Opinion
A152822
07-31-2018
In re C.T. et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. L.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. J16-00676, J16-00677)
L.H. (Mother) and R.T. (Father), parents of seven-year-old C.T. and two-year-old L.T., appeal from the juvenile court's orders denying their petitions for modification under Welfare and Institutions Code, section 388 (388 petition), and terminating their parental rights over the children under section 366.26. They contend the court: (1) abused its discretion in denying their 388 petitions; and (2) erred in terminating their parental rights because the parent-child beneficial relationship exception to adoption applied as to C.T. We reject the contentions and affirm the orders.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural history of this case—beginning with the filing of the original dependency petition on July 6, 2016—is set forth in this court's prior unpublished opinion, L.H., et al., v. The Superior Court of Contra Costa County (A151483, Sept. 18, 2017). To summarize, the children were at risk due to Mother and Father's chronic substance abuse and pervasive domestic violence. There were reports that Father beat Mother so severely while she was pregnant that she was unable to walk, and beat C.T., leaving marks and bruises on her. He threatened to kill Mother, and the maternal grandmother found loose bullets in L.T.'s diaper bag. Mother's sister saw Father "torture" his older son by inappropriately tugging the son's hair and hands. Mother described an incident in which Father forced himself into her home, grabbed her hair, pushed her onto the bed, took his pants off, then punched her in her face and ears until she could not see or hear. C.T., who had observed domestic violence between her parents, said she was afraid Father would cut off Mother's head.
After the parents failed to make sufficient progress in their case plans, the juvenile court terminated reunification services and scheduled a permanency hearing under section 366.26 (366.26 hearing). Father and Mother each filed writ petitions, and we affirmed the juvenile court's orders.
On September 14, 2017, Mother filed a 388 petition asserting there were changed circumstances because she had separated from Father, was participating in counseling and 12-step meetings, and had safety and relapse prevention plans in place. She requested reunification services and increased visitation, asserting that the children's best interests would be served because "[C.T.] is very attached to her mother, and her extended family. . . ." She did not discuss L.T.'s best interests.
On September 19, 2017, Father filed a 388 petition asserting there were changed circumstances because he had maintained a clean and sober lifestyle, was engaged in domestic violence/individual therapy, was employed, was visiting the children regularly, and had been granted unsupervised overnight visits with his son who is not the subject of these proceedings. He asserted that reinstatement of services and increased visitation would be in the children's best interests because they had a close relationship with him and his son.
Contra Costa County Children and Family Services Bureau (the Bureau) filed a 366.26 social study report recommending that C.T. and L.T. be found adoptable and that Mother and Father's parental rights to the children be terminated. The children were doing well in the home in which they had lived since July 2016, and the foster parents wished to adopt them. C.T. was physically healthy and developmentally age appropriate, and was enjoying school and various activities. She had been diagnosed with reactive attachment disorder, and presented with a lot of boundary issues. She was making progress in therapy but still had "difficulty bonding [with] and trusting adults." "She does not want to talk about her mom or dad and this seems to be a very sensitive subject for her."
L.T., who was born with amphetamine/methamphetamine in her system, was described as "presently healthy" with age appropriate development. She was affectionate with her caregivers and less so with strangers. She was beginning to walk and was saying a few words. Mother, Father, and Father's son were having regular supervised visits with C.T. and L.T. Mother acted inappropriately during three visits, but was otherwise appropriate and affectionate. Father was appropriate, attentive, and affectionate during his visits. When asked how she liked the visits, C.T. responded, "good."
The social worker met with C.T. and told her the judge would be deciding where she and L.T. would be living. C.T. said she did not want to return to her parents "because they fight and say bad words." She wished to live with her foster parents, "mama [B.] and [J.]," who "love me and have good food." The social worker was concerned that C.T. did not want to return to Mother and Father even though she had ongoing contact with them throughout the dependency. The social worker opined that it would be in the children's best interests to remain together in the home of their caregivers, who wished to adopt them. The social worker concluded that C.T. and L.T. are adoptable, and that the parent-child relationship does not outweigh the benefits of adoption, where "[t]he prospective adoptive parents are willing and able to continue providing C.T. and L.T. with stability, permanence, diligent care, and love."
C.T. and L.T.'s maternal aunt filed 388 petitions seeking relative placement. The matter was heard on October 6, 2017, and denied without prejudice. Later, the maternal aunt's request for relative placement was set for a renewed hearing to take place on November 27, 2017.
The request for relative placement is not a subject of this appeal.
A combined hearing on the 388 petitions and the 366.26 hearing began on September 20, 2017. At Father's request, the juvenile court took judicial notice of the findings and orders from his son's dependency case. Minors' counsel reported that C.T.'s repeated preference was to remain with the current caregivers.
In support of her 388 petition, Mother presented documentary evidence, including Narcotics Anonymous/Alcoholic Anonymous attendance sheets, certification of completion from the Ranch program, and photographs of C.T. and L.T. She was attending three to four 12-step meetings a week and was on step 4. She had resumed domestic violence counseling, which she said was helping her to understand the severity of the domestic violence, and how it had affected the children. She continued to attend sessions with STAND and was trying to stay involved with C.T.'s education. She brought activities to visits and helped C.T. complete her school work.
Mother had not lived with Father since April 2017 and had seen him only once, when visits overlapped. She had been sober since March 17, 2017, and had a solid safety plan in place. She was taking medication for bipolar disorder, was unemployed, and was living with an aunt. After relapsing in March 2017, she reentered inpatient substance abuse treatment with a proposed completion date of August 2017, but left the program early. She said she left based on the advice of a counselor, but when asked for supporting documentation, said she lost the paperwork when her car was broken into.
The adoption social worker testified that with the exception of three visits, Mother was appropriate during visits. Father's visits were also appropriate . The social worker believed C.T. and her parents shared "somewhat of a relationship," but that it was not the typical relationship she would expect when a child is closely bonded with the parents. The social worker visited C.T.'s school, where C.T.'s teacher reported that C.T. was well behaved. The teacher had not heard from Mother in months, and had not heard back from Father after reaching out to him. The social worker also visited C.T. and L.T. at their foster-adopt home. C.T. said she wished to live with her foster parents. 16-month-old L.T. called her foster parents "momma and dada."
Father testified he was living in a mobile home and working as an iron worker. He was continuing to drug test in his son's dependency case, was seeing a psychologist and therapist, and had three more classes to complete in an anger management program. He said he accepted responsibility for the removal of C.T. and L.T. from his care, and explained that he was a weak communicator who lacked coping skills. He acknowledged that C.T. and L.T. had seen or heard some domestic violence incidents. To avoid future domestic violence, Father said he would continue with his therapy and practice what he has learned. He was participating in a 12-step program in order to deal with his substance abuse issues.
Father testified that he brought a basket full of activities to share with C.T. and L.T. during visits. He played with L.T. and hugged her, and believed she recognized him. C.T. was "ecstatic" when she saw him; she would run to him, call him daddy, and bring him flowers or hand-made gifts. He recalled C.T. saying she was afraid he would cut Mother's head off; he explained that C.T. made the statement because she witnessed a domestic violence incident during which Father wrestled a knife away from Mother. Asked about a particular serious domestic violence incident, Father said, "I lost it. . . It is kind of a blur to me." He did not remember whether he sexually assaulted Mother during the incident, but did not think he did. Father initially denied there was any history of domestic violence with the mother of his son. Upon further questioning, he did not deny there was domestic violence but said he did not think his son had witnessed any incidents.
The juvenile court denied Mother's 388 petition on the ground that she had failed to make a showing of changed circumstances. The court found that Mother continued to struggle with substance abuse, and that she did not yet fully understand the extent of the domestic violence and the impact it had on her children. The court found that Mother was "still on a very long and difficult journey," and that "unfortunately the journey has taken too long for dependency proceedings."
The juvenile court also denied Father's 388 petition, finding he had failed to fully acknowledge the issues and problems that led to the dependency. The court expressed disappointment that Father was ". . . splitting hairs, dancing around issues and not hitting them head on and not being direct in responding to questions, which really came across as still in a state of denial." The court found that even if it were to generously find changed circumstances for Father, she could not find that it would be in C.T. and L.T.'s best interests to modify prior court orders.
As to the 366.26 portion of the hearing, the juvenile court found by clear and convincing evidence that C.T. and L.T. were adoptable, and that no exception to termination of parental rights applied. The sibling relationship exception did not apply because C.T. and L.T. were situated differently from their half-brother and the benefits of adoption outweighed their relationship. The parent-child beneficial relationship exception also did not apply. As to L.T., given her age and the amount of time she had spent out of her parents' care, Mother and Father were friendly visitors who did not occupy a parental role. As to C.T., the court noted the loving, warm interactions she shared with both parents, but found that in light of her needs and the trauma she had endured, "denying permanence and the ability to move on to a forever, safe, stable home would cause more harm" to C.T.
DISCUSSION
388 Petitions
Mother and Father contend the juvenile court erred in denying their 388 petitions. We reject the contention.
After termination of reunification services, the focus in dependency proceedings shifts from the parents' custodial interest to the child's need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "It is presumed, at that point, that continued care is in the best interest of the child. The parent, however, may rebut that presumption by showing that circumstances have changed that would warrant further consideration of reunification." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) A juvenile court's order may be modified under section 388 if the party seeking the modification can establish a genuine change of circumstances, and also prove that modification of prior orders is in the child's best interests. (In re Aaron R. (2005) 130 Cal.App.4th, 697, 705-706.) Whether a prior order should be modified rests within the discretion of the juvenile court, and its determination will not be disturbed on appeal absent a clear established abuse of discretion. (In re Stephanie M., supra, 7 Cal. 4th at p. 318.) "The denial of a section 388 motion rarely merits reversal as an abuse of discretion." (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686; In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)
Mother asserts she made a sufficient showing of changed circumstances to establish the first prong of section 388 because she had fully separated from Father and was participating in services. The juvenile court found, however, that Mother still lacked a full understanding of how the domestic violence had affected the children. Further, she had a long history of substance abuse issues and had most recently relapsed in March 2017—only six months before the 388/366.26 hearing took place. She reentered inpatient substance abuse treatment with a proposed completion date of August 2017, but left the program early. She was in a 12-step program but was only on step 4. The certification of completion she presented predated the prior orders and therefore did not support her position that circumstances had changed since the prior orders. The court did not abuse its discretion in finding Mother had failed to show changed circumstances.
The juvenile court also did not abuse its discretion in denying Father's 388 petition. The court noted that while Father's testimony in support of his 388 petition was more convincing than his prior testimony at the contested review hearing, he was still "not being direct in responding to questions, which really came across as still in a state of denial." "[T]here were moments and glimpses in the testimony where I was waiting and thinking, boy dad is really going to break through here, and he's going to demonstrate he's really getting it and he's made changes. And then it just wouldn't go down that path. It was very disappointing." Notwithstanding Father's efforts to develop an understanding of domestic violence and to overcome the issues that led to the dependency, his testimony showed he was still in a state of denial, and that he had, at best, shown that circumstances were "changing." (In re Casey D. (1999) 70 Cal.App.4th 38, 49 [a parent must establish "changed," not merely "changing," circumstances].)
Further, even assuming Father showed changed circumstances, the court did not abuse its discretion in finding that Father failed to show that modification would be in C.T. and L.T.'s best interests. As noted, a showing under section 388 requires a parent to show both changed circumstances and that modification of prior orders is in the children's best interests. (E.g., In re Kimberly F., supra, 56 Cal.App.4th at p. 529 ["It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child"].) Here, the dependency was the result of serious and chronic substance issues and pervasive domestic violence, and both parents had failed to make substantial progress in their treatment plans. Further, at this stage of the proceedings, the focus was on the children's need for permanency and stability, not the parents' custodial interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) By the time the 388/366.26 hearing took place, L.T. had lived in her prospective adoptive parents' home almost her entire life. C.T. had endured significant trauma while in the parents' care but had made progress in therapy and wanted to remain in her prospective adoptive home. Under these circumstances, the court reasonably found that it would be detrimental to delay permanency for the children, and that it would not be in their best interests to modify prior orders.
Termination of Parental Rights - Substantial Evidence
Mother and Father contend the juvenile court erred in terminating their parental rights because the parent-child beneficial relationship exception to adoption applied as to C.T. We reject the contention.
They do not raise an appellate issue regarding the applicability of the sibling relationship exception as to either C.T. or L.T., or the parent-child beneficial relationship exception as to L.T. There was very little, if any, evidence that Mother and Father shared a close bond with L.T. such that the parent-child beneficial relationship would have applied. --------
"At a permanency planning hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans." (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) If the court finds by clear and convincing evidence that a child is adoptable, it must terminate parental rights unless it "finds a compelling reason for determining that termination would be detrimental to the child [such as] . . . [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Once a court determines that a child is adoptable, the burden of proving an exception to adoption applies is on the parent seeking to avoid the termination of parental rights. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
The "benefit" necessary to trigger the parent-child beneficial relationship exception to adoption has been interpreted to mean that "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Ibid.)
There is a split of authority concerning the appropriate standard for reviewing a ruling that relates to the applicability of a statutory exception to the termination of parental rights. (E.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [abuse of discretion]; In re Autumn H., supra, 27 Cal.App.4th at p. 576 [substantial evidence].) The "practical difference between the two standards of review [is] not significant" and a reviewing court should not interfere unless the facts when viewed in the light most favorable to the judgment are such that no reasonable judge could have made the challenged action. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Under either standard of review, the juvenile court did not err in terminating Mother and Father's parental rights. Mother and Father assert that their ongoing, regular, loving, and appropriate visitation with C.T. establishes that the exception applies. While both parents were caring and loving during their visits and C.T. enjoyed the visits as of the 388/366.26 hearing, C.T. had been out of her parents' care for over 15 months. The parents had not progressed beyond supervised visits during the dependency, and had not played a parental role to C.T. outside of spending time with her during short, supervised visits. Mother suggested she was playing a parental role by trying to stay active with C.T.'s education, but according to C.T.'s teacher, Mother had not been in touch for months, and Father had not responded to the teacher's efforts to get in touch with him.
Moreover, Mother and Father had exposed C.T. to severe domestic violence for years before C.T. was removed from their care, and C.T.'s therapist had diagnosed her with reactive attachment disorder. The social worker understood the diagnosis to mean that C.T. had not been able to develop a good, nurturing relationship with her parents, and opined that C.T. did not share a typical relationship she would expect when a child is closely bonded with her parents. When informed of the pending hearing, C.T. was clear in stating she did not want to live with Mother and Father, and that she wished to live with her prospective adoptive parents.
The beneficial relationship exception requires more than a showing of a frequent and loving contact and an emotional bond. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Parents cannot "derail an adoption merely by showing the child would derive some benefit from continuing a relationship." (Id. at p. 1348.) Instead, the parents must show "exceptional circumstances" that the parental relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home. (Id. at pp. 1348-1349.) The juvenile court did not err in determining that Mother and Father did not meet their burden of showing the beneficial relationship exception to adoption applied.
DISPOSITION
The juvenile court's orders denying the parents' 388 petitions and terminating their parental rights to C.T. and L.T. are affirmed.
/s/_________
Pollak, J. We concur: /s/_________
Siggins, P.J. /s/_________
Jenkins, J.