Opinion
B231321
12-05-2011
In re B.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. KRISTEN C. et al., Defendants and Appellants.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant Kristen C. Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant Christopher M. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Senior 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK71144)
APPEALS from orders of the Superior Court of Los Angeles County, Robert L. Stevenson, Juvenile Court Referee. Affirmed.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant Kristen C.
Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant Christopher M.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Kristen C. (Mother) and Christopher M. (Father), the parents of B.M. and R.M., children declared dependents of the juvenile court in 2008, appeal from an order denying Father's petition pursuant to Welfare and Institutions Code section 388 to modify prior orders by granting him unmonitored visitation and eventually returning the children to his care. They also appeal from the subsequent order terminating parental rights, based on the purportedly erroneous denial of the section 388 petition. We conclude that the trial court properly ruled that Father's petition failed to allege sufficient facts to show that the best interests of the children would be served by the proposed change of order. Accordingly, the juvenile court did not err in denying the section 388 petition and subsequently terminating parental rights.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Initiation of Dependency Proceedings
B.M. (born in Oct. 2002) and R.M. (born in Jan. 2004) are the subjects of a section 300 petition filed on May 13, 2008. Both girls had been living since birth with their maternal grandmother, Anne C. Mother had signed letters granting Anne C. temporary custody because she was unable to care for the children. In March 2008, Anne C. contacted the Los Angeles County Department of Children and Family Services (DCFS) and told a social worker that Mother had threatened to take the children away. Anne C. was worried because Mother was unstable and abused drugs, and Anne C. wanted the children to be under juvenile court supervision so she could set appropriate limits with Mother regarding the children's care and placement. Anne C. reported that Mother had been abusing drugs since she was 14 years old. Mother admitted she had a history of abusing drugs (methamphetamines and marijuana) and was homeless. The section 300 petition alleged that Mother had a history of substance abuse and was a current user of illegal drugs, that Mother had failed to provide the necessities of life for the children, and that Father had also failed to provide for the children.
In December 2007, Mother had given birth to a boy, and Mother had tested positive for methamphetamines and marijuana. A section 300 petition was filed regarding the boy, and he was declared a dependent of the juvenile court and placed in the care of his maternal uncle.
That child is not a party to this appeal.
At the detention hearing for B.M. and R.M., the court ordered that the children be detained and placed in the custody of Anne C. The court ordered DCFS to perform a due diligence search to locate Mother and Father.
When DCFS located Mother, she admitted to having a substance abuse problem and asked for assistance. DCFS also located Father, and he too admitted to a history of drug and alcohol abuse. Father reported that he and Mother had lived in Anne C.'s home for a time, but he and Mother had engaged in domestic violence. He left Anne C.'s home and began attending Narcotics Anonymous. Father said he had stopped using cocaine and methamphetamines, but he continued to smoke marijuana. He told the social worker he had not seen the children in two years because the maternal uncle did not allow him to have contact with the children. Father felt they were safe in Anne C.'s home and did not want them removed from her care, but he wanted overnight visits with them. Anne C. said Father had never contributed to the children's care, and Mother confirmed that fact.
In June 2008, Father was granted monitored visitation with the girls. Initially, the girls were hesitant about visiting Father because they had not seen him in a long time. Once visits began, the girls said they enjoyed seeing Father, but they only wanted to visit him if the social worker or Anne C. was present. The paternal grandparents were supportive of Father and of his gaining custody of the children, but they believed that he was not yet ready to have the children in his care.
In July 2008, the parents agreed to submit on an amended section 300 petition, from which the allegations against Father had been deleted. Father was granted family reunification services, which were ordered to include parenting education classes and participation in random drug tests. The court ordered that conjoint counseling with the children could be offered at the discretion of the children's therapist. Although Mother submitted on the amended allegations of the petition, she requested a contested disposition hearing. At the contested hearing in September 2008, the court ordered DCFS to provide family reunification services to Mother, including an inpatient drug treatment program with random testing, parenting education classes, and individual counseling.
II. The Six-Month Status Review (§ 366.21, Subd. (e))
By the time of the January 14, 2009 six-month review hearing, Father had drug tested only once (with negative results) and had not begun conjoint counseling. In November 2008, Father had pleaded guilty to a charge of possession of marijuana. He was required to demonstrate enrollment in a substance abuse treatment program by November 19, 2009, and entry of judgment against him was deferred until that time. Mother had not enrolled in a drug treatment program and had not drug tested. She was unemployed and did not have stable housing.
Anne C. reported that Father failed to come to some visits or arrived late, and then talked on his cell phone or texted once he arrived. The children expressed to the social worker that they did not understand why they were forced to see Father when he had no interest in spending time with them. Anne C. encouraged the girls to be affectionate toward their parents, but the girls continued to express anger toward their parents and a desire not to visit them.
The court granted the parents six additional months of reunification services.
III. The 12-Month Status Review (§ 366.21, Subd. (f))
The 12-month status review hearing was held in May 2009. DCFS recommended termination of reunification services. DCFS reported that Mother had entered a substance abuse treatment program in late January 2009. Her counselor reported that Mother was complying with the program and testing negative for drugs. The children visited her at the program every other week. Anne C. reported that both children had difficulty before each visit because they did not want to see Mother. Mother agreed that Anne C. should adopt the children.
Father had entered a substance abuse treatment program in February 2009. He was required to drug test in the program, and his results had been negative. His counselor told the social worker that Father did not accept that he had a serious problem, and opined that Father was not prepared to be a part of the girls' lives. The 9- to 12-month program did not allow visits or telephone calls. Father told the children he would not be able to see them for six months, and R.M. replied, "[T]hat is ok[,] we don't like you any way."
B.M. and R.M. attended weekly therapy sessions to address their disruptive behavior. The therapist reported that Anne C. "ha[d] continued to do an amazing job at raising the girls." Anne C. appropriately disciplined them by redirecting their behavior and giving them verbal warnings and time-outs. B.M. expressed significant angry feelings toward Father, and both girls expressed disappointment at their lack of contact with Mother.
The parents requested a contested 12-month review hearing, so the matter was continued until July 2009. By that time, DCFS had completed an adoptive home study of Anne C.'s home. The children continued to express unhappiness at having to visit with their parents so often. Mother remained enrolled in her drug treatment program. Father, however, had left his program after 90 days because he could no longer pay for it. He had enrolled in vocational training, and expressed the belief that he would be able to begin caring for his daughters in about two years.
The juvenile court found that it would be detrimental to return the children to the parents' custody, but ordered DCFS to provide six additional months of family reunification services. Mother was permitted to have unmonitored visits with the children once she completed her treatment program and entered a sober living program. The court ordered conjoint counseling for the children and both parents to begin forthwith. The court found the parents were in compliance with the case plan.
IV. The 18-Month Status Review (§ 366.22)
In August 2009, Father said he was on three waiting lists for conjoint therapy providers. The social worker gave him additional referrals. By November 2009, he still had not begun conjoint counseling with the children. The social worker reported that Father had not contacted her in order to arrange conjoint counseling. He scheduled but then missed appointments with her, simply saying that he had forgotten about them. He lived with his mother and did occasional work for his uncle. He completed a three-month outpatient drug program in September 2009 that satisfied the criminal court's requirements related to his conviction for drug possession.
Anne C. told the social worker that Father always came to visits with someone else because he seemed not to know how to spend time with the children alone. The social worker had provided him with information on how to have quality time with the children, so they could enjoy visits together. The children continued to resist going to visits with Father; they even prayed that Father would fail to show up and afterward would say their prayers had been answered if he did not. The social worker asked the girls why they did not want to visit Father, and they replied that they did not know why they had to go see him.
Mother had two-hour, unmonitored visits with the children. She reported that the visits went well, although the children sometimes felt bored. The social worker observed during a visit in August 2009 that R.M. consistently disobeyed Mother.
DCFS recommended termination of reunification services. The parents requested a contested hearing, and the matter was scheduled for early February 2010.
For the February 2010 hearing, DCFS reported that Mother's visits with the children were inconsistent. The children were neutral about having visits with Mother. They were clear, however, that they did not want to visit Father.
Father was arrested in January 2010 for failure to appear at a hearing in criminal court. Father testified at the hearing in the present case that he had not completed a parenting program, although he had been given referrals by the social worker. He had not begun conjoint therapy with the children because he needed to provide the therapist with a court order, and he had not yet obtained one. He attended Alcoholics Anonymous meetings a couple of times a week, but he did not have a sponsor. Father said he visited the children every Sunday for three hours; he denied spending most of his time during visits using his cell phone.
The social worker testified that she had discussed conjoint therapy with the children's therapist. The therapist said that the children hated Father, and she felt that it was not in their best interest to do conjoint counseling with Father. The social worker stated she had not assisted Mother to obtain conjoint counseling with the children. She said that Mother had made good progress in addressing her drug problem. However, Mother had difficulty controlling the children's behavior, and she did not have housing for herself and the children.
The juvenile court found that DCFS had not made adequate efforts to assist the parents in obtaining conjoint counseling with the children, and extended reunification services for an additional three months. The court scheduled a hearing pursuant to section 366.25 for May 13, 2010. Thereafter, a contested hearing was scheduled for July 1, 2010.
V. Motion for De Facto Parent Status
In April 2010, Anne C. filed a motion seeking a judicial determination of her status as a de facto parent of B.M. and R.M. The court granted the motion over Father's objection.
VI. The Subsequent Status Review Hearing (§ 366.25)
During the next several months, the parents did not begin conjoint counseling with the children. Father said he was waiting to hear from the children's therapist when such counseling should occur. Father had checked himself into a sober living program in early March 2010. He told the social worker that all of his drug tests were negative, but he did not provide proof to that effect. He said he started parenting classes in early June 2010, but provided no evidence that he had completed a parenting program. The children continued to resist having visits with Father.
The children enjoyed visits with Mother. Mother agreed that Anne C. could adopt the children, if it were an open adoption. Mother had completed her drug treatment program and continued to live in a sober living home, which did not allow her to have custody of the children.
The children told the social worker that they wanted to live with Anne C. They did not want to live with either parent. The children's therapist reported that they had formed a secure attachment with Anne C. In April 2010, the children's therapist advised DCFS that she felt it was not in the children's best interests to engage in conjoint counseling with her; rather, she "believe[d] that the girls would benefit from experiencing counseling with their birth parents with a therapist that is neutral to the case." DCFS recommended that the court terminate the parents' reunification services and set a section 366.26 permanency planning hearing.
At the review hearing in July 2010, the children's attorney stated she agreed that reunification services should be terminated. The court found that the parents had not complied with the court-ordered requirement of conjoint counseling, and that returning the children to either parent's custody would be detrimental. Accordingly, the court terminated reunification services. The court encouraged the parents to pursue conjoint counseling, and noted that if Father completed his programs he could bring a section 388 petition seeking a change in the court's order. The court scheduled a section 366.26 hearing for late October 2010. The parents requested a contested hearing and the matter was continued until January 4, 2011.
VII. The Permanency Planning Hearing and the Section 388 Petition
Anne C. was committed to adopting the children and was willing to permit Mother and Father to maintain relationships with the children. The children told the social worker that they wanted to live with Anne C. Both children told the social worker they liked visiting Mother, but they did not want to live with her; they did not want to visit Father.
DCFS reported that R.M.'s behavior had regressed significantly since October 2010. Her therapist indicated R.M. was frequently very angry. During one session, the therapist had to physically restrain her. R.M.'s teacher reported that R.M. pushed another child to the ground and kept pounding her on the head even after the teacher intervened. B.M. was also displaying problems with anger.
Conjoint family therapy sessions began in late August 2010. In early November 2010, Anne C. reported to the social worker an incident that occurred when she had taken the children to conjoint therapy a few days before. She had waited outside the counseling center and, after 40 minutes, she heard the children screaming and saw them running out of the building, with Father following. (Mother was at work and had not participated in the session.) Father told Anne C. the session ended because R.M. was disrespectful. B.M. was crying, and R.M. was screaming and saying that she hated Father. R.M. then curled up in the back seat of Anne C.'s car and began sucking on her fingers. When Anne C. asked the children what had happened, they said they did not remember. A few days later the children told their maternal uncle that the therapist kept asking them the same question repeatedly, but they did not say what she had asked.
The conjoint therapist told the social worker that the children felt conflicted. She said that apparently Anne C. was telling them not to talk to or share any information with outsiders, including the therapist. The therapist said the children wanted to live with Anne C. because she bought them things the parents could not. She said that Father had been trying very hard to improve his relationship with the children. The children admitted they liked Mother but were afraid to admit they also loved Father because their maternal uncle would be upset if he knew how they felt. The therapist stated there was a breakthrough in the sessions, but she did not provide any specifics. The therapist said that Anne C. had decided not to continue bringing the children to conjoint therapy because of the incident that occurred when the children ran out of the session. The social worker had not received a written report from the therapist. The social worker had given the therapist a copy of the parents' consent to disclose confidential information, but it is not clear from the record when that occurred. Anne C. continued to take the children to visits with the parents.
On December 30, 2010, Father filed a section 388 petition. He alleged he had completed 22 hours of parenting education and 25 sessions of conjoint counseling with the children. He said the conjoint counselor indicated he and the children had made significant progress in treatment by improving communication, recognizing the family unit, and verbalizing conflicted feelings regarding family issues. Father requested four weeks of unmonitored visits, followed by four weeks of overnight weekend visits, and then return of the children to his custody. He argued the change in order would benefit the children by strengthening their relationship with him, by reuniting the family, and by enabling the children to resolve the conflicted feelings they had about Anne C. and their parents.
DCFS filed a last minute report indicating that the parents had not been taking advantage of the visitation time they had been allowed. They generally saw the children only during their conjoint counseling sessions, and sometimes they would all go to a restaurant afterward. Generally the parents would sit and talk to one another while the children played in the restaurant's play area.
On January 4, 2011, the juvenile court first addressed the matter of the section 388 petition. Counsel for DCFS, the children's attorney, and Anne C.'s attorney argued that Father had not shown that it was in the children's best interests to change its prior order. Father's attorney argued there had been a change in circumstances, and that it could be detrimental to the children if parental rights were terminated.
The court indicated that, although there had been some recognition of the family unit and acceptance of Father by the children, the section 388 petition had been filed only two court days before the section 366.26 hearing. None of the parties was prepared to go forward on the section 388 petition that day, and the court found that it was not in the children's best interest to delay the matter further. The court denied Father's section 388 petition because it was not timely, and because there was no showing on the face of the petition that it would be in the children's best interests to change the order.
The court then proceeded to hold the section 366.26 hearing. B.M., then eight years old, testified in chambers. She said she did not really want to see Father, but she did not know why. She said Anne C. had told her if she did not want to talk to or play with Father, she did not have to. She said visits with Father made her feel tired. Asked if she loved Father, she said, "No." She said she could not remember what she and Anne C. had discussed about her feelings toward Father. She did not want to live with Father; she liked living with Anne C. "a lot" because she signed B.M. and R.M. up for swimming lessons and other activities, and she had play dates with friends. She did not want to live with Father because she wanted to see her friends, she did not want to have to take a bus, and she did not want to change schools. She said she was not comfortable spending time alone with Father. She considered her grandmother, Anne C., to be her parent. No one had ever told her not to visit with Father. She liked having visits with Mother, and "[s]ort of wanted to have more visits with her. She loved her grandmother and could not remember a time when she did not live with her.
The children's counsel joined with counsel for DCFS in arguing that parental rights should be terminated. She pointed to B.M.'s testimony that she considered Anne C. to be her parent and that she did not wish to visit with Father. The parents did not take full advantage of the visitation time they were permitted, and Father's visits remained monitored during the entire pendency of the case. She argued that the parents had not played a significant parental role for the children at any time in their lives. Mother's counsel argued that the conjoint counseling had resulted in the children having a much closer relationship with her, such that it would be detrimental to the children if parental rights were terminated. Father's counsel also pointed to the conjoint counseling, noting that the conjoint counselor stated that "there has been some progress made with regard to the relationship in this family."
The juvenile court found the children to be adoptable, and that it would be detrimental to return them to the custody of their parents. The court found that neither parent had established that it would be detrimental to the children to terminate parental rights. The court noted B.M.'s testimony that she did not feel love for Father, and viewed Anne C. as her parent. The court concluded that, on balance, it was more important for the children to have the benefit of the long-term permanence that adoption by Anne C. would bring than it was for them to continue to have the relationship they had with their parents. Accordingly, the juvenile court terminated parental rights, and ordered DCFS to proceed with adoptive planning and placement.
This appeal by both parents followed.
DISCUSSION
I. Father's Notice of Appeal Will Be Deemed Adequate
Pursuant to the California Rules of Court, a notice of appeal must specifically identify the order and/or judgment from which the appellant seeks appellate review. (Cal. Rules of Court, rule 8.100(a).) The notice of appeal, which "must be liberally construed," "is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2).) While Father's notice of appeal did not refer to the order denying his section 388 petition, we conclude that it was minimally sufficient to permit this court to review that order, which was entered on the same day as the order terminating parental rights. A court may "liberally construe a parent's notice of appeal from an order terminating parental rights to encompass" other issues, so long as review of those issues is not foreclosed as untimely. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1451 [considering the nearly-concurrent denial of the parent's § 388 petition, even though the notice of appeal identified only the order terminating parental rights].) We will construe Father's notice of appeal from the order terminating parental rights as encompassing the denial of his section 388 petition.
II. Modification of Prior Orders Was Not in the Children's Best Interests
The juvenile court denied Father's section 388 petition, filed two court days before the scheduled section 366.26 hearing, without granting Father a contested hearing on the section 388 petition. In considering whether Father was entitled to a hearing on his section 388 petition, we note that "'[t]he parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]' (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) '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.]' (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) '[A] petition must be liberally construed in favor of its sufficiency [citation] and a hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order. Only in this limited context may the court deny the petition ex parte. [Citation.]' (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.) Conversely, the hearing on the section 388 petition 'is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order, which necessarily contemplates that a court need not order a hearing if this element is absent from the showing made by the petition. [Citation.]' (In re Zachary G. (1999) 77 Cal.App.4th 799, 807, fn. omitted.)" (In re Josiah S. (2002) 102 Cal.App.4th 403, 418-419.)
The stage of the dependency proceedings at which the parent has filed a section 388 petition is relevant to the court's evaluation of whether a hearing is required. A section 388 petition may be filed and heard at any time, up to and including the time of the section 366.26 hearing. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) However, once reunification services are terminated, a presumption arises that "continued care [under the dependency system] is in the best interest of the child." (Id. at p. 310.) At that point, the burden is on the parent to "rebut that presumption by showing that circumstances have changed that would warrant further consideration of reunification." (Ibid.) Whether to grant the 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.)
In order to revive the reunification issue and obtain additional reunification services through a section 388 petition, "[t]he parent must show that . . . undoing . . . the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The specific factors a court may consider in deciding whether to grant a petition for modification vary with each case; at a minimum, however, "each child's best interests would necessarily involve eliminating the specific factors that required placement outside the parent's home." (In re Angel B. (2002) 97 Cal.App.4th 454, 463-464.) Among the factors the court may consider are "the seriousness of the reason for the dependency in the first place" (Kimberly F., supra, 56 Cal.App.4th at p. 530); "the strength of the existing bond between the parent and child" compared to "the strength of [the] child's bond to his or her present caretakers, and the length of time a child has been in the dependency system in [relation] to the parental bond" (id. at p. 531); and "the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before . . . ." (Ibid.)
In his section 388 petition, Father presented as changed circumstances the fact he had completed 22 parenting education classes and 25 conjoint counseling sessions with the children. These were indeed important elements of his case plan which he was required to complete. However, the other relevant factors did not weigh in Father's favor. The children became dependents of the juvenile court because neither Mother nor Father was capable of parenting the children. They both had severe substance abuse problems, and had essentially abandoned the children to the care of Anne C. from the time of each girl's birth. Even giving full credit to the evidence presented by Father regarding the progress the family had made in conjoint counseling, that evidence did not show that a significant bond existed between the children and their parents, particularly Father. The children were consistent and clear, even after conjoint counseling began and a purported "breakthrough" was achieved, that they did not enjoy visits with Father, and they certainly did not want to live with him. They had been in their grandmother's care since birth. DCFS had filed the section 300 petition in May 2008, and reunification services were ordered in July 2008. The parents received reunification services for two years, followed by an additional six months during which conjoint counseling finally began and visits continued, before the contested section 366.26 hearing eventually took place in January 2011. Father had been given ample time to strengthen his bond with the children, but simply had not done so to an extent that warranted holding a hearing on whether to allow Father to have unmonitored visitation, let alone custody. For most of the case, Father appeared more interested in using his cell phone than in engaging with his children during visits. The children were adamant that they did not want to live with him. It was difficult convincing them even to visit. Indeed, there was evidence that the conjoint counseling had been traumatic for them. R.M.'s behavior deteriorated significantly after conjoint counseling had begun. The children essentially had no relationship with or trust in Father, so there was no possibility that the children's best interests would be served by forcing them to have unmonitored visits with Father.
Father's section 388 petition was technically timely, but it was too little, too late for purposes of seeking additional reunification services. The juvenile court rightly considered the negative impact on the children of further delay, and determined a hearing on Father's section 388 petition was unwarranted. We find no abuse of discretion in the court's ruling.
Tellingly, Father does not contend on appeal that his relationship with B.M. and R.M. was such that terminating his parental rights would be detrimental. (§ 366.26, subd. (c)(1)(B)(i).) He argues only that the court erred by denying his section 388 petition. Having concluded that the court did not abuse its discretion in that regard, we further conclude that the court did not err in terminating parental rights.
Mother filed a separate opening brief on appeal, in which she merely claimed that if the order terminating Father's parental rights is reversed, her parental rights also must be reinstated.
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DISPOSITION
The order denying Father's section 388 petition, as well as the order terminating parental rights, are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
EPSTEIN, P. J.
MANELLA, J.