standard for harmless error (Chapman v. California (1967) 386 U.S. 18, 28"]; In re Mark A. (2007) 156 Cal.App.4th 1124, 1146 [applying harmless beyond a reasonable doubt standard to a due process violation in a dependency proceeding, and noting that "the weight of authority in California applies the Chapman harmless error standard in juvenile dependency proceedings where the error is of constitutional dimension"].)
Other than this one attempt at the hearing to testify about whether Stephen saw his siblings, there is no other evidence in the record to indicate that Stephen had a relationship with his siblings. Stephen's siblings were ordered into permanent placement services in 2006, two years before Stephen was born in 2008, and there is no evidence in the record that he ever lived with them or has had any interaction with them. Prior to this hearing, the issue had never been raised. Thus, none of the considerations set forth in section 366.26, subdivision (c)(1)(B)(v), such as being raised in the same home, sharing common experiences, or having close and strong bonds, support a finding that ongoing contact is in the child's best interest, as compared to the benefit of a caring and stable permanent home.
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J. We concur:
MANELLA, J.
SUZUKAWA, J.