Opinion
A159589
05-18-2021
In re W.D., a Person Coming Under the Juvenile Court Laws MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.D., ET AL., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKJVSQ171767301)
K.D. (Mother) and J.D. (Father) each appeal from orders by the juvenile court in dependency proceedings regarding their son, W.D. (minor). (Welf. & Inst. Code, § 300). At the minor's 18-month review hearing, the court had terminated the parents' reunification services and set a section 366.26 hearing. Thereafter the court issued the following orders that the parents contend are erroneous: (1) denying Mother's motion for a study of the minor's bond with his parents and siblings and for a continuance of the section 366.26 hearing; (2) denying the siblings' requests to join in Mother's section 388 petition; (3) refusing to admit into evidence a report prepared by a third-party social worker Mother retained to observe the minor and parents without notice to other parties, and striking the worker's testimony; (4) denying Mother's section 388 petition to return the minor to parental custody; and (5) terminating parental rights upon the finding that the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) was not established. We will affirm the orders.
Except where indicated, all statutory references are to the Welfare and Institutions Code.
I. FACTS AND PROCEDURAL HISTORY
A. Facts Leading to the Detention of the Minor and His Siblings
1. The Parents' Prior Child Welfare History
Before the proceedings in this matter, the family had seven prior child welfare referrals. Most relevant here, the Mendocino County Health and Human Agency, Family and Children's Services (Agency) received a referral in July 2016 alleging Father's severe physical abuse and general neglect of the minor's sibling, then four years old, after she sustained a spiral fracture to her left tibia. Father admitted pulling her leg when she did not release a toy, and the doctor opined her fracture could have been caused by an adult grabbing her lower leg and lifting her. The Agency substantiated an allegation of general neglect.
2. The Minor's Birth and Early Medical Issues
The minor was born in March 2017 and lived with Mother, Father, and three minor siblings. A newborn checkup on March 21, 2017, disclosed that his weight had decreased since birth to 5 pounds, 5 ounces. The doctor instructed Mother to return with the minor in three days for a weight check; seven days later, she returned and the minor had lost more weight. The doctor directed Mother to return in one week; three weeks later, she returned and the minor's weight had further decreased to roughly 20 percent of his birth weight. The minor was eventually transported by ambulance to the University of California at San Francisco Children's Hospital (UCSF). His "degree of malnourishment was imminently life threatening."
In April 2017, the Agency received a referral regarding the minor's weight loss and malnourishment, the parents' missed medical appointments, and the medical professionals' difficulties in convincing the parents to take the minor to UCSF. The minor was diagnosed with Down's syndrome and failure to thrive. When Mother visited him in the hospital, Father called repeatedly and threatened to report their car stolen if she did not return to him.
B. Detention
The Agency filed a petition requesting detention of the minor and his siblings on May 3, 2017, and the court ordered them detained.
C. Jurisdiction
The Agency's jurisdiction report noted relatives' concern that Father physically abused Mother and was violent with other family members. Attached was a police report detailing Father's altercation with a family member shortly before the minor's birth.
On June 20, 2017, the court sustained an amended dependency petition upon the parties' stipulation, finding that the parents failed to provide adequate medical care to the minor, Father put the children at risk due to his anger and emotional outbursts, and Mother failed to protect them from his anger.
D. Disposition
The Agency's disposition report advised that the parents had initially wanted to relinquish the minor to family members but now wanted all of their children returned. Due to his Down's syndrome diagnosis, the minor needed to be assessed by Redwood Coast Regional Center (RCRC), but Mother failed to submit the application. The parents acknowledged having domestic disputes in front of their children.
An addendum filed by the Agency on July 18, 2017, attached a letter from Father's domestic violence program administrator, who reported that Father denied having issues that needed to be addressed and minimized his role in the events related to the case. A second addendum advised that the program administrator had received a series of "assault[ive]" text messages from Father and noted that Father did "not want to be called on his behavior."
After court on July 20, 2017, the parents visited with the minor at the Ukiah Family Center. Father allegedly assaulted Mother, drove away, and was involved in a car accident.
At the continued disposition hearing on September 7, 2017, the parents denied any domestic violence history and wanted the children returned to them. Minors' counsel strongly disagreed, noting Mother's conflicting excuses for her black eyes and the parents' history of "significant anger management problems that have been affecting the children," who would be at risk if returned.
The court ordered removal of the minor and his siblings, along with family reunification services. As part of their case plan, the parents were to attend all medical, emotional, dental, and educational appointments for their children.
E. Six Month Review
The Agency's report, filed on February 21, 2018, recommended continued reunification services. Mother was often late to classes. Her facilitators believed she had not adequately addressed domestic violence issues and were unsure if she was in a safe relationship. Father struggled with managing his outbursts. While the parents showed affection for the children, they had cancelled or been late to multiple visits. Father rarely interacted with the minor.
At the review hearing on March 1, 2018, the court continued reunification services.
F. Twelve Month Review
In its 12-month review report, the Agency recommended the return of two of the minor's siblings with family maintenance services, and further reunification services as to the minor and another sibling until the parents showed success with the returned siblings.
The Agency reported that the parents had made progress in couples' therapy, Mother had nearly finished her Project Sanctuary class, and the parents had completed "Triple P" (parenting) classes and attended monthly meetings for the minor's individualized program plan. Other than one missed visit due to snow, the parents had engaged in visits. On the other hand, the minor was admitted to the hospital on April 28, 2018, and the parents did not visit him for days despite texts from the foster mother. When they arrived for a visit arranged by the social worker, Mother held and comforted the minor but Father refused.
After multiple hearings, as well as an assertion that the minor was displaying new slapping and scratching behaviors since overnight visits began, the court ordered the two siblings into family maintenance and further reunification services as to the minor and the other sibling. The minors' counsel argued that the parents needed to show an ability to meet the minor's medical needs, and the court ordered both parents to attend all of the minor's medical, dental, emotional, and educational appointments.
G. Eighteen Month Review
1. The Agency's Report
On September 11, 2018, the Agency's report for the 18-month review recommended continued reunification services for the minor and his non-returned sibling.
The Agency indicated that Mother was unable to care for the minor along with his other siblings, and Father had no desire to. The parents missed the minor's doctor appointment on August 22, 2018, despite being informed of it nearly a month in advance. On September 7, 2018, the minor had a scheduled surgery at UCSF; due to Mother's history of tardiness and missing appointments, the Agency arranged for the foster mother to transport him. Mother arrived over two hours late. Her habitual lateness and missing medical appointments were a major concern because the minor was originally detained due to medical neglect.
Mother also regressed in her parenting and was often seen yelling at the minor's siblings, who responded by throwing themselves on the ground or running away. When a sibling refused to share her snack, Mother told her "this is how your leg was broken last time." The house was a mess, and the Agency was concerned Mother was already overwhelmed and would not be able to care for the minor and the other sibling. According to the family's therapist, the parents needed six more months to stabilize their parenting skills before the minor and the other sibling could reunify.
The Agency expressed "cautious optimis[m]" the parents could reunify if they received a full six months of services. Wraparound (WRAP) services would start soon and teach the parents techniques to bring the minor safely home. Both parents also needed to attend all the minor's appointments and complete the Triple P "Stepping Stones" series designed to assist parents of special needs children.
2. Initial Eighteen Month Review Hearing
At a hearing on September 27, 2018, the Agency advised that, although extending reunification services to 24 months was not authorized under section 366.22, subdivision (b), there was good cause to continue the hearing for two months under section 352, subdivision (a) in light of the parents' efforts and the minor's "significant special needs." The minor's counsel again stressed that at least one parent should regularly attend his medical appointments to show they knew and could meet his extensive medical needs. The court continued the hearing to November 28, 2018, cautioning the parents this was the "end of the line" for services and any lingering issues needed to be resolved during this period.
The previously non-returned sibling was ordered returned to the parents with family maintenance services on November 20, 2018, leaving only the minor in foster care.
3. Parents' Failure to Make Progress
Near the end of this final two-month period, the Agency filed an addendum on November 26, 2018, advising that the parents had missed parenting classes and failed to schedule or confirm meetings with the minor's Early Start coordinator. Father had not scheduled Stepping Stones classes as of the time of an October 2018 Child and Family Team meeting and indicated he did not want the minor returned; the parents had not signed the Individualized Family Service Plan for continued development services for the minor, prompting the Agency to ask the court to transfer educational rights to the foster mother; Mother had missed an appointment the minor had at UCSF. The Agency recommended terminating reunification services due to the parents' inability to meet the minor's medical needs, which was the basis for his initial detention.
In a second addendum filed on December 6, 2018, the Agency reported that the parents had decided to relinquish the minor and place him with a relative for adoption. The Agency supported the plan but emphasized that it did not alter the Agency's position that services should be terminated in light of the parent's inability to meet the minor's needs. If relinquishment failed, the Agency recommended keeping the minor in his foster home.
4. Termination of Services and Setting of Section 366.26 Hearing
At the continued 18-month review on December 13, 2018, the parents agreed to relinquish the minor to Mother's cousin, Mollie. Based on the parties' agreement, the court terminated reunification services for Mother and Father and set the section 366.26 hearing for April 11, 2019. The court found that returning the minor to his parents would create a substantial risk of detriment and the parents had made only minimal progress toward alleviating the issues necessitating placement. The court also granted the Agency's request to designate the foster mother as the minor's educational rights holder.
H. Collapse of the Adoption and Voluntary Relinquishment
On January 22, 2019, the state adoption specialist advised Mother that Mollie no longer wanted to adopt the minor. Mother declined to proceed with voluntary relinquishment; Father never responded. Mother's counsel later confirmed that Mother, Father, and counsel knew by February 5, 2019, that Mollie was not going to adopt the minor.
I. Mother's Section 388 Petition
On March 28, 2019, Mother filed a section 388 petition, requesting the court to vacate its order terminating reunification services and return the minor with family maintenance services. The petition asserted that circumstances had changed since the order terminating services, because Mollie had decided not to adopt the minor, the parents had changed their mind and wanted to care for him, and his siblings were attached to him. It further asserted that Father agreed to quit his job to be the primary caregiver and the family could take the minor to his medical appointments and help with his educational and developmental needs.
Attached to the petition was a declaration by Mother, who claimed that Father was "deeply committed" to caring for the minor. Also attached was a handwritten note from Father, stating he had "come to want [the minor] in [his] life," could care for the minor because he spent his "entire life around disabled people" due to his family's business, and believed Mother could care for the minor "with proper education and support." The court set a hearing on the petition for April 11, 2019, the day of the section 366.26 hearing.
J. The Agency's Filings
The Agency prepared a report for the section 366.26 hearing, an opposition to Mother's section 388 petition, and a May 7, 2019 family maintenance report for the minor's siblings. The court received these reports at the combined hearing. We summarize their main points.
1. Mother and Father Were Unable to Meet the Minor's Needs
The minor required consistent care due to his Down's syndrome and multiple health issues, including chronic gingivitis and bilateral eye drainage. In September 2018, tubes were surgically placed in his ears to improve his hearing, but he still struggled to hear some sounds. He had bronchiolitis and a ruptured ear drum necessitating follow-up appointments, was referred for leg braces, and was receiving weekly speech therapy, physical therapy, and classes through Early Start.
The Agency described the parents' inability to meet his needs, including their failure to sign paperwork and show up for medical appointments (including four in March 2019). When Mother did attend appointments, she was often late. Father had not attended any of the minor's appointments since August 2018. The parents confirmed they were not tracking the minor's medical appointments in log books provided by the Agency.
2. Father's Detachment from the Minor
Father had stated repeatedly that he did not want the minor returned and in October 2018 said he did not want to raise "That Kid." In November 2018, he told Mother that if the minor were returned, he wanted to give him to Mollie. In January 2019, Father refused to assist with transporting the minor and yanked the minor's car seat out of the car with the minor still harnessed to it. In February and March 2019, he canceled visits with the minor.
3. The Parents' Volatile Relationship and Unsafe Home
The Agency had concerns about the children's emotional and physical wellbeing due to observed verbal altercations between the parents in front of the children. Although Father completed anger management, the Agency had not observed improvement in his behavior.
In November 2018, the social worker observed the children's bedrooms continued to lack sufficient walking space; Father earlier claimed Mother was a hoarder. The minor was in a messy diaper and T-shirt, playing in a dirty playpen covered with food crumbs and animal hair.
4. Parents' Regression in Services and Discontinuance of WRAP
The parents regressed considerably in their engagement with family maintenance. Mother did not consistently bring the children to their weekly therapy sessions. Father generally did not transport or attend therapy for any of the children.
WRAP services had ceased because of Father's behavior in February 2019. Father was berating Mother in front of the children and the WRAP team; when the WRAP facilitator asked him to stop and threatened to make a CPS referral, Father ordered the WRAP team out of the house, followed them to their car, and threatened the facilitator with violence. No other WRAP facilitator would work with the family.
5. The Minor's Adoptability and Best Interests
The Agency and adoptions specialist agreed that the minor was a specifically adoptable child, his foster parents were committed to adoption, and he enjoyed a close and loving relationship with them, having been in their care since May 2017. The foster parents had prior experience raising developmentally delayed children and had adopted other children. Removing the minor from their home would be detrimental to his well-being. Meanwhile, Father and Mother had failed to make significant progress in remediating the problems that caused his removal, and they were still not in a position to safely care for him.
K. Continuance of the Section 388/366.26 Hearing to May 9, 2019
On April 11, 2019, the minors' counsel withdrew from representation due to a conflict, and the court appointed Jackie Rosario to represent the minor's siblings and separate counsel for the minor. The parties agreed to a continuance, with the evidence as to both the section 388 petition and the section 366.26 issues to be presented in one combined hearing. The court set the hearing for May 9, 2019, with pretrial on May 2.
L. Mother's Request for Continuance and Bonding Study
On April 29, 2019, Mother served a motion to obtain a bonding study and continue the section 366.26 hearing for three to four more weeks to allow time for the study. Mother filed the motion at the May 2, 2019 pretrial conference, and it was set to be heard on May 7.
The Agency filed an opposition to the continuance and bonding study, urging that the request was untimely and the study was unnecessary given the record.
On May 7, 2019, Mother filed points and authorities in support of the bonding study and continuance motion. In addition, attached as an exhibit to points and authorities she filed that day in support of her section 388 petition, was a "report by Judy Beck MSW/CFCM which identifies a significant bond that [the minor] has with his family." Beck was an independent social worker with whom Mother (or counsel) had contracted; based on a two hour "assessment" at a park on May 5, 2019, the report described the family's interactions as positive and recommended that the minor be returned to a plan of family maintenance.
At the scheduled hearing on May 7, 2019, the parents did not appear because Mother had gone to the emergency room. Their attorneys asked to put over the hearing on their continuance and bond-study motion to May 9, 2019.
The minor's counsel joined the Agency's objection to the bonding study and postponement of the section 366.26 hearing, noting the request was untimely and a bonding assessment was unnecessary. The Agency and the minor's counsel also objected to Beck's report, contending Mother's counsel had no authority to hire a private social worker to conduct what was essentially a bonding study without obtaining a court order or notifying the Agency and minor's counsel.
The court denied Mother's request to continue the section 366.26 hearing.
M. Combined Section 388/366.26 Hearing (May 9 and May 22, 2019)
On May 9, 2019, the court made a number of rulings that Mother and Father now challenge, and then proceeded with the section 388/366.26 hearing.
1. Reiterated Denial of Continuance and Bonding Study
The court reiterated its denial of Mother's request for a continuance and bonding study and clarified its reasoning. As further discussed post, the court found that the request was untimely and the continuance was not in the minor's best interests.
2. Denial of Siblings' Request to Intervene
As set forth post, the minor's siblings requested to "intervene" in Mother's section 388 petition. The court denied the request.
3. Exclusion of Beck's Report and Striking of Her Testimony
As also described post, counsel for the Agency and the minor's counsel renewed their objections to Beck's report. The court excluded the report on the ground that the failure of Mother's counsel to provide notice of the assessment to minor's counsel had interfered with the ability of minor's counsel to act as the minor's lawyer and guardian ad litem.
When the section 388/366.26 hearing commenced, the court allowed Beck to testify on a limited basis. After Beck admitted that Mother's counsel had asked her to "meet with the parents and the children and do a bonding assessment," however, the court struck Beck's testimony, finding among other things that Mother's counsel, by arranging a visit to perform a bonding study, had interfered with the attorney-client relationship between the minor and his counsel and violated local rules requiring prior court approval for a bonding study.
4. Testimony of Service Providers and Social Workers
In further testimony, WRAP facilitator Patrick Spielman recounted the February 2019 incident in which Father verbally abused Mother in the children's presence and ultimately demanded that the WRAP team leave, threatened to eject them physically, and persisted with abusive language and texts. Spielman also testified that he did not recall the minor ever looking to Mother for affection or reaching out to her.
Social worker Brandy Maxwell was assigned to the family from December 26, 2017 through October 25, 2018. She saw the minor go to Mother willingly and reach for her. Mother attended the minor's medical appointments from May until August 2018, but her attendance thereafter declined. Although Mother utilized "Triple P skills" while parenting the children until early August 2018, she thereafter regressed and resorted to yelling at them. As to Father, Maxwell was unsure if the minor knew who he was. Father was reluctant to pick the minor up, and Maxwell did not recall Father kissing him, attending his medical appointments, or seeking services for him. In October 2018, Father sent texts to Maxwell stating he did not want the minor. In February 2019, Maxwell substantiated general neglect allegations after seeing the children's bedrooms so covered in debris that the children could be injured if the stacked moving boxes fell on them.
Social worker assistant (SWA) Adilene Jimenez worked with the family from June 2018 through December 2018. In October 2018, Mother held and kissed the minor and he kissed her back; the siblings did not approach him. Jimenez never saw the minor cry or reach for his siblings at the end of family visits. During a visit exchange, Father held the minor approximately 18 inches away from his body, never expressed affection toward him, and said he did not want him. At a January 2019 exchange, Father "ripped" the minor out of the car while he was still in his car seat.
SWA Shayla Dabney started working with the family in August 2018 and became the in-home SWA in December 2018. During two visit exchanges, Mother hugged the minor and he hugged back. Once, the minor's siblings hugged and kissed him. The minor did not appear to recognize Father and did not reach for or respond to him. In December 2018, the kitchen ceiling collapsed, and the minor was seen crawling in insulation that had fallen to the floor; the parents took about three weeks to cover the hole with a tarp. Dabney observed 10 marijuana plants on the porch within reach of the children in May and June 2019. On May 6, 2019, she saw crusted animal feces on the floor of the children's bedroom, along with a fresh pile of dog feces that Mother stepped in.
N. Continuance of Hearing Due to Mother's Medical Condition
The section 388/366.26 hearing was continued to June 26, 2019. On that day, Mother's counsel presented a letter from Mother's physician stating that Mother (who was pregnant) could not attend court until after September 20, 2019. The court continued the hearing to September 30, 2019.
O. Continued Section 388/366.26 Hearing (September 30, 2019)
1. Agency's Second Addendum
In an addendum filed on September 23, 2019, the Agency reported the parents were notified of 10 medical appointments for the minor between June 19 and September 19, 2019, in Ukiah and at UCSF, but Mother and Father attended none of them.
2. Testimony of State Adoptions Specialist Alanna Ayres
State Adoptions Specialist Alanna Ayres visited the minor in his foster parents' home 11 times, spending approximately an hour each time. The foster parents guided and instructed minor how to eat. They had purchased special oral motor tools to stimulate his cheeks and mouth to assist him in speech development, as well as a special cup to help him learn to drink. The minor was happy and playful, interacting with his caregivers. He brought them toys and books for them to read to him. He wanted to be cuddled by the foster mother and called her "mama." They communicated in sign language. The minor's face lit up when the foster father entered the room, and the minor climbed into a chair to sit next to him.
In Ayres's view, the foster mother had gone "above and beyond" in her care of the minor, purchasing special tools, obtaining ankle braces recommended by the minor's doctor, taking him to frequent appointments at UCSF, and performing his daily developmental tasks to encourage his motor skills. She participated in trainings and conducted her own research to better advocate for his needs consistent with his Down's syndrome diagnosis, including a specialized test for his hearing.
As an adoption specialist, Ayres assessed the bond between a child and their potential adoptive placement and whether the caregiver met the child's medical, physical, and emotional needs. Based on enumerated factors, Ayres testified that the minor had a strong bond with his caregivers. Under their care, he received monthly physical therapy, weekly Early Start services (including speech and feeding therapy) and weekly preschool preparation. They took him to a play group at the library and a gym to assist his socialization.
Ayres testified that removing the minor from his foster home would be detrimental because he had been placed there since he was two months old; minimizing losses for a child who had experienced trauma or ongoing developmental and medical issues was in his best interests.
3. Testimony of Father
Father testified he did not know exactly why the minor had been detained. Initially he believed the minor would be better off in a different home, but he claimed he was now willing and able to take the minor to physical therapy and speech therapy because the family had two vehicles and Mother was on disability and able to care for him. Father also testified that he was let go from his job so his schedule had opened up.
Father acknowledged the minor never had the chance to bond with him. He thought the minor was happy to see him when picked up for visits and, the last time, reached out to grab Father and wanted to be held. Father had not read books to the minor, believing it was pointless because the minor could not hear. Father had experienced adults with Downs syndrome due to his family's work at a care facility, but he could not compare the minor's syndrome with those of adults. He had not been to any of the minor's doctor appointments. He knew the minor had to sit up straight while drinking to avoid choking; if the minor got a lot of fluid in his lungs, Father "guess[ed]" he would take him to the emergency room.
After Father's direct examination, the court appointed Father a new attorney (Andrew Conway) and continued the section 388/366.26 hearing to October 30, 2019, so counsel would have time to prepare. The court later continued the hearing to November 13, 2019, at the request of Father's attorney.
P. Continued Section 388/366.26 Hearing (November 13, 2019)
1. Continued Testimony of Father
Father reiterated he had not attended any of the minor's medical appointments or physical therapy, and stated he was not even aware the minor had physical therapy. He did not read any of the Agency's reports but instead "toss[ed] them to the side." When pressed whether he believed the minor could not hear at all, Father replied that he did not know because he had not spoken to the doctor.
2. Testimony of Mother
Mother testified she attended both regular pediatric and specialist appointments for the minor, but they did not provide much information relevant to his needs. She could transport him to medical appointments in the future, but she had attended only some of his medical appointments since filing her section 388 petition.
Mother had spoken to Early Start, preschool, and Healthy Start in case the minor was returned. She worked with the minor on his textile aversion, knew that his beverages needed to be thickened, and took him to speech therapy, but was unaware of his physical therapy and did not thoroughly read the Agency's reports. She was in a Triple P group to better herself as a parent and would be willing to use WRAP services if the minor was returned.
Mother asserted the minor called her "momma," signed "Mom" at her, and went with her to church and on errands. She claimed the minor reached out to Father, displayed affection, and played with his siblings. She denied any emotional or physical violence with Father during their relationship. She claimed the children were not allowed to go onto the porch where she kept the marijuana seedlings.
3. Other Testimony
April Ford served as a parent partner through the WRAP program. The only time she recalled Father being there was when he made a racist slur against the therapist of the minor's sibling. It had been difficult at times to connect with Mother for appointments. The bedrooms in the home were unsanitary, the kitchen ceiling had fallen in, and the parents regularly argued in front of their children, which caused the children distress.
Erika Gatlin, a teacher with the Mendocino County Early Start program, worked weekly with the minor in his foster home from December 2018 through July 2019. The minor was very comfortable with his foster mother, used sign language, reached out to her to be picked up, and leaned in towards her. The foster mother always joined Gatlin's sessions with the minor so she could practice exercises with him during the week. The foster mother's work with the minor contributed to his progress in communicating, drinking from a cup, and mobility. The foster father actively participated on days he was the main caregiver, and the minor was comfortable with him. The minor appeared "calm, comfortable, confident" in the foster home.
Q. Ruling on Section 388 Petition and Section 366.26 Issues
The court ruled on January 29, 2020. As to Mother's section 388 petition, the court found there had been a change of circumstances due to Mollie declining to adopt the minor. The court nonetheless denied the petition, concluding it was not in the minor's best interest to further delay permanency and stability in favor of Mother's desire to care for him. The minor's caregivers, with whom he had lived since May 2017, provided him with the emotional, psychological, and physical stability that he required, and they could meet his significant physical and developmental needs. The record did not show that the parents had the ability to meet his needs, given their testimony, their attending "virtually none" of his appointments at UCSF, Father's "next-to-no" emotional bond with the minor, and the indication that the home was unsafe based on witness observations and the physical set-up of the home.
Turning to the section 366.26 issues, the court found by clear and convincing evidence that the minor was adoptable in light of the caregivers' ability and willingness to adopt him and their strong emotional bond. Evidence did not support the application of the parent-child bond exception, since there was no observable bond between the minor and Father and little evidence of a bond between the minor and Mother, the minor had not been in the day-to-day care of his parents for nearly his entire life, there had not been consistent visitation throughout the case, and there was insufficient evidence of an emotional attachment between the minor and the parents. The court also declined to apply the sibling bond exception. Observing that the dependency case had been going on for approximately 31 months, the court further found that the minor had been "exposed to unsafe conditions in the home, inappropriate verbal arguing between the parents and an absence of consistent meaningful caregiving to support his vast medical, physical and emotional needs."
The court terminated Mother's and Father's parental rights and selected a plan of adoption. This appeal followed.
II. DISCUSSION
Mother and Father challenge a number of the court's orders.
The Agency argues that Father lacks standing to appeal the issues raised in his opening brief because he did not join in Mother's section 388 petition or file his own, and because he submitted to the court's termination of his parental rights. We agree with Father that he nonetheless has standing because he is aggrieved by the juvenile court's orders. In any event, as the Agency acknowledges, the issues Father asserts are joined in by Mother, so we would address them anyway.
A. Request for Bonding Study and Continuance of 366.26 Hearing
As discussed ante, on the eve of the section 366.26 hearing, Mother sought an order authorizing a bonding study and continuing the section 366.26 hearing to allow time for the study. The court declined, finding the continuance would not be in the minor's best interest and the request was made "extremely late given the circumstance[s]."
1. Law
Dependency hearings may be continued upon a showing of good cause if the continuance is not "contrary to the interest of the minor." (§ 352, subd. (a)). In deciding whether to grant a continuance, the court "shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a).) We review the denial of a continuance for abuse of discretion. (In re V.V. (2010) 188 Cal.App.4th 392, 399.)
By the time Mother asked for a continuance in May 2019, the minor had been in the dependency system for approximately two years and was on the cusp of a permanent placement. Mother's only argument for delaying the placement was to conduct a bonding study. (See Evid. Code, § 730; In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084). There is, however, no requirement that a bonding study be obtained as a condition to terminating parental rights. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339). The denial of a bonding-study is also reviewed for abuse of discretion. (Ibid.)
2. Analysis
The court did not abuse its discretion in denying the continuance and bonding study. As the court observed, Mother's requests came late. By January 2019, the plan for the minor to be adopted by Mollie had unraveled, Mother had filed her section 388 petition to reinstate reunification services in March 2019, the Agency in its report dated March 28, 2019 had recommended termination of parental rights and adoption by the caregivers, and the section 366.26 hearing was initially calendared for April 11, 2019. Mother waited until April 29, 2019—10 days before the date set for the contested section 388 and section 366.26 hearing—to serve her request to continue the section 366.26 hearing and obtain authorization for a bonding study.
Furthermore, because of the timing of the request, the bonding study would have delayed the proceedings by about a month or more. Mother estimated she would "possibly" need three or four weeks to obtain the study, but the minor's counsel noted the delay would be much longer to obtain an in-depth bonding assessment that included the foster parents. Such a delay may reasonably be considered substantial. (See In re V.V., supra, 188 Cal.App.4th at p. 400 [upholding denial of three-week continuance where it was unclear that the time would be sufficient].)
Moreover, the record disclosed little if any need for a bonding study. Mother urges that a study would have assisted the court in deciding whether the parent-child relationship exception to adoption applied (§ 366.26, subd. (c)(1)(B)), and it is generally true that such a study can help the court determine the existence and nature of a parental relationship. (In re S.R. (2009) 173 Cal.App.4th 864, 869; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1167-1168; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316.) In this case, however, there was no indication that a bonding study was needed for that determination. The Agency's reports and service logs provided the court substantial information about the relationship between the minor and his parents and siblings. The minor had no apparent bond with Father, and while the minor had ties with Mother due to visitation, there was no appreciable evidence of a parental bond between Mother and the minor. Because of the amount of time a bond study takes, a request to continue a section 366.26 hearing for a bonding study may be contrary to the child's interests where, as here, existing evidence does not indicate a likelihood that the child has significant bonds with the family or contains enough information for the court to make an informed decision. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197; In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1338-1341.) Mother fails to establish an abuse of discretion.
B. Refusal to Admit Beck's Report and Striking of Beck's Testimony
Father and Mother contend the juvenile court erred by refusing to admit Beck's report and by striking her testimony. We review for an abuse of discretion. (People v. Diamond (1970) 10 Cal.App.3d 798, 801.)
1. Beck's Report
As described ante, the Beck report was described by Mother's counsel as a "report by Judy Beck MSW/CFCM which identifies a significant bond that [the minor] has with his family." (Italics added.) The report described Beck's observations of the minor and his siblings, Mother, and Father in a park for two hours and, on that basis, recommended that the minor be returned to a plan of family maintenance. Using a "broad definition" of "attachment" and "bonding," Beck's report concluded there was a "defined, bonded and attached relationship" between family members. Beck's observations and report were made at the direction of Mother's counsel, without prior notice to the minor's attorney or to the Agency.
The court read Beck's report and concluded that Beck's observation of the family improperly interfered with the ability of the minor's counsel to act as his guardian ad litem. The court excluded the report for purposes of the section 388/366.26 hearing, both on that ground and because it was directed to opinions about sibling bonding.
The court did not abuse its discretion. By failing to notify the minor's counsel (or even the Agency) of Beck's intended observations, Mother and her counsel deprived the minor of the protections of his attorney and guardian ad litem, who could have enforced the minor's right to decline participation in Beck's assessment.
2. Beck's Testimony
After ruling the report inadmissible, the court allowed Beck to give non-expert testimony concerning what she observed at the park. On cross-examination, Beck admitted that Mother's counsel had asked her "to meet with the parents and the children and do a bonding assessment," and the minor's counsel moved to strike all of Beck's testimony on the ground that Beck's answers showed Mother's counsel had asked her to perform an unauthorized bonding study. The court struck Beck's testimony, stating that Beck's answers "make clear that the purpose of the visit from [Beck's perspective] was to perform a bonding study without court approval and without knowledge of [the minor's] lawyer who is also his acting guardian ad litem. [¶] I find it to be an interference in the attorney-client relationship and a violation of the court rules requiring court approval prior to conducting a bonding study. [¶] Her testimony is stricken, and the witness can be excused."
The court did not abuse its discretion. Mendocino County Local Rule 5.14(c)(2)(c)(iii)(b) states: "No party or attorney in a dependency proceeding will cause the minor to undergo a physical, medical or mental health examination or evaluation without court approval. Each party will have the right to notice and to be heard on the person to be selected to perform medical or mental health evaluations other than medical examinations per W&I § 324.5." Beck's report of her observations, including how the minor appeared physically and emotionally during familial interactions, for the purpose of advocating the minor's return, could reasonably be construed to fall within the scope of this rule. Neither Mother nor Father specifically contends otherwise.
Father argues that Beck was just describing what Mother's counsel had asked her to do when counsel first contacted her, at a time when the request for a bonding study was still pending, and Beck ultimately did not perform a formal assessment but merely observed the parents and siblings informally. And yet, Beck's final report included an "assessment" that the family demonstrated a "bonded and attached relationship," and Mother's counsel represented to the court that the report demonstrated the minor was bonded to the family. Given what Beck actually testified at the hearing (as opposed to appellate counsel's attempts to interpret it), the court was within its discretion in finding that the observations to which Beck testified were the product of an attempted end-run around the local rules.
At any rate, as the court further concluded, Beck's testimony had marginal probative value, because a two-hour observation of the family in a park did not provide the foundation necessary for rendering broad opinions as to how the family functions on a daily basis. This slight probative value was substantially outweighed by the prejudice arising from the inability of minor's counsel to participate in (and possibly preclude) the observed visit. The court acted within its discretion in striking the testimony.
3. Harmless Error
Any error in the exclusion of Beck's report and testimony was harmless in any event. As the court noted, how the family acted in a park for two hours provided relatively little basis for Beck's assessment. In addition, under cross-examination, Beck bolstered the Agency's position by agreeing that the parents' failure to provide for their children's medical and therapeutic needs did not constitute "good parenting." Given that the court found Beck's report (which it read) and testimony (which it heard) to be unpersuasive in ruling on their admissibility, we find no likelihood the court would have found the report and testimony so persuasive on the merits as to produce a different outcome in the case.
C. Siblings' Request to Intervene
At the combined hearing on Mother's section 388 petition and section 366.26 issues, counsel for the minor's siblings (Rosario) announced that she would "set the record straight that I am intervening on the 388 motion today on behalf of [the minor's] siblings." The court denied Rosario's request to intervene on the ground that she had not filed a written petition under section 388. (See § 388, subd. (b).)
Rosario reiterated that she was "intervening at least for [Mother's] 388 motion." When asked what she meant by "intervene," Rosario replied, "being able to express my clients' wishes." The court denied her request to intervene.
Rosario then produced a "JV-180" (required for filing a section 388 petition) that she wanted to submit to the court, explaining: "All I'm asking is that these children be heard, just their express wishes. I'm not asking that I put on any evidence. It's just the children's express wishes." The court noted that Rosario had not offered the JV-180 for filing until the day of the hearing. In addition, the court asserted, the sibling relationship exception considers only the minor's perspective and the minor's best interests. The court concluded: "Your JV-180 is denied. It's tardy. And it's—the proffer as to her wishes is irrelevant to the determinations in the hearings before the court." The siblings do not appeal the court's ruling, but Father does.
1. Law
Each child has his or her own dependency proceeding. A parent or other person who has an interest in the child may petition the court for a hearing to modify or set aside a prior order as to that child as set forth in section 388, subdivision (a).) Furthermore, a sibling of that child may request "consideration" when the court determines a case plan or permanent plan for the child, and may request any other order that is in that child's best interests. (§ 388, subd. (b).) A petition under section 388 must be made on form JV-180 with statutory notice. (Cal. Rules of Court, rule 5.570(b), (g).)
2. Analysis
The court properly denied Rosario's oral request to "intervene" or join in Mother's section 388 petition, because section 388 requires a written petition. Her "JV-180" was properly denied as untimely, because it was not filed and served with proper notice before the hearing. Moreover, Father does not establish that the form Rosario said she could file complied with the requirements of section 388.
Father points us to the court's remark that the sibling's views would be irrelevant to the sibling exception to adoption and urges that the court was incorrect. (Citing In re Celine R. (2003) 31 Cal.4th 45, 53-55 [although court must determine whether interference with a sibling relationship would be detrimental to the adoptive child, not to that child's sibling, evidence of the sibling's views of that relationship might be relevant as indirect evidence]; see In re Hector A. (2005) 125 Cal.App.4th 783, 793-798.) But that does not change the fact that Rosario did not timely file a sufficient petition as required by section 388, subdivision (b).
At any rate, any error in declining to allow the siblings to "intervene" or join in the combined section 388 and section 366.26 hearing was harmless. Rosario asserted she did not intend to put on any evidence, but merely wished to convey her clients' "express wishes." As the juvenile court noted, she accomplished that goal through her statements on the record. The siblings' interactions with the minor were also described in the Agency's reports and the testimony of witnesses (including the parents) offered by Mother. Any error in not allowing the minor's siblings to intervene was harmless beyond a reasonable doubt. (See In re Hector A., supra, 125 Cal.App.4th at pp. 798-799.)
D. Mother's Section 388 Petition
Mother's section 388 petition asked the court to undo the prior order terminating reunification services and to return the minor to the parents' care with family maintenance services, claiming that circumstances had changed due to Mollie not adopting the minor, the parents were now willing to care for him, and the siblings were attached to him. The court denied the petition because the requested order was not in the minor's best interests.
1. Law
Under section 388, a parent may petition the court for a modification of a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1).) "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47; italics added).
When dependency proceedings reach the stage of a section 366.26 hearing, the parent's interest in the care, custody and companionship of the minor is subordinate to the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Angel B. (2002) 97 Cal.App.4th 454, 464 [rebuttable presumption at § 366.26 stage that continued foster care, or permanent plan of adoption, is in the child's best interests].) A denial of a section 388 petition is reviewed for abuse of discretion. (In re Stephanie M., 7 Cal.4th at p. 318).
2. Analysis
The court did not abuse its discretion. In concluding that the minor's best interests were not furthered by delaying his permanency and stability in favor of Mother's desire to care for him, the court noted the evidence was "overwhelming" that the minor's current caregiver provided him with emotional, psychological and physical stability, he was "best served" by remaining in the home of the caregivers, and the parents had not shown they had the ability to care for the minor or had a true understanding of his needs. Abundant evidence, described ante, supported the court's conclusions.
Mother nevertheless argues that the court erred by not applying factors articulated in In re Kimberly F. (1997) 56 Cal.App.4th 519. Observing that courts may be tempted to simply compare the household and upbringing provided by the parents with that of the caretakers, the court in Kimberly F. listed factors courts should consider when assessing the minor's best interests on a petition for modification: the seriousness of the problem that led to the dependency; the strength of the relative bonds between the dependent children to both the parent and caretaker; and the degree to which the problem may be easily removed or ameliorated and the degree to which it actually has been. (Id. at p. 532.) The child's bond to a foster parent is an important consideration, but it is not dispositive. (Id. at p. 531; see also In re J.M. (2020) 50 Cal.App.5th 833, 837, 847 [analysis of parent's petition for modification must "consider the benefits to a child of remaining connected with his or her biological parent and extended family"].)
Mother notes the tension between our Supreme Court's decision in Stephanie M., which speaks of the child's stability and permanency, and the factors set forth in Kimberly F., which consider the extent to which the parents share a bond with the child and have addressed the problems that led to the dependency. (See In re Kimberly F., supra, 56 Cal.App.4th at p. 534; In re I.B. (2020) 53 Cal.App.5th 133, 159-163.) We need not decide whether Stephanie M. or Kimberly F. are best suited for this case, however, because the requirements of both are solidly met here.
Removing the minor from the foster home that he had known for all but two months of his life and putting him in the home of Father and Mother would not promote the minor's stability or permanency, and there is no substantial argument that it would. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) And even if we applied the Kimberly F. factors, the evidence and the court's findings in this case addressed them. The issues that brought the parents before the dependency court were grave: their neglect of the minor's medical needs to the point that his life was in danger, and Mother's inability to protect her children from Father's anger. The parents utterly failed to ameliorate these problems: while they testified they were willing to care for the minor, the record amply showed that they repeatedly failed to attend his medical appointments and meet his significant needs, they lacked any real understanding or ability to do so, and Father's displays of anger around the children persisted. As to the strength of the minor's bonds, the minor had no bond with Father (as Father admitted), he was affectionate with Mother during visits, but he had a strong bond with his foster parents who met his physical and developmental needs and provided him with the emotional, psychological, and physical stability he required.
Mother contends that the court, in reaching its decision, merely compared the foster home with Mother's home and the relative parenting ability of the minor's caregivers and Mother. She reminds us that finding a "better" family is not the purpose of dependency proceedings or the permanency planning hearing, and being a perfect parent, having a single family home, or being better off financially are not the standards by which parents in dependency proceedings should be judged. (Citing David B. v. Superior Court (2004) 123 Cal.App.4th 768, 789-790; In re G.S.R. (2008) 159 Cal.App.4th 1202.)
But that is not what the juvenile court did here. Although the court did contrast the minor's welfare in his foster home with the prospect of his welfare in Mother's care, it was not for the purpose of placing him in a more affluent home with superior caregivers, but to underscore that the minor was safe in his current placement and would not be safe if returned to his biological parents. Both of these considerations are important, and, as set forth above, ample evidence supported the court's conclusions.
Mother persists that the minor's best interests included a relationship with his family (In re J.M., supra, 50 Cal.App.5th at p. 847-848), he had regular and consistent visits with his parents and siblings (including overnights), he hugged and engaged in activities with his siblings, and he was bonded with Mother, reached for her, and was affectionate with her. It is not our role, however, to reweigh the evidence. While one aspect of the minor's interests may be a relationship with his biological family, it was reasonable for the court to conclude that returning him to his parent's care, under the entirety of the circumstances, was not in his best interests.
E. Beneficial Parent-Child Relationship Exception
At the conclusion of the section 366.26 hearing, the court found that Mother had not proven any exception to the statutory preference for the permanent plan of adoption, and terminated Mother's and Father's parental rights. Mother contends substantial evidence did not support the finding that the parent-child exception (§ 366.26, subd. (c)(1)(B)(i)) did not apply.
1. Law
Under section 366.26, subdivision (c)(1), "[i]f the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." (In re Helen W. (2007) 150 Cal.App.4th 71, 79.) The juvenile court found, and the parties do not contest, that the minor was likely to be adopted. The court was therefore obligated to terminate Mother's and Father's parental rights unless they showed that doing so would be detrimental to the minor under a statutory exception. (In re C.B. (2010) 190 Cal.App.4th 102, 122; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 ["it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement"].)
Under the statutory exception for a beneficial parent-child relationship, Mother had to prove (1) she "maintained regular visitation and contact" with the minor and (2) the minor would "benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i)); see In re Breanna S. (2017) 8 Cal.App.5th 636, 646 [parent must show that regular visitation, a beneficial relationship, and the benefit of preserving a significant relationship outweighs the stability of adoption].)
In reviewing a ruling on the parent-child relationship exception, some courts have applied the abuse of discretion standard. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Others determine whether the ruling is supported by substantial evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Under a hybrid standard of review, the frequency and consistency of visitation and the nature of the parent-child relationship are reviewed for substantial evidence, while the abuse of discretion standard applies to whether such visitation and relationship demonstrates that termination of parental rights would be detrimental. (In re E.T. (2018) 31 Cal.App.5th 68, 76; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) The matter is presently before the California Supreme Court. (In re Caden C. (2019) 34 Cal.App.5th 87, review granted, July 24, 2019, S255839.) Here, Mother fails to demonstrate error under any of these standards.
2. Analysis
As to visitation and contact, ample evidence supported the court's finding that there had not been consistent visitation with the minor throughout the case. "Regular visitation exists where the parents visit consistently and to the extent permitted by court orders." (In re I.R. (2014) 226 Cal.App.4th 201, 212.) Here, testimony at the hearing and evidence in the Agency's reports indicated that the parents cancelled visits several times. In particular, once they regained the care of the minor's siblings, Mother was habitually tardy to visits with the minor and both parents cancelled their Thursday visits with him. Several weeks of visits were cancelled before the section 366.26 hearing began in early 2019.
As to the relationship between the minor and the parents, there was overwhelming evidence that he had virtually no relationship with Father. To the extent he had a relationship with Mother, ample evidence supported the conclusion that the benefit of preserving it would not outweigh the stability available through adoption by his caregivers. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Variables in assessing the parent-child bond include the "age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs." (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) Here, at the time of the court's ruling on January 29, 2020, the minor was nearly three years old and had spent his entire life, except for his first two months, outside of the parents' care (and in the custody of the prospective adoptive parents). While there was evidence the minor seemed happy with Mother and showed her affection, the evidence also indicated that he was generally happy without her, rarely appeared upset when ending visits with her, and displayed negative behaviors after overnight visits with her. Moreover, the parent-child exception requires proof of a parental bond, not just frequent and loving contact. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) As discussed ante and as the court found, the parents displayed no real understanding of the minor's needs, and the record reflected their difficulty or inability to meet them.
Mother insists that she and the minor shared a bond because she would hold and cuddle the minor, kiss him, feed him, tell him she loved him, get on her hands and knees to talk softly to him, and change his diaper. In addition, Mother argues, she filled a parental role during visits by feeding, bathing, and holding the minor and giving him medications and love. She also completed the Triple P parenting program for special needs children and contacted agencies regarding services that he would require. It is not our role, however, to reweigh the evidence. Substantial evidence supported the court's conclusions, and no abuse of discretion is shown. Mother and Father fail to establish error.
During briefing, Father filed a request for judicial notice and augmentation of the record as to documents that had been filed in the dependency proceedings for the minor's siblings. We granted the augmentation request, augmented the record with the documents attached to Father's request, and deferred ruling on the judicial notice issues pending consideration of the merits. Given the augmentation, we now deny the judicial notice request as moot.
III. DISPOSITION
The orders are affirmed.
/s/_________
NEEDHAM, Acting P.J. We concur. /s/_________
BURNS, J. /s/_________
RODRIGUEZ, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.