In re Raymond R. CA2/1 ( 2014 )

Filed 5/15/14 In re Raymond R. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re RAYMOND R. et al., Persons B248833, B250439
Coming Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK72880)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ANITA C. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles County. Amy M.
Pellman, Judge. Affirmed.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant Anita C.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and
Appellant Steve R.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.
______________________________
The juvenile court adjudged minors Raymond R., born in 2001, and Michael R.,
born in 2005, dependents of the court pursuant to Welfare and Institutions Code
section 300, subdivision (b) (failure to protect) and terminated the parental rights of Anita
C. (Mother) and Steven R. (Father).1 Mother and Father appeal from the court’s orders
(1) denying without a hearing Mother’s second and third section 388 petitions for
modification of orders, in which she requested the minors be returned to her care,
(2) granting the minors’ section 388 petition for modification of an order by changing
Father’s visits from unmonitored to monitored visits, (3) finding the minors specifically
adoptable, and (4) finding inapplicable the beneficial parental bond exception to the
termination of parental rights. They join in each other’s arguments to the extent the
other’s arguments benefit him or her.2
We conclude that (1) because Mother showed, at most, changing but not changed
circumstances and failed to show the proposed change of order would promote the best
interests of the minors, the juvenile court did not abuse its discretion when it summarily
denied the challenged section 388 petitions without a hearing, (2) because the minors had
special needs, including Raymond’s fetal alcohol syndrome diagnosis, which condition
Father failed to understand and was unable to handle properly, the court did not abuse its
discretion in granting the minors’ section 388 petition for modification limiting Father’s
visits to monitored visits, (3) because a relative was willing to adopt the minors and it
was likely the minors would be adopted within a reasonable time, the evidence supported
the court’s finding the minors were specifically adoptable, and (4) because Mother and
Father did not occupy a parental role to the minors, who had established a close bond
with the relative who wished to adopt them, the evidence supported the court’s finding
inapplicable the beneficial parental bond exception to the termination of parental rights.
We affirm the orders.
1 Undesignated statutory references are to the Welfare and Institutions Code.
2On November 25, 2013, we ordered consolidation of B248833 and B250439 for
purposes of briefing, oral argument, and decision.
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BACKGROUND
The family involved in this case faces very serious challenges. Raymond R. was
born in 2001 with fetal alcohol syndrome. Raymond also has been diagnosed with
mental retardation. His brother Michael has other special needs. Mother has a history of
severe alcoholism and has been diagnosed with bipolar disorder. Father also has various
limitations.
A. The detention report
On November 4, 2010, the Department of Children and Family Services (DCFS)
reported the following in connection with a detention hearing before the juvenile court to
determine whether the minors should be removed immediately from the care of Father,
who had sole legal custody of the children at that time.
Mother and Father had a long history of referrals to DCFS beginning in 2001, the
year of Raymond’s birth. In 2006, a referral for emotional abuse and general neglect by
Mother was substantiated and DCFS filed a petition. On May 7, 2008, DCFS removed
the minors from Mother and Father’s care because Mother abused alcohol, Mother had
been intoxicated while the minors were in her care, and Mother had been verbally and
physically aggressive toward Father. In addition, Father had been aware of Mother’s
alcohol abuse and aggressive behavior, but had not taken sufficient measures to protect
the minors.
On June 19, 2008, the juvenile court ordered DCFS to provide family maintenance
services to Father and family reunification services to Mother, including alcohol and
parenting programs. Mother failed to reunify with the minors and on October 27, 2010,
the court granted Father sole legal and physical custody, with monitored visitation by
Mother. Father was ordered not to be Mother’s monitor. The court then terminated its
jurisdiction over the case.
Two days later, on October 29, 2010, DCFS received an emergency response
referral that alleged drug use by Mother and Father and screaming and cursing by Mother
and Father at each other and at the minors. On November 1, 2010, DCFS interviewed
Raymond and Michael. Raymond stated that Mother had been living with them in the
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family home, he knew Mother was not supposed to be staying in the home, and Mother
and Father drank alcohol. Michael told DCFS that Mother had been staying with them
and had gotten him ready for school that morning without a monitor present. Michael
said Father and Mother had taken Raymond and Michael trick-or-treating without a
monitor.
DCFS also interviewed Father, whose breath had an odor of alcohol. Father
denied Mother had been living with them, but admitted suitcases filled with women’s
clothing in the home belonged to Mother. He stated Mother was homeless and
sometimes took a shower and changed clothes in the home during her monitored visits
with the minors. Father claimed that Steve E., a visitor, was the monitor. Steve E. stated
he had been visiting Father for two days, but did not mention that he had monitored any
visits between Mother and the minors.
Paternal half-sister Shawna R. reported that on several occasions she had gone to
Father’s home and observed Mother sleeping there.
On November 1, 2010, DCFS took Raymond and Michael into protective custody
and placed them with Shawna.
On November 2, 2010, Mother stated the luggage at the family home belonged to
her, denied staying in the family residence, and stated that Steve E. had monitored her
visits. Mother admitted she had abused drugs and alcohol in the past and that she had
been diagnosed with bipolar disorder.
B. The section 300 petition
As of November 4, 2010, Father had sole legal custody of Raymond and Michael.
On that date DCFS filed a petition pursuant to section 300, subdivision (b), on behalf of
both children.
As amended and sustained, paragraph b-1 of the petition alleged under section
300, subdivision (b) that Father had established a detrimental and endangering home
environment for the minors by allowing Mother to spend nights in the minors’ home and
to have unlimited access to the minors in violation of juvenile court orders that Mother
was to have only monitored visits and Father was not to be the monitor.
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As amended and sustained, paragraph b-2 of the petition alleged under section
300, subdivision (b) that Mother had a history of alcohol abuse, which rendered her
incapable of providing the minors with regular care and supervision, Mother had failed to
participate regularly in a juvenile court ordered substance abuse rehabilitation program,
and Mother’s alcohol abuse endangered the minors’ physical and emotional health and
safety and created a detrimental home environment and placed the minors at risk of harm.
As amended and sustained, paragraph b-3 of the petition alleged under section
300, subdivision (b) that Mother suffered from mental and emotional problems, including
bipolar disorder for which Mother was taking medication, which periodically rendered
Mother incapable of providing the minors with regular care and supervision, and
Mother’s mental and emotional problems endangered the minors’ physical and emotional
health and safety and placed them at risk of physical and emotional harm and damage.
C. The detention hearing
On November 4, 2010, the juvenile court ordered the minors detained from
Father’s home and granted monitored visits for Mother once a week and for Father twice
a week. The court ordered family reunification services and individual counseling for
Mother and Father.
D. The jurisdiction/disposition report and adjudication hearing
On November 4, 2010, DCFS reported the following in connection with the
jurisdictional and dispositional hearing, at which the juvenile court determines whether
the minors shall be declared dependents and issues orders for the minors’ care.
With respect to the allegations of the section 300 petition, on November 30, 2010,
Father told DCFS that someone had called in a false report on him. Father could not
remember why the juvenile court had ordered Mother’s visits to be monitored in the
previous dependency matter or why the minors had been detained in the current matter.
Mother reported to DCFS that she had been diagnosed with bipolar disorder. She
admitted having had a drug and alcohol problem. She denied having a current problem
with alcohol, claiming to have had her last drink three years previously.
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During a monitored visit on November 23, 2010, among Mother, Father, the
minors, and Shawna, Mother and Father gave Shawna “very dirty looks” and rolled their
eyes because Shawna did not allow the minors to take home or eat the junk food that
Mother and Father had brought.
Dr. Alfredo Crespo evaluated the minors and Mother. In his evaluation dated
January 21, 2011, Dr. Crespo reported that Raymond had been diagnosed with mental
retardation and was a client of the regional center, which coordinates services for
developmentally disabled clients. Michael had a “known” history of cleft lip and palate
and had been provided with speech therapy through special education services. Raymond
was quiet and difficult to engage verbally, but he was consistently cooperative. Both
minors blamed themselves for being removed from the home. Mother blamed Shawna
for making false allegations of drug and alcohol abuse against Father because “‘she’s
always wanting to hurt him in some way, and this time she accomplished it.’” Mother
claimed she and Father currently did not use drugs or alcohol. Dr. Crespo concluded the
minors were vulnerable “as a result of a history of developmental delays and a pattern of
neglect and marginal living conditions while formerly in the care of their parents.” Dr.
Crespo reported Mother had been unable to meet the needs of the minors as a result of
alcohol abuse and “a likely concomitant mood disorder.” Mother appeared limited in her
ability to meet her own needs. Dr. Crespo recommended the minors remain placed with
Shawna and that Mother be permitted to live with Father, with monitored and
documented visits to the minors to occur at a DCFS office.
At the adjudication hearing on January 25, 2011, Mother and Father signed a
waiver of rights and submitted on the section 300, subdivision (b) petition. The juvenile
court accepted their waivers and sustained the petition as amended.
E. The disposition hearing, reports, and orders
In a last minute information report filed on March 1, 2011, DCFS reported that
Mother and Father had been having appropriate visitation with the minors but continued
to make negative comments about Shawna. Father appeared hung over and red-faced at
visits.
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At the March 1, 2011 continued disposition hearing, the juvenile court declared
the minors dependents of the court and ordered DCFS to provide family reunification
services. The court ordered Mother to participate in individual counseling, conjoint
counseling, alcohol counseling, and random alcohol and drug testing. The court ordered
Father to participate in a psychological evaluation with Dr. Crespo, individual
counseling, conjoint counseling, drug counseling, and random drug testing. The court
further ordered Mother and Father to attend a fetal alcohol and drug support group. The
court granted Mother and Father monitored visits two times a week at the DCFS office.
The court gave DCFS discretion to increase the time and duration of the visits, but
ordered DCFS not to discontinue the monitor.
On April 4, 2011, Dr. Crespo reported to DCFS that he had evaluated Father and
also considered the April 24, 2010 report of Dr. Lyn Laboriel, director of the LAC-USC
Fetal Alcohol Spectrum Disorders Clinic, who had been working with Father and the
minors since 2008. Dr. Laboriel’s report stated that although Father loved the minors, he
lacked the ability to raise the minors and to address their serious special needs, Father
was in denial about Raymond’s fetal alcohol syndrome diagnosis and Michael’s
suspected fetal alcohol syndrome diagnosis, Father had serious cognitive limitations that
made it difficult, if not impossible, for him to understand the minors’ difficulties and to
comply with recommended interventions or follow through with care at home, and Father
had limited problem-solving and planning abilities.
Dr. Crespo reported that, when asked whether Raymond or Michael had any
special needs, Father replied that the minors had been diagnosed with fetal alcohol
syndrome, but “‘every time I argue it, I get yelled at . . . so I keep my mouth shut. I have
my own opinion.” Father believed the boys were “‘normal kids.’”
Dr. Crespo reported that Father was in denial about the minors’ special needs and
that Father blamed reports that he lacked parenting skills on alleged sexual advances
made toward him by an in-home counselor, which had “no basis [in] reality.” Dr. Crespo
concluded the minors would be at risk of neglect if they were returned to Father’s care.
Dr. Crespo stated, “[I]n light of [Mother’s] history of severe alcoholism, and [Father’s]
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various limitations to understand, and accept, the minors Special Needs, neither parent, in
my opinion, are likely to imminently gain sufficient parenting skills to be able to provide
their vulnerable children with the care these children obviously need.”
F. Mother’s first section 388 petition, the hearing on the section 388 petition, and
subsequent reports
On July 15, 2011, Mother filed a section 388 petition requesting that the juvenile
court change its order of monitored visits to unmonitored and overnight visits. The
petition stated that Mother was in full compliance with the case plan, the minors were
bonded to her, and the minors would enjoy more liberal visitation.
Attached to the petition was a letter dated May 17, 2011, from El Centro Del
Pueblo showing Mother had participated in 17 individual counseling sessions since July
2010 and indicating that Mother was beginning to “implement useful tools” and “has
begun to acknowledge responsibility in causing emotional harm to her children [but] still
needs to resolve conflicts of the spouse in order to better parent their children.” Mother
also attached to her petition a letter from the Department of Mental Health dated
February 28, 2011, stating that Mother had begun receiving services on December 24,
2009, had been diagnosed with bipolar disorder, and had been prescribed psychiatric
medication. The petition also included a letter dated June 14, 2011, from El Centro Del
Pueblo, stating that Mother had completed a six-month alcohol and drug program and a
letter dated April 20, 2011, from El Centro Del Pueblo, stating that Mother had been
enrolled in an alcohol and drug outpatient program since November 16, 2010.
On August 26, 2011, DCFS reported that Mother had enrolled in individual
therapy on July 27, 2010, and had attended 17 sessions. By June 14, 2011, Mother had
completed a six-month drug and alcohol program. However, Mother had tested positive
for amphetamines and methamphetamine on May 9, 2011, and for opiates and
hydrocodone on July 20 and August 8, 2011. Mother had been receiving outpatient
services at the Department of Mental Health since December 4, 2009. Mother had not
yet enrolled in a fetal alcohol syndrome support group. Father had enrolled in a drug and
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alcohol program on March 4, 2011, which he completed on September 6, 2011. Father
had not yet enrolled in a fetal alcohol syndrome support group.
On November 7, 2011, DCFS reported that “Mother has tested positive for drugs
three times in the past months and has not completed all of her court ordered programs.
The father has several no-show drug and alcohol, test results in the past months and has
not completed all of his court ordered programs as well.”
The juvenile court denied Mother’s section 388 petition at the November 7, 2011
hearing, but gave DCFS discretion to grant each parent up to two hours of unmonitored
visits with the minors.
According to a DCFS report dated February 28, 2012, Mother and Father began
couples counseling in July 2011, and Mother completed a fetal alcohol syndrome support
group program on December 7, 2011. Mother had continued to drug test randomly, and
the results had been negative for drug use. Mother had not yet completed domestic
violence support group counseling.
Father completed a drug and alcohol program on September 6, 2011, enrolled in
an “aftercare” drug and alcohol program on October 26, 2011, and completed a fetal
alcohol syndrome support group program on November 7, 2011. Father also continued to
submit to random drug testing, with negative results.
The minors continued to do well in Shawna’s home. Their acting out behavior
had decreased significantly. They participated in after school activities such as
basketball, softball, and dance.
At a review hearing on February 28, 2012, the juvenile court found that Mother
and Father had consistently and regularly visited with the minors, had made significant
progress in resolving the problems that had led to the minors’ removal, and had
demonstrated the ability to complete the treatment plan and provide for the minors’
safety, protection, physical and emotional well-being, and special needs. In addition to
monitored visits, the court granted Father two hours of unmonitored visits for the first
two weeks after the hearing, four hours of unmonitored visits for the second two weeks,
six hours of unmonitored visits for the third two weeks, and eight hours of unmonitored
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visits for the fourth two weeks. The court gave DCFS discretion to lift the monitor on
Mother’s visits for two hours per week as long as the minors’ counsel agreed. The court
ordered DCFS to make unannounced visits during Mother’s and Father’s unmonitored
visits with the minors.
In its subsequent report on April 24, 2012, DCFS reported that on February 13,
2012, and February 29, 2012, Mother failed to appear for her drug tests and did not
provide any documentation to explain why she did not appear.
The report also stated that on April 22, 2012, Father became furious and used foul
language when the minors wanted to play with their friends instead of visiting Father at a
park. Raymond told DCFS that he did not want to visit Father because Father was
yelling. Raymond stated that Father had screamed at him on the telephone and then hung
up on him. Raymond reported that he felt a little sad. He stated, “‘I want to live with my
mom and dad but they need more classes and medication pills to calm down.’” Michael
stated that he had not wanted to visit Father because he wanted to go to his friend’s house
and because Father “was angry.” Michael stated he was afraid that Father was going to
use bad words and hit a bus stop sign, like he had previously. Michael stated,
“‘Sometimes I am sad because I want to go with my mom and dad. . . He (father) was
acting bad yesterday. . . Mom and dad were fighting and saying bad words. . . The F-
word and the B-Word. . . If they (Mother and Father) are going to say bad words I would
rather live with Shawna.’”
The report further stated that on April 23, 2012, Mother and Father were asked to
leave a team decision-making meeting (TDM) because they raised their voices in an
aggressive manner and refused to follow directions.
In a last minute information report filed on June 12, 2012, DCFS stated that on
May 31, 2012, the minors were placed in Father’s home for an extended two-week visit
after Shawna’s brother, C.H., accidentally fractured Raymond’s wrist while home from a
college visit and Shawna failed to take Raymond for a follow-up medical appointment for
that injury.
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In a last minute information report filed on June 18, 2012, DCFS reported that on
June 13, 2012, Raymond told DCFS that he wished to live with Shawna because she took
care of him and Michael, he had his own room in her home, he loved Shawna, Shawna
was nicer to him than Father, and “‘[s]ometimes my dad gets mad at me and says bad
words.’” Raymond said Father’s home was too small, he could not play or jump around,
and sometimes he got bored there. Raymond reported Father told Michael that he was
dumb. Raymond told DCFS he wanted to live with Shawna during the week, and then
stay with his parents on the weekends. He said he did not want to hurt Mother’s and
Father’s feelings. Michael told DCFS he wished to live with Shawna because she was
nicer to him and Raymond than Father, Shawna took care of them, and Shawna gave
them healthy things to eat. Michael’s teacher told DCFS that Michael had missed several
homework assignments during the time the minors had their extended visit with Father.
In a report dated September 4, 2012, DCFS reported the minors had been placed
back into Shawna’s home.
Raymond had told his therapist Father had not fed him dinner because he did not
have any money for food. The report also stated that on July 25, 2012, Mother had
enrolled in a drug and alcohol program, but Mother had tested positive for
methamphetamine on August 2, 2012. Mother and Father’s couples therapist reported
Father had no insight into his anger issues and “did not know why” the minors had been
removed from his care. Father did not take responsibility for his actions and blamed “the
system” for his involvement with DCFS and the court. DCFS reported that although
Mother and Father complied with court-ordered programs and services, they had not been
able to manage and control their anger.
On November 14, 2012, the juvenile court found that Mother and Father were not
in compliance with the court’s orders, that return of the minors to their care would create
a substantial risk of detriment to the minors’ physical and emotional well-being, and that
there was no substantial probability that the minors would be returned to Mother and
Father’s care within six months. The court terminated family reunification services, set
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the matter for a section 366.26 hearing to select and implement a permanent plan, and
ordered that Raymond and Michael remain placed in Shawna’s home.
G. Mother’s second section 388 petition
On March 1, 2013, Mother filed a second section 388 petition requesting
modification of the juvenile court’s orders terminating family reunification services and
requiring that the minors remain suitably placed with Shawna. The second section 388
petition requested that the minors be placed with Mother. It stated Mother had continued
to comply with the case plan, Mother had attended individual counseling twice a week
and couples counseling with Father once a week, Mother had enrolled in a drug program
in October 2012, Mother had attended Narcotics Anonymous and Alcoholics Anonymous
meetings, Mother had a sponsor, Mother had tested negative for drugs on 22 occasions
since August 6, 2012, and Mother was compliant with her mental health treatment and
medication. The second section 388 petition urged the modification would be in the
minors’ best interest because Mother showed a commitment to being sober and healthy,
Mother was participating in services to address the case issues, Mother was able to
provide the minors with a safe home, and Mother visited the minors regularly.
In support of her petition, Mother attached a letter dated February 15, 2013, from
an agency called DAZ Foundation that stated that since January 2, 2013, Mother had
attended two individual therapy sessions per week and one conjoint couples therapy
session with Father per week. The letter stated Mother took responsibility for her actions
and during couples counseling, Mother and Father openly discussed their relationship,
roles as parents, and their future.
Mother attached a letter from the Department of Mental Health dated February 21,
2013, that stated Mother had been provided with outpatient mental services since
December 24, 2009, had been diagnosed with bipolar disorder, and had been treated with
medication and case management services. The letter reported Mother had sought
assistance by calling or coming in person to the program.
Mother attached a February 22, 2013 letter from an agency called Plaza
Community Services stating Mother had attended three group sessions and three
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Narcotics Anonymous/Alcoholics Anonymous meetings a week. Mother had one
unexcused no-show for group sessions. The letter advised that Mother also met with her
primary counselor for individual substance abuse counseling once a month and agreed to
submit to random drug testing one time a week. Mother’s expected completion date of
the program was July 25, 2013.
Mother also attached what appears to be a handwritten log by Mother of “phone
visits” by Mother to the minors.
H. The minors’ section 388 petition and subsequent reports
On March 7, 2013, the minors filed a section 388 petition for modification of the
juvenile court’s February 28, 2012 order granting Father unmonitored eight-hour
weekend visits and monitored visits for Mother. The petition requested that the court
order all of Father’s visits to be monitored, or alternatively, that the court order Father’s
weekend visits to take place between 9:00 a.m. and 5:00 p.m. The petition requested that
DCFS or the monitor transport the minors to and from the regularly scheduled monitored
visits during the week. The petition reported that, since the last court hearing, Father
consistently returned the minors to Shawna’s home well after dark, one to two hours late,
and that Mother had verbally attacked Shawna. The petition stated the proposed
modification was in the minors’ best interest because under the proposed modified order,
the minors, “one of whom is medically fragile, will not be exposed to the cold, night air.”
The petition also stated that under the proposed modification, the minors would not be
exposed to confrontations between Mother and Shawna.
Attached to the petition for modification was a declaration from Shawna stating
Father had been permitted 8-hour unmonitored visits which were scheduled on Sundays
from 10:00 a.m. to 6:00 p.m. Father consistently picked the minors up late, often around
11:00 a.m. or noon, and returned them home late, “sometimes as late as 7:45 or 8:00
p.m.” Father kept the minors out well after dark and did not notify Shawna when he was
going to be late. Michael suffered from health problems that were exacerbated by the
cold night air. Shawna’s declaration stated, “[Michael] is particularly prone to ear
infections due to his cleft palate. Father does not own a car, and so the children spend
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most of their visits outside. When Michael is out late into the evening, his health is
jeopardized. Both children are recovering from the flu, and Michael has a cough that I
believe has lasted longer than necessary due to exposure to the cold, night air.”
Shawna’s declaration stated that on January 4, 2013, at a regularly scheduled
monitored visit with Mother and Father, with a DCFS social worker present, Shawna had
asked Father to let her know if he was going to bring the children back late. While the
minors were in Shawna’s car, Mother began to yell at Shawna, insulted her, and criticized
the way she handled the minors. Father remained quiet while Mother yelled at Shawna.
Shawna then terminated the visit and drove the minors home.
Shawna declared she had contacted the DCFS social worker repeatedly regarding
Father’s tardiness. Although the social worker assured Shawna she would speak to
Father, nothing had changed. Further, on February 3, 2013, Father returned the minors
home an hour and 35 minutes late, which was more than an hour after sundown. Michael
continued to suffer from a persistent cough. Shawna stated she had contacted DCFS at
least five times with regard to that incident and Father’s tardiness.
I. The summary denial of Mother’s second section 388 petition
On March 13, 2013, the juvenile court denied Mother’s second section 388
petition without a hearing, stating, “The 388 does not show a change of circumstances
enough to show a warrant for a hearing.” Mother’s counsel argued that the
documentation attached to the petition showed that Mother had been in compliance with
the case plan. In response, the juvenile court stated, “I don’t see visits. I don’t see real
visits. I see somewhat alleged to be phone visits, but I can’t really tell what those are
from your documents, counsel. . . . It doesn’t appear that the Mother has been regularly
visiting with the children, number one. [¶] Number two, it appears that the Mother is
only just starting compliance in January, and that’s what the letters indicate.”
The juvenile court then scheduled an April 4, 2012 hearing date on the minors’
section 388 petition and stated that its tentative decision was to require Father’s visits to
be monitored. Father’s counsel denied that Father returned the minors home late from
visits. Upon Mother’s and Father’s counsels’ request, the court reviewed DCFS’s service
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log but found the entries to be irrelevant. The court ordered Father’s eight-hour
unmonitored visits to be suspended until the hearing on the minors’ section 388 petition.
The court ordered Father to have monitored visits during the week.
J. Mother’s third section 388 petition
On March 29, 2013, Mother filed a third section 388 petition for modification of
the juvenile court’s order terminating family reunification services. The third section 388
petition requested that the court order the minors placed in Mother’s care or, in the
alternative, that the court order unmonitored visits for her. As in her second section 388
petition, the third section 388 petition stated that Mother had continued to comply with
the case plan, Mother had attended individual counseling twice a week and couples
counseling with Father once a week, Mother had enrolled in a drug program in October
2012, Mother had attended Narcotics Anonymous and Alcoholics Anonymous meetings,
Mother had a sponsor, and Mother had complied with her mental health treatment and
medication. Also, Mother had tested negative for drugs on 25 occasions since August 6,
2012. As in her second section 388 petition, the third section 388 petition urged the
modification would be in the minors’ best interest because Mother showed a commitment
to being sober and healthy, Mother was participating in services to address the case
issues, Mother was able to provide the minors with a safe home, and Mother visited the
minors regularly.
In support of the third section 388 petition, Mother attached the same letters from
the Department of Mental Health, DAZ Foundation, and Plaza Community Services that
she had attached to the second section 388 petition. Mother also attached letters dated
February 6, 2012, April 9, 2012, and June 15, 2012, from El Centro Del Pueblo which
described Mother’s and Father’s progress in individual and couples counseling. The
June 15, 2012 letter described Father as becoming “distracted with obstacles arising
within his partnership with DCFS and often lets his frustration with the system derail his
focus on his children during our counseling sessions” and recommended that “both
parents would benefit from continued work in individual therapy to ensure their ability to
take care of their children in a positive manner.”
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Mother also attached her own declaration that stated that she had continued to
comply with the court ordered case plan even after the court terminated reunification
services on November 14, 2012, she had telephonic contact with the minors, and she had
visits with the minors during which they played basketball, tennis, swam, and ate dinner
together.
K. Section 366.26 report
In a section 366.26 report dated March 13, 2013, DCFS stated that a “Concurrent
Planning Assessment” had been completed. It recommended adoption by Shawna as the
appropriate plan for the minors. Shawna was described as in good health, having a high
school degree and some college education, employed, residing in a spacious six-bedroom
house with relatives who had no criminal records, and as having demonstrated that she
had the capacity to meet the minors’ needs. DCFS indicated that the adoption home
study for Shawna was “well underway but not yet completed.” Shawna stated that her
adult brother, who lived in the home with her, would submit to a live-scan by the end of
the week. DCFS also reported that documentation was needed regarding another adult
sibling who lived in the home and had a mental health diagnosis. Shawna told DCFS that
she “was not going to risk her home study being denied because of him” and that she had
paperwork from the clinic where that adult sibling had been treated. The paperwork was
to be “pick[ed] up” by DCFS. DCFS concluded that “[a]t this time adoption remains the
most appropriate plan for the children Michael and Raymond [R.] The adoptive
applicant, [Shawna], has been very cooperative and motivated to complete the home
study. The children have been placed with [Shawna] since 11/01/2010; however, she has
had a relationship with the children since they were infants.” DCFS requested that the
hearing be continued for 90 days “to further assess and complete the adoption home
study.”
A subsequent report dated April 4, 2013, attached a letter dated March 19, 2013,
from Raymond’s therapist that stated that, after spending a year with Shawna,“[u]pon
being returned to Father’s custody, [Raymond] became extremely depressed, not as
talkative, and constantly worried. [Raymond] verbalized his worry for food, money, and
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living in Father’s home due to the size and not having a backyard. Upon being returned
to [Shawna], [Raymond’s] anxiety subsided and a more consistent and structured
environment was put in place. [Raymond] became calmer and more verbal during
sessions. [¶] . . . [¶] Most recently, [Raymond] has expressed feeling relieved that he
no longer ‘has to have visits’ with Father all day on Sundays. He has appeared mostly
apathetic in regards to visits with his parents in general and has expressed that ‘they don’t
do much together.’ [Raymond] appears to be in a calmer, more compliant mood when
visits have been canceled or postponed.”
L. The summary denial of Mother’s third section 388 petition and the hearing on
the minors’ section 388 petition
On April 4, 2013, the juvenile court denied Mother’s third section 388 petition
without a hearing, finding that it failed to state any new evidence or change in
circumstances.
The juvenile court then proceeded with the hearing on the minors’ section 388
petition. Father testified that on the only occasion he had returned the minors late, he had
notified DCFS that he was taking the bus and was running late. Father explained that he
had not called Shawna to let her know he was going to be late because there was “a no
contact order.” Father testified he had canceled a visit on one occasion because of bad
weather. He also stated he had brought clothing for the minors on some visits. He stated,
“And if they come down the hill where I meet them, I send them back up to the house up
to my mom’s house where they are staying to get some sweats or a jacket and that’s
about it.” Father denied that he had ever engaged in a verbal altercation with Shawna in
front of the children. Father also stated Mother had never engaged in an altercation with
Shawna. In response to the question of whether he knew what diagnosis the minors had,
Father stated the minors had been diagnosed with fetal alcohol syndrome and “it most
likely came from a hereditary gene from one of the parents.” When asked whether Father
believed that fetal alcohol syndrome came from a hereditary gene, Father stated, “It’s
highly possible. It’s just that the funding for the research hasn’t been met yet, and it
hasn’t been actually pinpointed, but it’s highly likely.”
17
When asked whether anyone had explained to him that fetal alcohol syndrome was
the result of exposure by the fetus to alcohol in the womb, Father stated, “Not
necessarily. See, like I said, again, I’ll tell you one more time: the research hasn’t been
completely done because of funding. So you’ve got to understand that. Until that’s done,
then we can talk about it more clearly.” Father testified Mother had had a problem with
alcohol, but to the best of his knowledge, she had not used alcohol when she had been
pregnant with the minors.
The juvenile court stated Father’s testimony that he had returned the minors home
late on only one occasion was not credible, and “it appears that Father does not
understand the special needs of his children.” The court granted the minors’ section 388
petition, finding that the minors would be at risk of harm if they were left unmonitored
with Father for eight hours. The court ordered that Father’s visits be monitored and up to
four hours a week. The court then continued the matter to June 6, 2013, for the section
366.26 hearing.
On April 4, 2013, Mother filed a notice of appeal challenging the juvenile court’s
orders made on March 13, 2013, and April 4, 2013, denying her second and third section
388 petitions for modifications without a hearing. Father also filed a notice of appeal
challenging the court’s orders made on those dates.
M. The section 366.26 hearing
The juvenile court held the contested section 366.26 hearing on June 6 and 7,
2013.
Mother testified that she had monitored visits with the minors for two hours on
Mondays and Wednesdays, and since January 2013, she had not missed one visit. The
visits took place at a park. During the visits, the family played sports and ate meals
together. Mother stated she and the minors talked about how they were doing in school,
but otherwise they did not talk very much during the visits. The minors called Mother
“Mom,” ran to Mother and Father at the beginning of the visits, and seemed sad at the
end of the visits. Mother did not talk to the minors between visits because Shawna
“won’t give us any calls.” Mother did not leave any telephone messages on Shawna’s
18
voicemail because when she had left messages previously, Shawna had not returned her
telephone calls. Mother did not know why her visits with the minors were still
monitored, and she said the DCFS social worker never gave her a direct answer when she
asked. Mother stated she had not taken drugs or alcohol since July 2011. Mother then
admitted that she had relapsed and tested positive for methamphetamine on August 22,
2012. Mother testified she had had a drug problem for only two years. Mother testified
the drug program she was currently attending was the first drug program in which she
had participated, but upon questioning, acknowledged that she had been enrolled in
another program before her relapse in August 2012. Mother did not remember when,
why, or how old the minors were when they were first removed from her care. Mother
did not remember Raymond’s diagnosis, Mother did not know the name of Raymond’s
primary pediatrician, and Mother had not taken Raymond to any doctor’s appointments
or asked to accompany him to appointments. Mother and Father were still in a
relationship.
Father testified he and Mother visited the minors on Mondays and Wednesdays for
two hours and then attended Michael’s sports games on Thursdays and Saturdays. Father
also had eight-hour unmonitored visits with the minors during which they ate, rode their
bikes, and went to the skateboard park where they “were free.” Father also helped the
minors with their homework on Mondays and Wednesdays. On occasion, Father had
brought extra clothes for the minors or sent them back to the house for more clothes.
Shawna had never invited Father to attend any of the doctors’ appointments or school
activities. Although he was invited by DCFS to attend the medical appointments and
school activities, he did not go because the previous hearing officer “protected me by
giving me a stay-away order for both of us. Okay. Because there’s been things in the
past where things were just made up. Okay.” Father also did not have any telephone
calls with the minors because “it’s a stay-away order for my protection.” Father testified
that the minors had been returned to his care for two weeks and were removed when it
was determined that the fracture Raymond had sustained had occurred accidentally at
Shawna’s house. During the two weeks the minors were in his care, Father provided for
19
the minors by bathing them, taking them to school, and helping them with their
homework. Father stated Raymond had been diagnosed with fetal alcohol syndrome, but
had been cured. Father testified fetal alcohol syndrome can be caused when the mother
drinks alcohol while pregnant, or by a “hereditary gene.”
Raymond’s therapist, Michelle Dadoun, testified that immediately after visits with
Mother and Father, Raymond was upset, quiet, and anxious. Raymond did not display
those behaviors at sessions that were not preceded by visits with Mother and Father.
Dadoun opined that Mother and Father were unable to maintain a structured and
consistent environment because when Raymond lived with them, he failed to get his
homework done. She also stated that Raymond seemed indifferent to the prospect of not
seeing Mother and Father again if Shawna adopted him.
Raymond testified he visited with his parents on Mondays and Wednesdays.
During the visits, he ate snacks, sometimes did his homework, and played basketball,
soccer, and tennis. He enjoyed the visits. Raymond stated he would be “a little bit sad”
if he could not see Father on Mondays and Wednesdays anymore. Raymond stated he
did not know if he wanted to continue to have a relationship with Father. When asked if
he remembered living with Father, Raymond answered, “I don’t know.” He said he
would feel sad if he could not visit Mother and stated he would like to see her more.
When asked whether he wished to be adopted by Shawna, Raymond replied, “I don’t
know.” Raymond testified that when he was sad about something, he would want to talk
to Shawna. He also “sometimes” spoke to Mother when he was sad or had problems in
school.
Michael testified he enjoyed the visits with Mother and Father and he wished to
continue having visits with them.
Counsel then made closing arguments.
The juvenile court continued the matter and on reconvening, stated that it adopted
the “statements of facts and minors’ counsel’s brief.” It observed Raymond and Michael
had been involved in the dependency system since they were six and three years old,
respectively, and at the time of the hearing, they were eleven and eight years old. The
20
court then addressed the issues of the minors’ adoptability, observing that “generally
adoptable” children have characteristics such as age, behavior, and personal appearance
that “make it likely that a prospective adoptive family will be located in a reasonable time
regardless if they have already been found.” The court noted that when a child is
considered unadoptable due to age, poor physical health, disability, or emotional
instability, the child may be “specifically . . . adoptable” because a prospective adoptive
family has been identified and is willing to adopt the child. The court stated, “In this
case, both children do have some special needs. Raymond is diagnosed with mild mental
retardation. He has features of F.A.S. Fetal Alcohol Syndrome and both children have
[individualized education programs] and both children are receiving mental health
counseling . . . . Both brothers are good looking and affable and have done remarkably
well in the care of their adult sister . . . . [¶] Their sister [Shawna] is committed to
adopting the boys. Thus the court finds by clear and convincing evidence that these
children are specifically adoptable.”
With regard to whether Mother’s and Father’s relationship with the minors rose to
the level to satisfy the beneficial relationship exception to termination of parental rights,
the juvenile court stated, “Father and the children testified that during most recent
monitored visits, as well as their unmonitored visits, they engaged in the following
activities basketball, soccer, and tennis. The older child does not remember ever living
with the Father. He did say that he would be a little sad if his visits stopped, and he
couldn’t see his parents anymore. [¶] He stated that if he has a problem . . . he goes to
his caregiver and prospective adoptive parent, his sister. All of the reports in the
evidence indicates that he is thriving in his sister’s home as is his little brother . . . .” The
court stated Father spent his time playing with the minors, riding their bikes, and skating,
and Father said “they were quote, unquote, free.” The court noted there was “no doubt
that the parents loved the minors.” It stated that Mother’s testimony was confusing and
disorganized, her issues with sobriety were ongoing, and she was continuing her
relationship with Father. It noted the minors’ therapists’ reports stated that Mother and
Father acted inappropriately during joint meetings, Father continued to have anger
21
management issues, and Father “continue[d] not to understand Raymond’s special needs
as evidenced by his testimony that fetal alcohol syndrome is a genetic disorder; and that
[Raymond] is cured even though [Father] did go through extensive training.” The court
stated that Mother and Father availed themselves of programs but were not “taking in the
information.”
The juvenile court found that, while the parents consistently visited the minors and
were loving to them, they did not act in a parental role, but acted as friends or a favorite
family member. The court noted that the minors did not look to Mother and Father when
they were sad or needed help. The court found inapplicable the exception to termination
of parental rights based on the existence of a beneficial parental bond. Consequently, the
juvenile court terminated Mother’s and Father’s parental rights.
Mother and Father appeal from the order terminating parental rights.
DISCUSSION
A. The juvenile court did not abuse its discretion by summarily denying Mother’s
second and third section 388 petitions without a hearing
Mother contends she presented prima facie evidence to support evidentiary
hearings on her second and third section 388 petitions and therefore the juvenile court’s
summary denial of the petitions was an abuse of discretion. We disagree.
Section 388, subdivision (a)(1) states in pertinent part: “Any parent or other
person having an interest in a child who is a dependent child of the juvenile court . . .
may, upon grounds of change of circumstance or new evidence, petition the court in the
same action in which the child was found to be a dependent child of the juvenile court . . .
for a hearing to change, modify, or set aside any order of court previously made or to
terminate the jurisdiction of the court. The petition shall . . . set forth in concise language
any change of circumstance or new evidence that is alleged to require the change of order
or termination of jurisdiction.” Section 388, subdivision (d) provides: “If it appears that
the best interests of the child . . . may be promoted by the proposed change of order, . . .
the court shall order that a hearing be held and shall give prior notice . . . .”
22
“[I]f the liberally construed allegations of the petition do 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.” (In re Zachary
G. (1999) 77 Cal. App. 4th 799, 806.) “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.” (Ibid.) We review the juvenile court’s order for
abuse of discretion. (In re Casey D. (1999) 70 Cal. App. 4th 38, 47.) Changed, not
changing, circumstances must be demonstrated. (Ibid.)
We conclude the juvenile court did not abuse its discretion by summarily denying
Mother’s second and third section 388 petitions without a hearing. Our review of
Mother’s second and third section 388 petitions shows she made general, conclusory
allegations which failed to establish a prima facie showing of changed circumstances or
that the proposed change of order would promote the best interests of the minors. (In re
Edward H. (1996) 43 Cal. App. 4th 584, 593.)
1. The second section 388 petition
a. Mother failed to establish changed circumstances
The second section 388 petition alleged Mother had continued to comply with the
case plan, attended individual counseling twice a week and couples counseling with
Father once a week, enrolled in a drug program in October 2012, attended Narcotics
Anonymous and Alcoholics Anonymous meetings and had a sponsor, tested negative for
drugs on 22 occasions since August 6, 2012, and was compliant with her mental health
treatment and medication. However, as we explain, Mother alleged, at best, changing but
not changed circumstances.
We first note that, although Mother had been provided family reunification
services, including alcohol and parenting programs, Mother had been unable to reunify
with the minors in the prior dependency case, and Father had been granted sole legal and
physical custody of the minors in October 2010.
With respect to the current dependency matter, Mother continued the same pattern
of enrolling in programs but subsequently failing to control her anger and drug issues.
23
The minors were removed from Mother and Father’s care on November 1, 2010. Mother
completed a drug and alcohol program in 2011, but tested positive for amphetamines and
methamphetamines on May 9, 2011. After the juvenile court conducted a hearing on and
denied Mother’s first section 388 petition filed on July 15, 2011, Mother failed to appear
for two drug tests in February 2012. Father and Mother fought and used profanity on
April 22, 2012, when the minors did not want to visit Father. On April 23, 2012, Mother
and Father had to be asked leave a TDM after raising their voices in an aggressive
manner and failing to follow directions. Mother enrolled in a drug and alcohol program
on July 25, 2012, but tested positive for methamphetamines one week later on August 2,
2012.
On November 14, 2012, the juvenile court terminated family reunification
services.
Nonetheless, Mother contends that the attachments to the second section 388
petition demonstrate that she was “successfully engaging in services addressing her
mental health issues, anger management and substance abuse.” Given her long history of
relapse and inability to reunify, the juvenile court could well have concluded that Mother
had demonstrated, at best, changing but not changed circumstances. Because her last
positive drug test was on August 2, 2012, Mother had been sober for only seven months
at the time the second section 388 petition was filed on March 1, 2013. The letter from
DAZ Foundation stated that Mother had started individual and couples therapy on
January 2, 2013, a mere two months before the filing of the second section 388 petition.
The court also could have concluded that two months of counseling did not establish
changed circumstances. Moreover, the handwritten notes attached to the second section
388 petition appeared to be “phone visits,” rather than regular, monitored visits and do
not establish a change in circumstances.
This case is not like In re Aljamie D. (2000) 84 Cal. App. 4th 424, cited by Mother,
where the appellate court held that the juvenile court erred in summarily denying without
a hearing the mother’s section 388 petition requesting a 60-day trial visit. In that case,
the appellate court held that the mother had made a prima facie case of changed
24
circumstances in that she had tested clean in weekly random drug tests for over two
years, had completed numerous educational programs and parenting classes, and had
visited consistently with the children and continued to have a strongly bonded
relationship with them. (84 CalApp.4th at p. 432.) Additionally, the mother showed that
the best interests of the minors would be advanced by the proposed modifications
because the minors had repeatedly made clear that their first choice was to live with their
mother. (Ibid.) Here, although Mother had completed educational programs and
parenting classes, as noted by the juvenile court, she did not seem to be “taking in the
information.” In addition, Mother could show only seven months of sobriety after the
minors had been removed for two and one-half years, Mother had a long history of
relapse, and Mother continued to show episodes of anger. Moreover, as noted below, the
minors stated they preferred to live with Shawna.
We conclude that Mother failed to establish a change in circumstances.
b. Mother failed to establish the proposed change in order was in the best
interests of the minors
Mother also was required to make a prima facie showing that the best interests of
the minors would be promoted by placing them in her custody. We determine that the
juvenile court did not abuse its discretion by concluding that she did not make such a
prima facie showing.
“In order to be entitled to a hearing on a petition for modification, a parent must
show changed circumstances and it must appear that the best interests of the child may be
served by a change in the order. (§ 388; Cal. Rules of Court, rule 1432(c).)” (In re
Aljamie D., supra, 84 Cal.App.4th at p. 432.) “Although the specific factors a court must
consider vary with each case, each child’s best interests would necessarily involve
eliminating the specific factors that required placement outside the parent’s home
[citation], here, Mother’s drug addiction.” (In re Angel B. (2002) 97 Cal. App. 4th 454,
463–464.) Additionally, the goal of assuring stability and continuity is taken into
consideration when determining the child’s best interest. (Id. at p. 464.)
25
The second section 388 petition alleged that Mother showed a commitment to
being sober and healthy, Mother was participating in services to address the case issues,
Mother was able to provide the minors with a safe home, and Mother visited with the
minors regularly.
At the time the second section 388 petition was filed, the minors had been
removed from Mother’s care for two and a half years after an unsuccessful attempt to
liberalize visits with Mother and Father in February 2012 and an extended visit with
Father in September 2012. Although Mother behaved appropriately for the most part on
her visits with the minors, they were often exposed to her cursing and fighting with
Father and Shawna. Mother had never assumed a parental role to the minors after they
had been removed from her care. She had not taken them to the doctor or to school or
participated in school conferences. Rather, Shawna provided primary care for the
minors. At the time the second section 388 petition was filed, the minors stated that they
wanted to live with Shawna, who gave them healthy food and took care of them, and they
reported being disturbed by the fighting and profanity used between Mother and Father.
The minors were thriving under the loving and supportive care of Shawna, who wished to
adopt them. We conclude that Mother has not shown how the minors’ best interests
would be served by depriving them of a permanent, stable home in exchange for an
uncertain future.
Because the minors are placed with a relative, it is unlikely that Mother will be
deprived absolutely of a relationship with the minors.
Mother failed to establish a prima facie showing of both a change of
circumstances and that a change of order would be in the best interests of the minors.
Accordingly, we conclude that the juvenile court did not err by denying Mother a
hearing on her second section 388 petition.
26
2. The third section 388 petition
Mother failed to establish changed circumstances and that the proposed change
in order was in the best interests of the minors
Mother’s third section 388 petition was virtually identical to the second section
388 petition. The only difference was that, in addition to the same letters from the
Department of Mental Health, Daz Foundation, and Plaza Community Services that were
attached to the second section 388 petition, Mother attached her own declaration and
letters dated February 6, 2012, April 9, 2012, and June 15, 2012, from El Centro Del
Pueblo. The third section 388 petition also alleged that Mother had had two additional
negative drug tests since the second section 388 petition was filed.
Mother’s declaration stated she had continued to comply with the court-ordered
case plan even after the juvenile court terminated reunification services on November 14,
2012, she had had telephonic contact with the minors, and she had had visits with the
minors during which they played basketball, tennis, swam, and ate dinner together.
However, her declaration did not provide new information regarding changed
circumstances. Moreover, the June 15, 2012 letter from El Centro Del Pueblo advised
that “both parents would benefit from continued work in individual therapy to ensure
their ability to take care of their children in a positive manner.” We conclude that
Mother’s declaration, the negative drug tests, and the letters from Mother’s drug and
alcohol counselor and therapist demonstrated, at most, changing but not changed
circumstances.
We also conclude that for the same reasons stated in part A.1.b., ante, Mother
failed to show that a change in order was in the best interests of the minors.
Accordingly, the juvenile court did not abuse its discretion when it denied
Mother’s third section 388 petition without a hearing.
B. The juvenile court did not abuse its discretion in granting the minors’ section
388 petition
Mother and Father urge that the juvenile court abused its discretion when it
granted the minors’ section 388 petition for modification of an order by changing
27
Father’s visits from unmonitored to monitored visits. We disagree. Because the minors
had special needs, including Raymond’s fetal alcohol syndrome diagnosis, which
condition Father failed to understand and was unable to handle properly, we conclude
that the court did not abuse its discretion in granting the minors’ section 388 petition for
modification limiting Father’s visits to monitored visits.
“At a hearing on a motion for change of placement, the burden of proof is on the
moving party to show by a preponderance of the evidence that there is new evidence or
that there are changed circumstances that make a change of placement in the best
interests of the child.” (In re Stephanie M. (1994) 7 Cal. 4th 295, 317.) “After the
termination of reunification services, the parents’ interest in the care, custody and
companionship of the child are no longer paramount. Rather, at this point ‘the focus
shifts to the needs of the child for permanency and stability’ [citation], and in fact, there
is a rebuttable presumption that continued foster care is in the best interests of the child.
[Citation.] 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.” (Ibid.) “This determination [is] committed to
the sound discretion of the juvenile court, and the trial court’s ruling should not be
disturbed on appeal unless an abuse of discretion is clearly established.” (Id. at p. 318.)
“‘“[I]ssues of fact and credibility are questions for the trier of fact.”’” (In re
Precious D. (2010) 189 Cal. App. 4th 1251, 1259.)
The minors established that circumstances had changed after the juvenile court
granted Father unmonitored visits and that the proposed change in order was in the best
interests of the minors. In support of the minors’ section 388 petition for modification,
Shawna declared that Father’s unmonitored visits had been scheduled on Sundays from
10:00 a.m. to 6:00 p.m., but Father was consistently late in picking them up and returned
them well after dark, sometimes as late as 8:00 p.m. And because Father did not own a
car, the visits occurred outdoors. She stated that Michael was prone to ear infections due
to his cleft palate, and that both minors had been recovering from the flu. Shawna raised
the possibility that Michael’s health problems were exacerbated by the cold night air and
28
he had a cough that had lasted longer because of that exposure. Shawna stated that she
had called DCFS and left a voice mail every time Father had been late. She also stated
that she had contacted DCFS at least five times with regard to the incident where Mother
had yelled at Shawna when Shawna asked Father to tell her if he was going to return the
minors late. Accordingly, Shawna’s declaration established that when Father’s visits
were not monitored, he kept the minors out late, resulting in the possible attenuation of
Michael’s colds and ear infections.
The juvenile court acted well within its discretion when it found not credible
Father’s testimony that he had returned the minors late on only one occasion and that
neither he nor Mother had ever engaged in a verbal altercation with Shawna. Father’s
testimony that he believed that fetal alcohol syndrome was inherited rather than caused
by prenatal exposure to alcohol supported the court’s conclusion that Father did not
understand the minors’ special needs.
On appeal, Father asks us to reweigh the evidence by pointing to Mother’s
“visitation log” that he claims shows that Father conducted visits that lasted between 9:00
a.m. or 10:00 a.m. to 5:00 p.m. or 6:00 p.m., by claiming Shawna’s declaration alleged
only one occasion of tardiness, and by pointing to weather records showing that on one
day in February 2013, the temperature was between 60 and 64 degrees at 6:00 p.m. We
cannot reweigh the evidence. The court was entitled to determine that Father’s testimony
and Mother’s visitation log lacked credibility and Shawna’s declaration was credible.
We reject Father’s arguments that the minors could not have been exposed to cold air
because they traveled with Father in a warm bus and that colds and ear infections cannot
be exacerbated by exposure to cold air.
Accordingly, the minors provided substantial evidence supporting the juvenile
court’s conclusion that circumstances had changed and the proposed modification was in
the best interests of the minors. We conclude that the court did not abuse its discretion in
granting the minors’ section 388 petition.
29
C. Substantial evidence supported the juvenile court’s determination that the
minors were specifically adoptable
We disagree with Mother’s and Father’s contention that there was no substantial
evidence to support the juvenile court’s finding that the minors were specifically
adoptable.
“Before terminating parental rights, the court must find by clear and convincing
evidence that it is likely that the child will be adopted within a reasonable amount of
time. (§ 366.26, subd. (c)(1); [citation].)” (In re K.B. (2009) 173 Cal. App. 4th 1275,
1290.)
DCFS is required to prepare and file an adoption assessment prior to the
section 366.26 hearing to select and implement a permanent plan for the dependent child.
(§§ 361.5, subd. (g)(1), 366.21, subd. (i)(1), 366.22, subd. (c)(1).) The assessment must
include a preliminary assessment of the eligibility and commitment of any identified
prospective adoptive parent. (§§ 361.5, subd. (g)(1)(D), 366.21, subd. (i)(1)(D), 366.22,
subd. (c)(1)(D).) “[T]he court, at a hearing held pursuant to this section or anytime
thereafter, may designate a current caretaker as a prospective adoptive parent if the child
has lived with the caretaker for at least six months, the caretaker currently expresses a
commitment to adopt the child, and the caretaker has taken at least one step to facilitate
the adoption process.” (§ 366.26, subd. (n)(1).)
“The issue of adoptability posed in a section 366.26 hearing focuses on the minor,
e.g., whether the minor’s age, physical condition, and emotional state make it difficult to
find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the
minor already be in a potential adoptive home or that there be a proposed adoptive parent
‘waiting in the wings.’ [Citations.]” (In re Sarah M. (1994) 22 Cal. App. 4th 1642, 1649.)
“It is well established that if a child has special needs which render the child not
generally adoptable, a finding of adoptability can nevertheless be upheld if a prospective
adoptive family has been identified as willing to adopt the child and the evidence
supports the conclusion that it is reasonably likely that the child will in fact be adopted
within a reasonable time.” (In re K.B., supra, 173 Cal.App.4th at p. 1292.) “The finding
30
of adoptability is reviewed under the substantial evidence test. [Citation.]” (Id., at
p. 1290.)
The evidence supports the juvenile court’s findings that the minors were
specifically adoptable. Shawna had been identified as willing to adopt the minors and the
evidence supported the conclusion that it was reasonably likely the minors would be
adopted within a reasonable time. DCFS reported that Shawna, who had had a
relationship with the minors since their birth and with whom they had been placed since
November 2010, wanted to adopt the minors. DCFS also reported that Shawna had
complied with all court orders and case plan activities and that she had been very
cooperative and was motivated to complete the home study. Although Mother and Father
argue there was no approved home study for Shawna and DCFS had concerns about one
of Shawna’s adult siblings who resided in the home and had a mental illness diagnosis,
“parental rights may be terminated to a specifically adoptable child regardless of whether
a home study has been completed.” (In re Brandon T. (2008) 164 Cal. App. 4th 1400,
1410.) In any event, DCFS reported that the home study was “well underway but not yet
completed.”
Further, DCFS was scheduled to obtain documentation on the adult sibling who
had the mental illness diagnosis. Also, Shawna had stated she was not going to risk the
home study being denied because of that adult sibling. Accordingly, the evidence
supported the conclusion that it was reasonably likely the minors would be adopted
within a reasonable time. (See In re Brandon T., supra, 164 Cal.App.4th at p. 1410
[evidence supported finding minor was specifically adoptable where he had been placed
in prospective adoptive home for considerable period of time, preliminary assessment
was contained in DCFS’s section 366.26 report, and nothing in the record suggested
obstacles to completion of home study].)
We conclude that substantial evidence supported the juvenile court’s findings the
minors were specifically adoptable.
31
D. Substantial evidence supported the juvenile court’s order terminating parental
rights
Mother and Father contend that because they established an exception to
termination of parental rights in that they had maintained regular visitation and contact
with the minors and the minors would benefit from continuing the relationship, the
juvenile court erred in terminating parental rights. We disagree.
Once the juvenile court has determined by clear and convincing evidence “that it
is likely the child will be adopted, the court shall terminate parental rights and order the
child placed for adoption.” (§ 366.26, subd. (c)(1).) “Adoption, where possible, is the
permanent plan preferred by the Legislature. [Citations.] ‘Only if adoption is not
possible, or if there are countervailing circumstances, or if it is not in the child’s best
interests are other, less permanent plans, such as guardianship or long-term foster care
considered.’ [Citation.]” (In re Autumn H. (1994) 27 Cal. App. 4th 567, 573–574.) If the
court finds a compelling reason for determining that termination would be detrimental to
the minor, the court shall not terminate parental rights but shall order legal guardianship
or long-term foster care for the minor. (§ 366.26, subd. (c)(4)(A).) Section 366.26,
subdivision (c)(1)(B) sets forth six circumstances where the court may forgo adoption
and retain parental rights. One of the reasons is if “[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).)
The parental relationship must be more than “‘frequent and loving contact.’” (In
re Cliffton B. (2000) 81 Cal. App. 4th 415, 424.) “[T]he court balances the strength and
quality of the natural parent/child relationship in a tenuous placement against the security
and the sense of belonging a new family would confer. 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.” (In re Autumn H., supra,
27 Cal.App.4th at p. 575.) “The exception must be examined on a case-by-case basis,
taking into account the many variables which affect a parent/child bond. The age of the
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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
are some of the variables which logically affect a parent/child bond.” (Id. at pp. 575–576
[substantial evidence supported the juvenile court’s order terminating parental rights
where relationship was one of friendship and termination would not be detrimental to the
minor, who “had been a dependent for three-quarters of her young life and needed a
stable, permanent home”].)
“When contesting termination of parental rights under the statutory exception that
the parent has maintained regular visitation with the child and the child will benefit from
continuing the relationship, the parent has the burden of showing either that
(1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental relationship would
be detrimental to the child. [Citation.]” (In re Angel B., supra, 97 Cal.App.4th at p. 466.)
“[T]he juvenile court’s decision whether an adoption exception applies involves
two component determinations: a factual and a discretionary one. The first
determination—most commonly whether a beneficial parental or sibling relationship
exists, although section 366.26 does contain other exceptions—is, because of its factual
nature, properly reviewed for substantial evidence. [Citation.] The second determination
in the exception analysis is whether the existence of that relationship or other specified
statutory circumstance constitutes ‘a compelling reason for determining that termination
would be detrimental to the child.’ (§ 366.26, subd. (c)(1)(B); [citation].) This
‘“quintessentially” discretionary decision, which calls for the juvenile court to determine
the importance of the relationship in terms of the detrimental impact that its severance
can be expected to have on the child and to weigh that against the benefit to the child of
adoption,’ is appropriately reviewed under the deferential abuse of discretion standard.
[Citation.]” (In re K.P. (2012) 203 Cal. App. 4th 614, 622.)
As we explain, we conclude Mother and Father failed to show that the benefit to
the minors from continuing their relationship with Mother and Father outweighed the
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benefits they would receive from the permanence of being adopted. Mother and Father
appeared to love the minors. However, while they had a loving relationship with the
minors, they did not occupy a parental role in their lives. Mother and Father did not seem
to be able to care properly for them or to control their tempers around them. On one
occasion, Mother had a verbal altercation with Shawna while Father merely looked on.
Mother and Father became angry at Shawna because she refused to let the minors take
home junk food that Mother and Father had brought for the minors. Father yelled at the
minors, causing them to not wish to visit him. Father did not understand the seriousness
of the minors’ special needs. Although Father had taken part in a fetal alcohol syndrome
support group, he believed fetal alcohol syndrome was a hereditary condition, was in
denial of Raymond’s diagnosis of fetal alcohol syndrome, and stated at one point that
Raymond had been cured. Mother could not remember Raymond’s diagnosis and did not
remember when, why, or how old the minors were when they were first removed from
her care. Even though Shawna told Father to bring the minor’s home on time, Father
kept the minors outdoors later than the scheduled return time, even though exposure to
the elements might exacerbate Michael’s medical condition. Neither Mother nor Father
appeared to be able to overcome their long-standing alcohol and drug problems in the
interests of the minors.
Nevertheless, Mother and Father argue that there is a positive parent-child
relationship between them and the minors. Father argues that he had raised Raymond for
the first seven years of his life and Michael for the first three years of his life and that
reports prior to September 2012 establish “a real tenderness in connection between the
parents and their children.” He also contends that during the two-week extended visit in
2012 and during unmonitored visits, he acted in a parental role by feeding the minors,
bathing them, helping them with their homework, and getting them to school. Mother
similarly argues that she helped the minors with their homework, talked to them about
school, played games with them, and attended the minors’ sports games. They both
argue that the minors referred to Mother as “Mom.”
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Neither Mother nor Father can show more than frequent and loving contact with
the minors in their role as a friendly visitor. The minors had been involved in the
dependency system since Raymond was born. At the time of the hearing they were
11 and 8 years old. Yet Mother and Father repeatedly failed to reunify with the minors
and Father was unable to understand and handle appropriately the minors’ special needs.
Raymond did not remember living with Mother and Father and Raymond’s therapist
reported that Raymond was upset, quiet, and anxious after visits with Mother and Father.
Although at the hearing both minors expressed sadness at terminating visits with Mother
and Father, they also had reported they wanted to live with Shawna, with whom they had
bonded and who provided appropriate and adequate care for them in a nurturing
environment.
We conclude that Mother and Father failed to show that termination of parental
rights would result in a detriment that would outweigh the minors’ need for a permanent,
stable home.
DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED.
MILLER, J.*
We concur:
CHANEY, Acting P. J.
JOHNSON, 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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