In re A.A. CA4/1 ( 2021 )

Filed 3/23/21 In re A.A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.A., a Person Coming Under
the Juvenile Court Law.
D078177
IMPERIAL COUNTY
DEPARTMENT OF SOCIAL
SERVICES, (Imperial County Super. Ct. No.
JJP03754)
Plaintiff and Respondent,
v.
V.A.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County,
William D. Lehman, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of County Counsel and Kelly Ranasinghe, for Plaintiff and
Respondent.
V.A. (Mother) appeals from a combined hearing on (1) her petition filed
under Welfare and Institutions Code section 3881 and (2) selection and
implementation under section 366.26. Mother contends the juvenile court
erred in denying her petition that requested the return of her daughter, A.A.
to her custody. Mother further challenges the court’s order terminating
parental rights and selecting adoption as A.A.’s permanent plan, arguing that
the sibling relationship exception to termination of parental rights applied
(§ 366.26, subd. (c)(1)(B)(v)). We conclude the juvenile court did not err on
any asserted ground and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In response to a child welfare referral, the Imperial County
Department of Social Services (Department) began an investigation of
22-month-old A.A. and her five-year-old half brother.2 The half brother lived
with his father on weekdays and with Mother and A.A. on weekends. The
half brother disclosed to investigators that Mother smoked a substance out of
a pipe in the children’s presence; she failed to prepare food for him, and he
was hungry in her home; Mother did not do any cleaning; and she fell asleep
during the day, leaving him unsupervised and having to care for his little half
sister. The half brother also told the Department that Mother recently tried
to “yank” him out of a moving vehicle while she was carrying A.A., Mother
once tried to hit his father, and he had seen A.A.’s father (Father) hit Mother
before in the nose.
1 Further unspecified statutory references are to the Welfare and
Institutions Code.
2 Mother’s appeal relates only to A.A., and our discussion of other
children is accordingly limited.
2
When questioned by Department personnel, Mother admitted that she
(1) used methamphetamine “ ‘on and off’ ” for the past three years, including
within the last month3; (2) smoked marijuana “ ‘every other day’ ”; and (3)
she knowingly used these drugs while pregnant. She was then 23 weeks
pregnant. Mother acknowledged a history of domestic violence in her past
relationship with her son’s father. She further admitted that Father was a
methamphetamine user and that he sometimes visited the home on
weekends. Father was homeless, and his current whereabouts were
unknown.
First Detention and Removal
In April 2017, the Department took the children into protective custody
and filed petitions on their behalf based on a substantial risk of serious
physical harm from Mother’s drug use and domestic violence as well as
Father’s failure to provide support (§ 300, subd. (b)(1) & (g)). Mother pleaded
no contest to the petition’s allegations. The court found the allegations true,
declared the children to be dependents, removed A.A. from parental custody,
and ordered reunification services for Mother. A.A. was placed in foster care.
The half brother was placed with his nonoffending father, who was given sole
legal and physical custody over the child, and the court terminated its
jurisdiction over the half brother.
Over the next six months, Mother made little or no progress on her case
plan. In June 2017, she gave birth to a baby girl (sibling). In August,
September, and October, Mother tested positive for illicit drugs. In December
3 Mother later admitted to social workers that she smoked and snorted
methamphetamine “regularly,” “a lot,” and “everywhere,” from 2014 to 2017.
3
2017, she entered an inpatient drug treatment program. The court continued
Mother’s reunification services for another six months.
In March 2018, Mother completed her inpatient drug treatment
program and transitioned to a sober living home. She was also having
positive supervised visits with A.A. every other week. Mother subsequently
had another positive test for methamphetamines and admitted she had
recently associated with a drug user. The Department was also concerned
that Mother was continuing to maintain contact with Father, who was
untreated and absent from the dependency proceedings.
By the 12-month review hearing in late April 2018, the Department
believed that Mother had made adequate progress in her case plan and
accordingly requested discretion to return A.A. to Mother’s custody under a
family maintenance plan. Mother continued to live in a sober living home,
was returning negative drug tests, participated in services, and obtained a
job. The juvenile court granted the Department’s request, and A.A. was
returned to Mother’s care.
For about the next seven months, A.A. and her sibling lived with
Mother until four-year-old A.A. was ultimately removed from Mother’s
custody, again. Various troubling events transpired. While living with
Mother, A.A. tested positive for methamphetamines twice, in August and
September 2018, after Mother allowed A.A. to be cared for by drug-using
relatives. The Department also discovered that Mother allowed Father, who
was another known drug user, to visit the family twice at her apartment.
Mother only admitted to Father’s visits when the Department confronted her
with her own dated social media posts containing pictures of him in her
apartment. By October, Mother was using marijuana again. Then, in
November, Mother invited yet another known drug user to her home so that
4
he would supply her with marijuana. This drug supplier did not bring the
requested marijuana, but instead, compelled her to smoke methamphetamine
with him four times and then raped her, all while her young children were
unsupervised in a different room.
When social workers visited Mother’s home after the November
incident, they found marijuana and related paraphernalia in a location of the
home that could be accessed by the children.
Second Detention and Removal
In late November 2018, the Department petitioned under section 387 to
remove A.A. from Mother’s care. The juvenile court detained the child out of
the home. In early December 2018, A.A. was placed with a nonrelative
extended family member (NREFM), Monica, where she would continuously
reside thereafter. Monica was the girlfriend/fiancée of Mother’s cousin.
A.A.’s sibling was placed with Monica as well.
The Department’s section 387 and disposition reports recommended
that the court make a true finding on the supplemental petition, remove A.A.
from parental care, terminate Mother’s services, and schedule a selection and
implementation hearing under section 366.26. After A.A.’s second detention,
Mother continued to test positive for methamphetamines, amphetamines,
and marijuana. At the hearing on the section 387 allegations in March 2019,
Mother admitted that she had experienced a drug relapse and submitted to
the court’s jurisdiction. The court found that its prior disposition had been
ineffective in the protection of A.A. At the dispositional hearing in July 2019,
the court removed A.A. from Mother’s care, terminated services, and
scheduled a section 366.26 hearing.
5
After the dispositional hearing, Mother entered KIVA, a residential
drug treatment program. She completed the program and certain parenting
classes by October 2019 and relocated to a sober living home.
Mother’s Section 388 Petition
In November 2019, Mother petitioned under section 388 for return of
A.A. and the sibling to her care.4 As changed circumstances, Mother alleged
she had been diagnosed with schizophrenia and bipolar disorder and was
compliant with taking medication, she was continuing drug treatment, and
continuing to produce negative drug tests. Mother asserted it was in the
children’s best interests to return to her care because she was “their mother”
and she had “demonstrated a positive effort by entering a residential [drug
treatment] program to ensure the safe return of her children.”
The Department’s reports consistently noted that A.A. was doing well
in her placement. A.A. became fully toilet trained. Her communication skills
gradually improved though she still needed speech services. She attended
preschool and received appropriate services for behavioral issues. A.A. was
diagnosed with autism and began seeing a psychologist. In January 2020,
the Department reported that A.A. was thriving in Monica’s home. A.A. was
strongly bonded to Monica, who, together with Mother’s cousin, were
prepared to adopt A.A.5
4 As the juvenile court and parties were aware, the sibling’s case was in a
different stage than A.A.’s case. When she filed her section 388 petition,
Mother was still in the reunification phase with the sibling, while A.A. was in
the permanency planning phase.
5 The Department noted, in one line of its report, that Monica was
concerned over A.A. being separated from her two-year-old sibling “as the
bond between the two is strong.” There is no elaboration on this sentiment.
There are also no descriptions in the record about interactions between the
6
The Department prepared a report in response to Mother’s section 388
petition, commending her positive life changes but noting various
circumstances still in flux. The Department did not believe returning A.A. to
Mother would be in the child’s best interests.
The Department additionally filed its section 366.26 report,
recommending termination of parental rights and adoption as A.A.’s
permanent plan. Although Mother had supervised visits with A.A. every
other week, the child was very strongly bonded to Monica, who she called
“mom” and who had been A.A.’s caregiver for 14 months by then. Monica was
meeting all of A.A.’s needs and was committed to adopting her.
Subsequently in 2020, Mother moved to transitional housing and then,
around June, into her brother’s house. After a few weeks at her brother’s
house, Mother relocated to a sober living home. The assigned social worker
reported that Mother was regularly visiting with A.A., and during the
COVID-19 pandemic, was having video calls with her. A.A. was continuing to
do “exceptionally well” in her placement with Monica.
For various reasons, including the pandemic, the contested hearing on
Mother’s section 388 petition was continued several times and finally held in
combination with the section 366.26 hearing.
Contested Sections 388 and 366.26 Hearing
At the combined section 388 and 366.26 hearing in October 2020, the
court received in evidence, without objection, numerous Department reports
and the section 388 petition. In addition, the court heard testimony from
Mother, her sober living house manager, and social workers Luis Castro and
Julietta Figueroa.
two children. In contrast, the Department’s reports discuss in significant
detail how A.A.’s primary attachment was to Monica.
7
Mother testified that she had completed her services except for a 52-
week domestic violence and anger management course, for which she had
taken about 20 of the 52 required classes. Mother was then residing in a
sober living house. She admitted that she had been addicted to
methamphetamine but had been “clean” since April 2019. According to
Mother, the children could temporarily stay with her at the sober living
facility while she transitioned to her own apartment.6 She was also working
at a gas station as a cashier. Due to COVID-19 restrictions, Mother was
currently visiting with A.A. about once monthly in person, and they had
weekly video calls. On cross-examination, Mother agreed that she and
Father had had a domestically violent relationship. She also acknowledged
that five-year-old A.A. had been placed with her cousin’s girlfriend (Monica)
for almost two years by then. Mother had not had any overnight visits with
A.A. and had no specific training on how to care for an autistic child.
The sober living house manager testified that Mother complied with all
the house rules, including clean drug tests. The manager further stated that
accommodating children in the sober living home was not guaranteed but
done on a “case-by-case basis.” In the manager’s experience, the homeowners
tried to assist deserving women in the short term, keeping in mind space and
other limitations.
6 On direct examination, Mother testified that the children could move in
with her at the sober living facility. However, on cross-examination, Mother
clarified that the sober living facility was primarily for adult women, but it
could accommodate overnight visits with the children while she transitioned
to an apartment.
8
Supervising social worker Castro explained the reasonableness of the
Department’s requiring Mother to complete a domestic violence and anger
management course, considering the protective issues.
Social worker Figueroa testified that Mother’s uncompleted course was
one on interpersonal violence from the victim’s perspective. The social
worker was concerned about Mother’s initial delays in starting, and
resistance to, the program. Mother had experienced incidents of domestic
and sexual violence in her life, which in the past, triggered drug use and
relapses. If Mother did not learn the appropriate methods of handling these
stressful events, Figueroa believed there was a continuing risk of harm to the
children.
The parties’ counsel made closing arguments. To support her
argument that A.A. should be returned to Mother’s care, Mother’s counsel
focused on Mother’s bond with A.A. and Mother’s near completion of, and
expressed intent to complete, all her services. Counsel for A.A. and the
sibling (minors’ counsel) was opposed to placing the siblings separately.
Minors’ counsel believed it was in the children’s best interests to return to
Mother’s care together. No party addressed or argued for application of the
sibling relationship exception to termination of parental rights.
After considering the evidence and arguments of counsel, the juvenile
court declined to return A.A. to Mother’s care, found A.A. adoptable,
terminated Mother’s parental rights, and ordered a permanent plan of
adoption. The court prefaced its comments by stating, “I don’t think there’s
been any evidence presented of the nature of the relationship between [the
sibling] and [A.A.].” The court was satisfied that Mother’s circumstances had
changed, but found it was not in A.A.’s best interests to be moved from her
stable placement. Noting that A.A. may have “some bond” with Mother, the
9
court decided that the child had a far stronger bond with Monica, and that, in
considering A.A.’s need for permanence and stability, it was in her best
interests to remain in the home where she had been thriving for the past two
years. Regarding the sibling, the court found no substantial risk of detriment
in returning her to Mother’s care and accordingly did so under a family
maintenance plan.
Mother’s appeal relating to A.A. followed.
DISCUSSION
I. Section 388 Petition
A. Legal Principles and Standard of Review
At a hearing on a section 388 petition seeking to change a child’s
placement, the moving party must show a change of circumstances or new
evidence and that the change in placement is in the child’s best interests.
(§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
We review the juvenile court’s ruling on a section 388 petition for abuse
of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) Reversal is
appropriate only if we find the court has made an arbitrary, capricious, or
patently absurd determination. (Ibid.) We do not inquire whether
substantial evidence would have supported a different order, nor do we
reweigh the evidence and substitute our judgment for that of the lower court.
(Id. at pp. 318-319.) We ask only whether the court abused its discretion
with respect to the order it actually made. (In re M.H. (2018) 21 Cal.App.5th
1296, 1305 [“The trial court’s determination that the proposed change in
placement was not in the child’s best interest will not be disturbed unless an
abuse of discretion is clearly established.”]; In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1351.)
10
After reunification efforts have terminated, the juvenile court’s focus
shifts from family reunification toward promoting the child’s needs for
permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “ ‘A
court hearing a motion for change of placement at this stage of the
proceedings must recognize this shift of focus in determining the ultimate
question before it, that is, the best interests of the child.’ ” (In re J.C. (2014)
226 Cal.App.4th 503, 527 (J.C.).) Therefore, “after reunification services
have terminated, a parent’s petition for either an order returning custody or
reopening reunification efforts must establish how such a change will
advance the child’s need for permanency and stability.” (Ibid.)
B. Analysis
Applying the foregoing principles, we conclude the court did not abuse
its discretion in finding that A.A.’s continued placement with, and adoption
by, Monica would provide the child with the permanency and stability that
was in her best interests. Mother’s change of circumstances is essentially
undisputed on appeal—she maintained sobriety for 18 months and alleviated
the protective issues to the point where the three-year-old sibling could be
returned to her care. The court found, however, an insufficient showing that
returning A.A. to Mother would be in A.A.’s best interests.
Mother acknowledges she had very serious parenting and protective
issues when the case began and for a significant period thereafter. During
that time, A.A. was moved through multiple placements. After A.A.’s first
detention, Mother participated in drug treatment programs, including a
residential treatment program, which proved unsuccessful. She remained
unprotective of her children—three-year-old A.A. tested positive, twice, for
methamphetamines while in Mother’s care; was exposed to multiple known
drug users; and was left unsupervised. After A.A.’s second detention, Mother
11
relapsed on drugs. She required a second residential drug treatment
program. Mother had not yet completed her classes on interpersonal violence
by the time of hearing, which was not ideal. Further, between 2019 and
2020, Mother’s housing situation was in a state of flux; she moved in and out
of treatment programs, sober living homes, and a family member’s home.
She was on the verge of moving again and had not yet had overnight visits
with the children. Although Mother was making positive changes in her life,
she still had uncertain times ahead of her.
By contrast to the instability A.A. experienced in Mother’s care, she
was thriving in the care of NREFM Monica. A.A. was only five years old, and
Monica fulfilled a parental role in her life for almost two of those five years.
Monica cared for A.A. on a daily basis, meeting all her needs. A.A. was
strongly bonded to Monica, who was also well acquainted with Mother and
other family members. A.A. is a child with special needs, being autistic and
having speech impairments. The importance of keeping her in a steady
placement, with consistent access to services and special education, cannot be
overstated.
Mother points to her visits with A.A. as a reason why the child should
have been returned to her care. However, the juvenile court explicitly
reflected on this factor and noted that A.A. was more strongly bonded to
Monica. Substantial evidence supports the court’s determination. A.A. had
sought out Monica as her “mom” for the last two years, during a time when
A.A. could better communicate, socialize, and form memories. (Cf. In re
Autumn H. (1994) 27 Cal.App.4th 567, 575 [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, typically arising from
day-to-day interaction, companionship and shared experiences].)
12
Mother also argues that A.A.’s need for permanency and stability would
be enhanced by being placed with her sibling. Like the juvenile court, we
note that the record contains very little information regarding the nature of
the relationship between A.A. and her sibling. We know their ages (five and
three years old) and that they lived together for about the last two and
a half years. Assuming the sisters had a loving relationship, on the record
before us we have no reason to believe that their relationship will cease.
Mother recommended the children’s placement with Monica, and Monica is
an NREFM. Given their family connection, we may reasonably infer that the
children will continue seeing each other, perhaps quite frequently, and that
both young children will be relatively unaffected by being separately placed.
For a related discussion of the sibling relationship exception to termination of
parental rights, see section II., post.
Moreover, minors’ counsel argued at trial for joint return of the siblings
to Mother’s care. The juvenile court considered the separation issue, and on
balance, believed it was in A.A.’s best interests to remain in her safe, stable
placement. We are satisfied the court properly considered that A.A.’s and the
sibling’s cases were in different stages. Mother’s reunification efforts with
the sibling were still underway, and of course, could ultimately fail. A.A.’s
primary attachment was to her caregiver Monica. Mother has not
established that the court abused its discretion in deciding that it was in
A.A.’s best interests to remain in Monica’s care under a plan of adoption.
(J.C., supra, 226 Cal.App.4th at p. 526 [after termination of reunification
services, court must shift its focus to the needs of the child for permanency
and stability].)
13
II. Sibling Relationship Exception
Mother argues that the juvenile court erred in selecting adoption as
A.A.’s permanent plan because the sibling relationship exception to
termination of parental rights (§ 366.26, subd. (c)(1)(B)(v)) applied. The
Department responds that Mother presented no evidence that adoption will
cause a substantial interference in the sibling relationship. We agree with
the Department.
A. Legal Principles
If a juvenile court finds that a child is likely to be adopted, adoption
must be ordered unless there is a “compelling reason” to apply one of the
statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).) One exception
is based on a sibling relationship, which may apply when, “[t]here would be
substantial interference with a child’s sibling relationship, taking into
consideration the nature and extent of the relationship, including, but not
limited to, whether the child was raised with a sibling in the same home,
whether the child shared significant common experiences or has existing
close and strong bonds with a sibling, and whether ongoing contact is in the
child’s best interest, including the child’s long-term emotional interest, as
compared to the benefit of legal permanence through adoption.” (§ 366.26,
subd. (c)(1)(B)(v).)
Employing a two-step process, the juvenile court first determines
whether terminating parental rights would substantially interfere with the
sibling relationship. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952 (L.Y.L.).)
If this first requirement is met, “the court is then directed to weigh the child’s
best interest in continuing that sibling relationship against the benefit the
child would receive by the permanency of adoption.” (Ibid.; § 366.26,
subd. (c)(1)(B)(v).)
14
The parent opposing adoption has the burden of proving the statutory
exception for sibling relationships applies. (In re Daniel H. (2002)
99 Cal.App.4th 804, 813.) This is considered “a heavy burden.” (Ibid.) The
authors of the legislation adding the sibling relationship exception envisioned
that its applicability would “ ‘likely be rare,’ ” meaning “that the child’s
relationship with his or her siblings would rarely be sufficiently strong to
outweigh the benefits of adoption.” (L.Y.L., supra, 101 Cal.App.4th at p. 950.)
We review the court’s factual findings underlying the sibling
relationship exception for substantial evidence. (In re Isaiah S. (2016)
5 Cal.App.5th 428, 438; In re D.O. (2016) 247 Cal.App.4th 166, 174 (D.O.).)
B. Analysis
Based on our review of the record, Mother did not argue for application
of the sibling relationship exception to termination of parental rights at trial.
The issue of separately placed siblings was only raised by minors’ counsel in
the context of Mother’s section 388 petition. As to that issue, the juvenile
court remarked, “I don’t think there’s been any evidence presented of the
nature of the relationship between [the sibling] and [A.A.].” The same
evidence (or lack thereof) underlies both the section 388 and section 366.26
issues. In any event, we agree with the Department’s position that Mother
has not met her burden of proving that the statutory exception applies.
“To show a substantial interference with a sibling relationship the
parent must show the existence of a significant sibling relationship, the
severance of which would be detrimental to the child. Many siblings have a
relationship with each other, but would not suffer detriment if that
relationship ended. If the relationship is not sufficiently significant to cause
detriment on termination, there is no substantial interference with that
relationship.” (L.Y.L., supra, 101 Cal.App.4th at p. 952.) Here, there is no
15
substantial evidence in the record that terminating parental rights will
substantially interfere with the sibling relationship or that severing A.A.’s
relationship with her sibling will cause detriment.
Mother argues that a substantial interference is “assured” due to the
sibling’s placement with Mother while A.A. remains placed with Monica. We
cannot speculate or assume that there will be a substantial interference in the
relationship. (D.O., supra, 247 Cal.App.4th at p. 176 [reiterating that it is
appellant’s burden to establish a substantial interference, not the child
welfare agency’s burden to prove there is not].) A.A. may still see her sibling
very frequently. Mother admits that A.A. regularly visited her sibling when
she was placed in foster care and the children’s bond continued to develop
during that time. We must assume those circumstances will continue. Thus,
the court did not err in terminating parental rights and ordering a plan of
adoption.7
7 Since Mother did not establish that terminating parental rights will
substantially interfere with the sibling relationship, we have no need to
address whether the child’s relationship with her sibling was strong enough
to outweigh the benefits of adoption.
16
DISPOSITION
The orders denying Mother’s Welfare and Institutions Code section 388
petition and terminating parental rights are affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
GUERRERO, J.
17