In re D.G. CA2/5 ( 2016 )

Filed 4/1/16 In re D.G. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re D.G., et al., Persons Coming Under B267443
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK99349)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Rudolph A.
Diaz, Judge. Affirmed.
Janette F. Cochran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the County Counsel, Mary C. Wickham, County Counsel,
Dawyn R. Harrison, Assistant County Counsel, and Brian Mahler, Senior Associate
County Counsel, for Plaintiff and Respondent.
_______________________
M.A. (mother) appeals from the dependency court’s August 24, 2015 order
terminating her parental rights under Welfare and Institutions Code section 366.261 and
selecting adoption as the permanent plan for her three children, ages four, three, and two.
Mother contends the dependency court committed prejudicial error by denying her
section 388 petition2 without a hearing. Mother further contends the trial court
erroneously found no statutory exception applied to prevent termination of her parental
rights. We affirm.
FACTS AND PROCEDURAL HISTORY
On July 9, 2013, mother and father3 waived their rights and pleaded no contest to
a dependency petition filed by the Los Angeles County Department of Children and
Family Services (Department), alleging their two children, then ages two and eight
months, were described by section 300, subdivision (b) based on an unresolved history of
violence between the parents, as well as father’s history of substance abuse. The
dependency court sustained the allegations, placed the children with mother, and entered
a permanent restraining order preventing father from contacting mother. Mother’s case
plan required her to attend domestic violence classes and individual counseling. She
would receive family preservation services and ensure that father remained out of the
family home.
The parents’ third child was born in October 2013. Mother disclosed to the
Department that father had been at the hospital to sign paternity documents. When the
social worker explained to mother that father’s visit was a violation of the restraining
1 Allfurther statutory references are to the Welfare and Institutions Code, unless
otherwise stated.
2 Section 388 permits a parent to petition the court for a hearing to change an
earlier order in the dependency proceeding.
3 Father’s parental rights were terminated, but he is not a party to this appeal.
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order against him, mother said it was a one-time incident and she had not seen or heard
from him since then. By January 2014, mother had only completed 9 of the 15 required
sessions of a domestic violence program. Her poor attendance was attributed to being
pregnant and the responsibility of caring for three children under the age of three.
Mother was unable to obtain individual counseling because she did not meet the medical
necessity requirements for such counseling.
On January 15, 2014, the Department filed a new petition with respect to mother’s
youngest child, which the court sustained under section 300, subdivision (j), based on the
child’s status as a sibling to two children who were already adjudicated as dependents of
the court. The Department’s jurisdiction report dated February 10, 2014, described
mother as cooperative and receptive to the Department’s services. The court sustained an
amended petition after the parents waived their rights to contest.
In June 2014, the Department received a referral call from a neighbor claiming
that father was living with mother, and that the oldest child had a bruise on his face.
When the Department made an unannounced visit, there was no evidence that father was
living at mother’s home, but mother did admit accepting a ride from father, and
permitting her oldest child, who was then almost three years old, to ride in the car without
a car seat. The social worker explained to mother that her actions in accepting a ride with
father violated the restraining order and placed the child in jeopardy. Mother agreed to
have only monitored contact with her children, who would reside with maternal
grandmother. The Department filed a subsequent petition under section 342, alleging the
children were at risk under subdivisions (b) and (j) based on mother’s actions.
Specifically, mother (1) allowed father to have access to all three children in violation of
the restraining order and the court’s order that the father only have visits in the presence
of a Department-approved monitor who was not mother, and (2) placed the oldest child in
danger by permitting him to ride in father’s car without a car seat. The court sustained
the allegations on July 30, 2014, ordered that the children would remain placed with their
maternal grandmother, and mother’s visits could be monitored by maternal grandmother,
but mother was not permitted to remain in the home with the children overnight.
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According to the Department reports, Mother repeatedly said she would enroll in
services, but either did not enroll or attended inconsistently. On February 17, 2015, the
Department investigated a report that mother and maternal grandmother were hitting and
cursing at the children, and mother was driving the children without car seats. The
reporting party also claimed that maternal uncle smoked marijuana around the children.
A Department social worker visited the address, and concluded the allegations were
substantiated, because when she arrived at the home at 12:15 a.m., maternal grandmother
was home, but the children were not. The social worker discovered that mother had
taken the children to McDonald’s. The social worker explained to both mother and
maternal grandmother that they had violated the court’s order requiring monitored visits
for mother and detained the children, who were dirty, smelly, and asleep in a car that
smelled of marijuana. Once again, the oldest child was not in a car seat. The children
were immediately removed from maternal grandmother’s custody and placed in foster
care based on a February 23, 2015, supplemental petition under section 387, approved by
the court on April 15, 2015. The court terminated mother’s reunification services on
March 4, 2015.
The two older children were initially placed in a different foster home than the
youngest. After the children were placed in foster care, mother visited them consistently
once a week, although she did miss a few visits, left early from some, and arrived late for
others. She would take the children toys, food, shoes, and clothes, and would take them
to the park, where they would play and sing. The foster parents for the older children
reported that the visits went well and the children were happy to see their mother,
although they often would not listen to mother, and mother was unable to redirect them.
The children had a difficult time allowing mother to leave, and a foster parent reported
that on one occasion, the oldest ran into mother’s car and when the foster parent went to
the car to get the child, the car reeked of marijuana. Both sets of foster parents reported
that the children knew curse words and the oldest would act aggressively towards his
younger sister, saying “Te voy a dar con el cinto,” which meant “I’m going to hit you
with a belt.” When the foster mother asked him why he said that, he said he had seen
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father hit mother with a belt. He was also observed grabbing his younger sister and
trying to pull her hair, saying he had seen father do that to his mother. Mother denied
father had ever pulled her hair.
The two older children were reunited with their youngest sibling in early August
2015, in part because the youngest sibling’s foster mother expressed a desire to adopt all
three children. The three children were doing well in their foster placement, and the
Department recommended that the court terminate the parental rights of both parents and
select a permanent plan of adoption by the foster parent.
On August 10, 2015, mother enrolled in individual counseling. She completed a
13-week domestic violence class on August 12, 2015. On August 19, 2015, mother filed
a petition under section 388, seeking a change to the court’s order terminating mother’s
reunification services. Mother asked the court to place the children with her or
alternatively, to reinstate family reunification services. The court denied mother’s
petition without a hearing.
A “Last Minute Information” report dated August 24, 2015, stated that the foster
mother had called mother’s phone number because the children wanted to speak with her,
and a man answered the phone. The oldest child recognized the man’s voice as his
father’s, and the man hung up when the child said “That’s my dad.” The mother
immediately called foster mother stating her phone broke and she no longer had the other
number. She later claimed that the child had heard a male voice because the call had
gone to voice mail.
On August 24, 2015, the court held a selection and implementation hearing under
section 366.26. The court admitted several Department reports into evidence, and heard
testimony from mother. Minors’ counsel pointed out that while mother’s visits are
enjoyable to the children, she has not played a parental role for 14 months, and the
children deserved permanency and stability. Minors’ counsel asked the court to
terminate parental rights. Father’s counsel questioned why the Department was in a
hurry to achieve permanency, and asked the court to consider legal guardianship rather
than adoption. Mother’s counsel joined the arguments made by father’s counsel, and
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argued that while mother was not perfect, the children had a substantial bond with her,
and asked the court to find that the parental relationship exception applied, and that legal
guardianship was more appropriate than adoption. Counsel for the Department argued
that the mother had violated court orders multiple times, and that the benefit of
permanency outweighed the children’s bond with mother.
The court acknowledged the bond between children and their mother, but noted
that she was just starting on complying with the case plan. It terminated mother’s
parental rights, finding no exception to adoption applicable.
DISCUSSION
388 Petition
Mother contends the lower court erroneously denied her August 19, 2015 section
388 petition without a hearing. We disagree.
“We review the juvenile court’s denial of a section 388 petition for an abuse of
discretion. [Citation.]” (In re Mickel O. (2011) 197 Cal. App. 4th 586, 616.) The court
abuses its discretion when a decision is arbitrary, capricious, or patently absurd or
exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal. 4th 295, 318-319.)
“When two or more inferences can reasonably be deduced from the facts, the reviewing
court has no authority to substitute its decision for that of the trial court.” (Shamblin v.
Brattain (1988) 44 Cal. 3d 474, 478-479.)
“A juvenile court order may be changed, modified or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new evidence or
changed circumstances exist and (2) the proposed change would promote the best
interests of the child. [Citation.] A parent need only make a prima facie showing of
these elements to trigger the right to a hearing on a section 388 petition and the petition
should be liberally construed in favor of granting a hearing to consider the parent’s
request. [Citation.] [¶] However, if the liberally construed allegations of the petition do
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not make a prima facie showing of changed circumstances and that the proposed change
would promote the best interests of the child, the court need not order a hearing on the
petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if
supported by evidence given credit at the hearing, would sustain a favorable decision on
the petition. [Citation.]” (In re Zachary G. (1999) 77 Cal. App. 4th 799, 806, italics
added.)
The juvenile court may consider the entire factual and procedural history of the
case in deciding whether to grant a hearing on a petition under section 388. (In re Justice
P. (2004) 123 Cal. App. 4th 181, 188-189.) The asserted change in circumstances “must
be of such significant nature that it requires a setting aside or modification of the
challenged order.” (In re A.A. (2012) 203 Cal. App. 4th 597, 612.) In determining
whether a change in placement is warranted, the court may consider factors such as the
seriousness of the reason leading to the child’s removal, the reason the problem was not
resolved, the passage of time since the child’s removal, the relative strength of the bonds
with the child, the nature of the change of circumstance, and the reason the change was
not made sooner. (In re Aaliyah R. (2006) 136 Cal. App. 4th 437, 446-447.) In assessing
the best interests of the child, “a primary consideration . . . is the goal of assuring stability
and continuity.” (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Liberally construing mother’s petition, the court did not abuse its discretion in
concluding that mother had not made a prima facie case warranting a hearing, when her
assertions were considered in the context of the entire case. The dependency proceeding
began in May 2013 when two of mother’s children were younger than two years old, and
she was pregnant with her third child. For over two years, mother failed to enroll in
individual counseling or complete a domestic violence program. During that time,
mother violated the restraining order against father, and then violated the court’s order
requiring maternal grandmother to monitor mother’s visits with the children. Mother
twice admitted to transporting her oldest child without a car seat, the second time in a car
that two social workers confirmed smelled so strongly of marijuana that either someone
had been smoking or there was marijuana in the car. Her two younger children were also
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asleep in the car that smelled of marijuana. In early 2015, mother had multiple
conversations with Department social workers where she said she would enroll in
services, but then failed to do so. The children were placed in foster care in February
2015, and mother’s reunification services were terminated in March 2015. The only
“change” identified in mother’s August 2015 petition was the fact that she had completed
her domestic violence program and started individual therapy, the same reunification
services the court had ordered two years earlier in 2013. The lower court did not abuse
its discretion in concluding that such belated compliance did not constitute a change of a
sufficiently significant nature that it required setting aside the court’s order terminating
services or placing the children in foster care. (In re A.A., supra, 203 Cal.App.4th at
p. 612.)
The only reason mother proffered for why a change to the court’s orders would be
in her children’s best interests was that the children were attached to her, she had visited
them consistently, and she was “willing to do what it takes to help them and protect
them.” Mother offers no evidence that delaying the adoption of her three young children
to give her additional time to complete her reunification services would be in their best
interests, particularly in light of the fact that they are currently placed in the home of the
foster parent who is both willing and interested in adopting all three of them. Mother’s
petition does not meet the prima facie requirements for the two showings required under
section 388.
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Parental Relationship Exception
Mother contends the dependency court erred when it found the parental
relationship exception under section 366.26, subdivision (c)(1)(B)(i) inapplicable, and
seeks reversal of the order terminating her parental rights. We find no error.
We assess whether the court’s order on the parental relationship exception is
supported by substantial evidence.4 (In re G.B. (2014) 227 Cal. App. 4th 1147, 1166.) If
supported by substantial evidence, the finding here must be upheld, even though
substantial evidence may also exist that would support a contrary result and the
dependency court might have reached a different conclusion had it determined the facts
and weighed credibility differently. (In re Dakota H. (2005) 132 Cal. App. 4th 212, 228.)
“We do not reweigh the evidence or exercise independent judgment, but merely
determine if there are sufficient facts to support the findings of the trial court.
[Citations.]” (In re Matthew S. (1988) 201 Cal. App. 3d 315, 321.)
Under section 366.26, subdivision (c)(1)(B)(i), if the dependency court terminates
reunification services and finds the child is adoptable, it must terminate parental rights
unless it “finds a compelling reason for determining that termination would be
detrimental to the child due to [the circumstance that the parent has] [¶] . . . maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.”
4 “[S]ome courts have applied different standards of review. (In re K.P. [(2012)]
203 Cal.App.4th [614,] 621-622 [question of whether beneficial parental relationship
exists is reviewed for substantial evidence, whereas question of whether relationship
provides compelling reason for applying exception is reviewed for abuse of discretion];
In re C.B. (2010) 190 Cal. App. 4th 102, 122-123 [abuse of discretion standard governs
review, but ‘pure’ factual findings reviewed for substantial evidence]; In re Jasmine D.
(2000) 78 Cal. App. 4th 1339, 1351 [applying abuse of discretion standard].) On the
record before us, we would affirm under either of these standards. (E.g., Jasmine D., at
p. 1351 [practical differences between substantial evidence and abuse of discretion
standards are minor].)” (In re G.B. (2014) 227 Cal. App. 4th 1147, 1166, fn. 7.)
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Although mother maintained consistent visitation with her children, there is
substantial evidence to support a finding that the second prong of the exception was not
satisfied. The parental relationship exception “does not permit a parent who has failed to
reunify with an adoptable child to derail an adoption merely by showing the child would
derive some benefit from continuing a relationship maintained during periods of
visitation with the parent.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) “A
parent must show more than frequent and loving contact or pleasant visits. [Citation.]
‘Interaction between natural parent and child will always confer some incidental benefit
to the child. . . .’ [Citation.] The parent must show he or she occupies a parental role in
the child’s life, resulting in a significant, positive, emotional attachment between child
and parent. [Citations.] Further, to establish the section 366.26, subdivision (c)(1)(B)(i)
exception the parent must show the child would suffer detriment if his or her relationship
with the parent were terminated. [Citation.]” (In re C.F. (2011) 193 Cal. App. 4th 549,
555, fn. omitted.) “The significant attachment from child to parent results from the
adult’s attention to the child’s needs for physical care, nourishment, comfort, affection
and stimulation. [Citation.]” (In re Autumn H. (1994) 27 Cal. App. 4th 567, 575.)
Mother’s relationship with her three children did not promote their well-being “‘to
such a degree as to outweigh the well-being the child[ren] would gain in a permanent
home with new, adoptive parents.’” (In re Brandon C. (1999) 71 Cal. App. 4th 1530,
1534; accord, In re Jasmine D., supra, 78 Cal.App.4th at pp. 1347-1350.) The children
were poorly behaved and used curse words when they were first placed in foster care.
Even the youngest, who was only one year old at the time, used curse words, and the
older ones would swear, displayed aggressive behavior, and would not listen to
directions. During visits with mother, there were times when mother would arrive late or
leave early, and other times when mother was not engaged with the children or they
would not follow her directions. More significantly, mother’s actions during the course
of this case, from accepting a ride from father despite having a restraining order against
him, to taking the children to McDonald’s in violation of the court’s order requiring
monitored visits, and then returning in a car with a strong marijuana odor, provide
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evidence to support the court’s finding that termination of mother’s parental rights would
not be detrimental to the children. We do not second-guess the dependency court’s
finding that the benefit of permanency outweighs any possible benefit of legally
preserving the relationship between mother and her children. The court’s determination
the parental relationship exception does not apply in this case is supported by substantial
evidence.
DISPOSITION
The order denying mother’s petition under section 388 and the order terminating
mother’s parental rights are affirmed.
KRIEGLER, Acting P. J.
We concur:
BAKER, J.
KUMAR, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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