In re J.R. CA2/5 ( 2014 )

Filed 6/20/14 In re J.R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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 FIVE
In re J.R., a Person Coming Under the B251341 consolidated with B253188
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK38280)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTY F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County, Robert S.
Draper, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
I. INTRODUCTION
The mother, Christy F., appeals from the July 15, 2013 order denying her Welfare
and Institutions Code1 section 388 petition. She argues it was error to deny her
modification petition without a hearing. We conclude the juvenile court did not abuse its
discretion in denying the section 388 petition. The mother also challenges the denial of
her request to continue the section 366.26 hearing and the order terminating her parental
rights. She contends the juvenile court should have applied the beneficial parent-child
relationship exception instead of terminating her parental rights. We find the denial of
the continuance request was not an abuse of discretion. In addition, we conclude the
mother failed to establish regular visitation and contact with the child warranting
application of the parent-child relationship exception. We affirm the orders under
review.
II. PROCEDURAL HISTORY
On January 8, 2010, the Los Angeles County Department of Children and Family
Services (the department) filed a section 300 petition on behalf of the child, eight-year
old J.R. The petition alleged: the mother had mental and emotional problems including
paranoia and auditory and visual hallucinations which rendered her unable to provide
regular care and supervision of the child; the mother placed the child in a detrimental and
endangering situation by driving under the influence of methamphetamine; and the
mother had a history of illicit drug abuse and was a current user of methamphetamine.
Also, the petition alleged the father, J.R., failed to provide for the child. In addition, the
petition alleged J.R.’s whereabouts was unknown. The child was detained on January 6,
2010, with temporary placement and custody vested with the department. The mother
was granted monitored visits. The department was ordered to provide the mother with
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Further statutory references are to the Welfare and Institutions Code.
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referrals for individual counseling to address mental health issues and parenting and drug
education classes.
On June 18, 2010, the juvenile court found the child was a dependent under
section 300, subdivisions (b) and (g). The juvenile court sustained the allegations in
count b-1: “[The mother] has mental and emotional problems, including [p]aranoia and
auditory and visual hallucinations which renders the mother unable to provide regular
care and supervision of the child. Such mental and emotional condition on the part of the
mother endangers the child’s physical and emotional health and safety and places the
child at risk of physical and emotional harm and damage.” The juvenile court also found
true the allegations in count b-3: “[The mother] has a history of illicit drug abuse and is a
current user of methamphetamine which renders the mother incapable of providing
regular care of the child. On 01/02/2010, the mother had a positive toxicology screen for
methamphetamine. On 01/02/10, and on prior occasions, the mother was under the
influence of illicit drugs while the child was in the mother’s care and supervision. The
mother’s use of illicit drugs endangers the child’s physical and emotional health and
safety and creates a detrimental home environment, placing the child at risk of physical
and emotional harm and damage.” In addition, the juvenile court sustained counts b-4
and g-1 against the father: “[The father] has failed to provide the child with the
necessities of life including food, clothing, shelter and medical care. The father’s
whereabouts is unknown. Such failure to provide for the child on the part of the father
endangers the child’s physical and emotional health and safety and places the child at risk
of physical and emotional harm and damage.”
The juvenile court removed the child from the mother’s custody. The mother was
ordered to: take all prescribed psychotropic medications; participate in counseling; and
submit to eight weeks of random or on demand drug tests. If the mother missed or had a
positive drug test, she was required to participate in a drug program with random testing.
The mother was granted monitored visits with the child with the department having
discretion to liberalize visitation. On June 18, 2010, the mother appealed the juvenile
court’s jurisdiction and disposition findings and orders. We affirmed the juvenile court’s
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jurisdiction and disposition findings and orders in an unpublished opinion on February 8,
2011. (In re J.R. (Feb. 8, 2011, B225377) [nonpub. opn.].)
On September 13, 2010, the juvenile court gave the department discretion to
liberalize the mother’s visits to unmonitored visitation after consultation with the
Department of Mental Health. On December 17, 2010, the mother was allowed weekly
one-hour unmonitored visits. The department was allowed discretion to further liberalize
the mother’s unmonitored visitation. At the contested six-month review hearing on
February 15, 2011, the mother was granted eight hours of unmonitored visits on
Saturdays with the possibility of overnight visits if the Saturday visits went well. The
juvenile court found the mother was in compliance with the case plan.
Beginning on March 18, 2011, the mother had unmonitored overnight weekend
visits with the child. But on July 19, 2011, the juvenile court terminated the mother’s
overnight visits. This occurred after the mother returned the child to the foster mother,
Linda T., late. The mother was allowed eight hours of unmonitored visits and ordered to
return the child on time. On November 18, 2011, the juvenile court ordered the mother to
have monitored visits pending further order of the court. On February 29, 2012, the
juvenile court terminated family reunification services for the mother. The juvenile court
found the mother was not in compliance with the case plan.
On July 2, 2013, the mother filed a section 388 petition requesting weekend
overnight visitation because the child was placed over 80 miles away. The mother stated
she completed eight consecutive random testing and all the results were negative. In
addition, the mother stated she was in compliance by receiving mental health counseling.
Attached to the petition was a letter from the Endelman Westside Mental Health Center
stating the mother had received case and medication management since November 19,
2010. The mother asserted the request was in the child’s best interest. The mother
enjoyed weekend overnight and extended week-long visits with the child before the
juvenile court modified the visits to monitored visits. The modification petition
concluded, “The child will be 12 years [in July], and should be given a choice of home of
mother[.]”
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On July 3, 2013, the mother’s counsel filed a walk on request. The mother asked
the juvenile court to order the social worker to schedule monitored visits. The mother
stated she consistently called the social worker, Charles Matthews, to schedule visitation
but he did not call back. On July 10, 2013, the juvenile court granted the mother
unlimited visits at the maternal grandparents’ home. The visits were to be monitored by
the maternal grandparents through August. Thereafter, visits would be twice a month at
the maternal grandparents’ home.
On July 15, 2013, the juvenile court denied the mother’s section 388 petition. The
request was denied because the petition did not “state new evidence” or a change in
circumstances. In addition, the juvenile court explained, “visitation was addressed” at the
July 10, 2013 hearing. On August 28, 2013, the mother appealed the denial of the section
388 petition. The appeal from the denial of the modification petition was assigned case
No. B251341.
At the section 366.26 hearing on November 26, 2013, the juvenile court denied the
mother’s continuance request. The juvenile court found: a continuance would not be in
the child’s best interest because she had waited a long time for permanency; the child was
adoptable by clear and convincing evidence and there was no impediment to the
adoption; and no exceptions to the adoption preference applied in this case. The juvenile
court terminated parental rights and designated Linda T. as the prospective adoptive
parent. The mother appealed the order terminating her parental rights on December 5,
2013 and was assigned case No. B253188. On March 4, 2014, the two appeals in case
Nos. B253188 and B251341 were consolidated.
III. EVIDENCE
A. Detention Report
On January 2, 2010, the department received a referral alleging the mother
emotionally abused the child. Children’s social worker Eleanor Clements went to the
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Ronald Reagan Medical Center emergency room at the University of California at Los
Angeles. Ms. Clements spoke with two physicians, Dr. Amer Mock and Dr. Mike Getz.
The doctors stated the mother’s paranoia and visual hallucinations were related to her
amphetamine abuse. A nurse informed Ms. Clements the mother tested positive for
methamphetamines. Ms. Clements interviewed the mother but she was a poor historian
because of her auditory and visual hallucinations. However, the mother denied she had
visual and auditory hallucinations. The mother stated the father brought vermin into her
house and they were constantly multiplying and changing shapes. She stated the father
kept following her. She heard him and his friends “talking” all the time. She accused the
father and his friends of breaking her stuff, running up her gas and water bills and
stealing her mail. The mother denied using methamphetamines but admitted she was
around “some stuff” at Christmas. The mother admitted she had used marijuana before.
The mother stated she and the child were at the Ronald Reagan Medical Center because
the youngster had liver problems. The child was later examined by a physician,
identified only as Dr. Corn, at Children’s Hospital of Los Angeles. According to the
detention report, the examination was performed to clear the child for foster care.
Dr. Corn stated the child had no physical illness or disease.
B. Jurisdiction And Disposition Report
The February 3, 2010 jurisdiction and disposition report was prepared by the
children’s social worker, Mr. Matthews. The report states the child resided with the
foster parent, Linda T., in a four-bedroom, two-bath home in Long Beach. The child
shared a bedroom with Linda’s nine-year-old adopted daughter. The mother called most
days to speak with the child. But the mother had not been in contact with Mr. Matthews
since January 21, 2010.
Mr. Matthews indicated the maternal grandparents adopted the mother when she
was 12 years old. The mother enjoyed a pleasant upbringing after adoption. But when
the mother became a teenager, she became headstrong and defiant, refusing to follow the
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house rules. She had a son, D.F., when she was 17 years old. D.F. became a dependent
of the court in 1999 after he was hospitalized because of an upper arm fracture. In April
2001, D.F. suffered bruises on his face and scratches and bruises on his neck, back and
torso while in the mother’s care. On May 21, 2001, the juvenile court ordered suitable
placement for D.F. and permanent placement services. D.F.’s case was closed on
November 5, 2004.
C. 2010-2012 Review Reports And Last Minute Information for the Court Documents
The March 2, 2010 addendum report stated the mother appeared determined to
regain custody of the child. The mother claimed to be visiting the child every week in
Long Beach. But the June 18, 2010 interim review report stated the mother had not
visited the child since February 16, 2010. The maternal grandparents reported they had
not seen the mother for several months.
The September 13, 2010 interim review report stated the child was doing very well
at school and home since being placed with Linda. The mother was visiting the child
weekly at the maternal grandfather’s church on Sundays. The mother’s random drug
tests were all negative.
The December 17, 2010 status review report stated the child remained in Linda’s
home. The child got along well with all members of the foster family. The child
reported she loved Linda and was very happy to stay in the foster home. The child saw
the mother for monitored visits at church on Sundays. The visits occurred when the child
stayed at the maternal grandparents’ home in Walnut during weekends. The child
expressed mixed emotions. On one hand, the child loved the mother. Yet the child also
felt very close to Linda.
The May 24, 2011 interim review report stated the child remained in Linda’s
home. The child loved living with Linda. But the child also loved going to her mother’s
home and spending weekends there. The child reported visiting her older brother, D.F.,
in Fontana. She enjoyed getting to know her older brother better and growing closer to
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him. In addition, the child and the mother visited water parks, museums and parks
together. The child also went to the maternal grandfather’s church on Sundays with the
mother. On some weekends the mother took the child to the grandparents’ house. The
child spent spring break at her grandparents’ house and had a great time. She reported
the whole family was together for Easter which made her very happy. The mother
reported picking up the child on weekends and spending time with the youngster. The
mother drove 72 miles to Fontana so her two children could spend time together.
The June 1, 2011 last minute information for the court document indicated the
mother tried to receive welfare benefits for the child. A Department of Public Social
Services employee told Mr. Matthews the mother was in the office seeking welfare
benefits for the child. Mr. Matthews wrote that the welfare worker stated, “[The mother]
explained that [the child] had been visiting her and she decided not to take [the child]
back to the foster home.” Mr. Matthews contacted the foster mother, Linda, who said the
child was at home. The foster mother reported the child no longer want to go with the
mother for weekend visits. This was because the mother was acting bizarre.
On July 15, 2011, the department filed a section 388 petition. The petition sought
termination of the mother’s unmonitored weekend overnight visits with the child. The
modification petition alleged the mother failed to return the child to Linda’s residence on
July 10, 2011, after a weekend overnight visit. The next day, Mr. Matthews received a
call from the Los Angeles Office of the Department of Public Social Services. The
mother brought the child into the office to apply for aid. The child was taken into the
custody of the Los Angeles County Sheriff’s Department and returned to Linda’s care on
July 11, 2011. Mr. Matthews noted this was the second time the mother had attempted to
obtain welfare for the child. Mr. Matthews wrote: “Mother’s behavior in the last few
weeks has become very bizarre. Mother seems to feel the court has returned [the child]
to her care and custody. The court has not done this, and mother is not following court
orders as to when to return the child from weekend visits.” On July 19, 2011, the
juvenile court terminated the overnight visits after construing the section 388 petition as a
section 385 motion.
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The September 22, 2011 status review report indicated the mother visited the child
weekly on Saturdays and at church on Sundays. The child expressed mixed emotions
about being returned to the mother’s home. The child loved Linda but also was very
close to the mother. The child reported seeing her maternal grandparents bi-monthly at
their home. Mr. Matthews stated since May 2011, the mother had been “through” three
therapists in two different clinics. The mother refused to sign release of information
forms so Mr. Matthews could obtain information from her therapists. Mr. Matthews
recommended termination of family reunification services for the mother.
On November 14, 2011, the department requested a protective custody warrant be
issued for the child. The mother failed to return the child to Linda’s home following a
visit. Mr. Matthews made a home visit to the mother’s home but neither the mother nor
the child was present. Mr. Matthews and Linda contacted the maternal grandparents who
stated the mother and child did not come to church the past Sunday. Mr. Matthews noted
this was the second time the mother failed to return the child to foster care after a visit.
On November 18, 2011, the warrant request was taken off calendar because the mother
appeared with the child in juvenile court. The mother’s unmonitored visits were
modified to monitored visits pending further order of the juvenile court.
The December 28, 2011 last minute information for the court document reported
the mother had missed several appointments with her clinical social worker, Steve Artiga,
over the past month. Mr. Artiga said the mother stated she missed the most recent
appointment due to “‘incarceration.’” Mr. Artiga suspected the mother had not been
compliant with her medication because she was more tangential in her thoughts at her last
meeting with him. Mr. Matthews reported the mother was arrested on a felony charge on
November 28, 2011 and released the next day. There were no details provided
concerning the felony charge.
On February 29, 2012, Mr. Matthews reported the mother’s arrest was drug-
related and the felony charge remained outstanding. Mr. Matthews indicated Mr. Artiga
was no longer the mother’s therapist. The mother continued to refuse to consent to
release of information about her medication. When the mother came to pick up her bus
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pass at the department office on February 1, 2012, Mr. Matthews was contacted because
her appearance and affect were of concern. When Mr. Matthews spoke to the mother, he
could not understand her. He was unable to ask the mother questions about counseling,
visitation, the signing of release of information forms or her felony arrest. The child had
no seen her mother since Christmas. From December 2011 to June 2012, the mother did
not visit the child. On June 17, 2012, the mother appeared at Linda’s church in Long
Beach and demanded to see the child. The mother called the Long Beach police and
claimed Linda had stolen the child.
The August 29, 2012 status report stated Linda had moved from Long Beach to
Victorville in San Bernardino County. The child said she liked her new home. The child
reported she continued to visit the maternal grandparents by attending day trips, church,
and movies with them. The child saw the mother at church when staying with the
maternal grandparents on most Sundays. The mother usually came to the grandparents’
home for dinner after church. Mr. Matthews wrote: “The [child] reports a loving circle
including grandparents and friends who are helping guide her way. The [child] states she
sees her mother at church and feels she has the best of both words in that she is able to
spend time with her mother and grandparents.” The child expressed a strong desire to
remain in Linda’s home. According to Mr. Matthews, “The [child] states she loves her
mother but is not sure her mother can care for her at this time.” The foster care agency
reported the child was informed of possible adoption by Linda. The child was happy
about it. The foster care worker, Joyce Roberts, noted the child had formed a strong bond
with Linda and other foster family members.
D. September 28, 2012 Section 366.26 Report
The section 366.26 report, filed on September 28, 2012, stated: the child wanted
Linda to adopt her; Linda had adopted two grandnieces in 2009 who resided with her; the
child got along very well with the grand nieces and they called each other “sisters”; the
child was happy, felt very loved and secure residing with Linda; the child continued to
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see the mother at church on Sundays during twice monthly visits with the maternal
grandparents; the child spent 3-4 weeks over summer vacation with her maternal
grandparents; and the child saw the mother at church on Sundays when the youngster was
with her maternal grandparents. Mr. Matthews indicated on September 20, 2012, the
mother came into the department’s office “acting very strange.” The mother declined any
mental health services. Mr. Matthews wrote, “[The m]other admitted she is not taking
her medication nor is she seeing her doctor.”
E. 2013 Review Reports And Last Information For The Court Documents
Mr. Matthews stated in his February 27, 2013 status review report: “[The child]
informed [me] she wishes to be adopted by [Linda]. [The child] states it has been too
long a period of time for her mother to get her back and she wishes to remain in her
current home with [Linda]. [The child] states she wants her mother to get well and
become healthy again.” The child reported seeing the mother at the maternal
grandparents’ home over the holidays. The child stated she had not seen or heard from
the mother prior to the holidays.
The child had resided in Linda’s home for the past three years since January 3,
2010 and continued to thrive in the residence. Linda remained interested in adopting the
child. Linda completed all the adoption paperwork and her home study was approved on
January 16, 2013. Linda loved the child very much and wanted to provide the youngster
with a permanent, stable and loving home through adoption. The May 16, 2013 last
minute information for the court document stated the child last saw the mother on Easter
Sunday at church. The child reported visiting with the mother on Christmas and New
Year’s Day.
The August 28, 2013 status review report stated the child stayed with her maternal
grandparents during her summer break from June 5 to August 5, 2013. The child
reported seeing the mother at the maternal grandfather’s church on Sundays. This
occurred while the child was staying with her maternal grandparents. The child had not
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seen the mother since Easter Sunday. The child reiterated her desire for the adoption
process to move forward. The child explained she wanted adoption to be completed.
This would permit Linda to make the decision to allow the child to sleep over at a
friend’s house. Mr. Matthews indicated the mother failed to pick up money for her train
ticket to visit the child in Rancho Cucamonga. The mother did not appear for her
scheduled visit with the child on August 13, 2013.
F. August 28, 2013 Section 366.26 Report
The August 28, 2013 section 366.26 report stated the child spent her summer
vacation with the maternal grandparents. The child reported continuing to see the mother
at church on Sundays while visiting the maternal grandparents during the summer. The
child continued to want to be adopted by Linda. Mr. Matthews recommended parental
rights be terminated with adoption as the permanent plan.
On September 9, 2013, the child’s attorney requested continuance of the section
366.26 hearing. The child’s attorney explained the child did not want to go forward with
adoption but expressed interest in a guardianship. But the November 26, 2013 last
minute information for the court document stated the child now wanted adoption rather
than legal guardianship. Mr. Matthews wrote: “[I] and [the child] discussed her wishes
regarding adoption or legal guardianship[.] The [child] told [me] she wants to be adopted
by [Linda] to become her daughter in the eyes of the law. [The child] states she wants
[Linda] to be able to make decisions for her as her adopted mother. [The child] wants
[me] to express to the court her feelings that she now wants to be adopted by [Linda], her
current caregiver.”
G. Contested Section 366.26 Hearing
At the November 26, 2013 contested section 366.26 hearing, the child’s attorney
spoke with the youngster. According to the child’s lawyer, the youngster still wanted to
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be adopted. The department’s counsel stated Linda was not interested in legal
guardianship of the child. Mr. Matthews, the social worker, stated the maternal
grandparents were unwilling to split transportation of the child with Linda. Mr.
Matthews had tried to facilitate the mother’s visits by paying for her transportation so she
could visit in Rancho Cucamonga. But twice, the mother failed to go to her scheduled
visit with the child. The mother’s counsel, Victor Ozoude, responded the mother did not
show up because she was unable to contact Mr. Matthews. None of this dialogue was
presented under oath.
The child was called to testify by the mother. The child testified to spending time
with the mother during unmonitored and overnight visits since the detention hearing. The
child testified the mother took very good care of her during those visits. The child stated
Mr. Matthews explained to her the difference between adoption and legal guardianship.
The child understood the mother did not have the right to visit her if adoption was the
permanent plan. But the child testified she was “not okay” with that scenario. The child
last saw the mother in July during a visit with the maternal grandparents. The child has
requested additional visits from Mr. Matthews but he had not called her back about the
visits.
IV. DISCUSSION
A. Section 388 Petition
Section 388, subdivision (a)(1) states in 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 . . . for a hearing to change, modify, or set aside any order of court previously
made or to terminate the jurisdiction of the court.” A parent requesting modification
under section 388 has the burden of proving by a preponderance of the evidence that the
child’s welfare requires such change. (Cal. Rules of Court, rule 5.570, subd. (h)(1)(C); In
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re A.A. (2012) 203 Cal.App.4th 597, 612; In re B.D. (2008) 159 Cal.App.4th 1218,
1228.) The parent must show changed, not changing, circumstances. (In re Mickel O.
(2011) 197 Cal.App.4th 586, 615; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) In
addition, new evidence or change in circumstances must be of such significant nature that
it requires modification of the challenged order. (In re A.A., supra, 203 Cal.App.4th at p.
612; In re Mickel O., supra, 197 Cal.App.4th at p. 615.) We review an order denying a
petition under section 388 for an abuse of discretion. (In re Stephanie M. (1994) 7
Cal.4th 295, 318; In re A.A., supra, 203 Cal.App.4th at p. 612.)
The mother argues the juvenile court erred in denying her section 388 petition
without a hearing. She contends the juvenile court mistakenly believed Mr. Ozoude’s
walk on request to enforce visitation collaterally estopped her from a hearing on her
section 388 petition. The mother argues she sufficiently pleaded changed circumstances
and the child’s best interest to warrant a hearing on her section 388 petition.
In support of her section 388 petition, the mother submitted a letter from the
Endelman Westside Mental Health Center. The letter stated the mother has received case
and medication management from the mental health center since November 19, 2010.
But the letter does not establish a change in circumstances.
Moreover, the juvenile court, without abusing its discretion could find the child’s
best interests would not be served by granting the modification petition. There is ample
uncontradicted evidence the mother was not in compliance with juvenile court orders
requiring her to take medication and attend counseling. Beginning on March 18, 2011,
the mother had unmonitored overnight weekend visits with the child. On May 27, 2011,
the mother attempted to obtain welfare benefits for the youngster even though the child
resided with Linda, the foster mother. On this occasion, the mother was acting bizarrely.
On July 10, 2011, the mother failed to return the child to Linda after a weekend overnight
visit. The child was taken into custody and returned to Linda the next day after the
mother again attempted to obtain benefits for the child. Putting aside the issue of welfare
fraud, the mother claimed she had regained custody pursuant to a juvenile court order
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when nothing of the sort had occurred. Mr. Matthews stated the mother’s behavior in the
last few weeks had become “very bizarre.”
On July 19, 2011 the juvenile court terminated the weekend overnight visits after
the mother was late in returning the child to Linda’s home. In the September 22, 2011
status report, Mr. Matthews stated the mother refused to sign release of information
forms so he could obtain information from her therapists. On November 12, 2011, the
mother again failed to return the child to Linda’s home following a visit. The mother
appeared with the child in juvenile court on November 18, 2011. At that hearing, the
juvenile court modified the unmonitored visitation order to permit only monitored visits.
On November 28, 2011, the mother was arrested on a felony drug charge. The
mother’s clinical social worker, Mr. Artiga, said she had missed several appointments in
November. Mr. Artiga reported the mother stated she missed the most recent
appointment due to “‘incarceration.’” Mr. Artiga suspected the mother had not been
compliant with her medication because she was more tangential in her thoughts at her last
meeting with him. Mr. Matthews reported Mr. Artiga was no longer the mother’s
therapist in February 2012. The mother continued to refuse to consent to release of
information about her medication. When the mother came to pick up her bus pass at the
department’s office on February 1, 2012, Mr. Matthews was contacted because her
appearance and affect were of concern. Mr. Matthews could not understand the mother
during his conversation with her. In addition, he was unable to ask the mother questions
about counseling, visitation, the signing of release of information forms or her arrest.
The mother acknowledges she was not participating in services, did not take her
medication and was not seeing a physician in 2012. From December 2011 to June 2012,
the mother did not visit the child. But on June 17, 2012, the mother appeared at Linda’s
church in Long Beach and demanded to see the child. The mother called the Long Beach
police and falsely claimed Linda had stolen the child. On September 20, 2012, the
mother came into the department’s office “acting very strange.” The mother admitted she
was not taking her medication or seeing her doctor but declined any mental health
services.
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In the February 27, 2013 status review report, the child reported seeing the mother
over the holidays at the maternal grandparents’ home. The child saw the mother on
Christmas and New Year’s Day. But the child did not see or hear from the mother before
the holidays. The May 16, 2013 last minute information for the court document stated
the next time child saw the mother was on Easter Sunday. The child did not see the
mother again until June 2013. During that time, the child saw the mother on Sundays at
the maternal grandfather’s church. Given the foregoing evidence, it was not an abuse of
discretion for the juvenile court to deny the modification petition. In all respects, the
juvenile court’s determinations are supported by substantial evidence. There were no
material changed circumstances nor was it in the child’s best interests for a hearing to be
held on the modification petition’s merits.
B. Continuance of Section 366.26 Hearing
The mother argues the trial court abused its direction in denying her November 26,
2013 continuance request. Under section 352, subdivision (a), no continuance shall be
granted that is contrary to the interest of the child. Section 352, subdivision (a) states in
part: “In considering the minor’s interests, the court shall give substantial weight to the
minor’s need for prompt resolution of his or her custody status, the need to provide
children with stable environments, and the damage to a minor of prolonged temporary
placements. [¶] Continuances shall be granted only upon a showing of good cause and
only for that period of time shown to be necessary by the evidence presented at the
hearing on the motion for continuance.” We review the juvenile court’s denial of a
continuance request for abuse of discretion. (In re Mary B. (2013) 218 Cal.App.4th
1474, 1481; In re Giovanni F. (2010) 18 Cal.App.4th 594, 604; In re Elijah V. (2005) 127
Cal.App.4th 576, 585.)
Given the applicable deferential standard of review, the mother’s contention that
the juvenile court erred in denying the continuance is meritless. The juvenile court ruled
the November 26, 2013 continuance was not in the child’s best interest. The child has
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been a dependent of the court since June 2010. The child was now 12 years old and
wanted to be adopted by Linda. The child has been residing with Linda since January 3,
2010. Linda loved the child and wanted to provide the youngster with a permanent,
stable and loving home through adoption. Linda’s adoptive home study had been
approved in January 2013. The child thrived in Linda’s home and felt happy, loved and
secure living with the prospective adoptive family. The child got along very well with
Linda’s two adopted grand nieces and they called each other “sisters.” The child’s best
interest was promoted by proceeding with the section 366.26 hearing. The juvenile court
did not abuse its discretion in denying the mother’s continuance motion.
C. Parent-Child Relationship Exception
At a section 366.26 hearing, the juvenile court selects and implements a permanent
plan for the dependent child. (In re Celine R. (2003) 31 Cal.4th 45, 52-53; In re Marilyn
H. (1993) 5 Cal.4th 295, 307.) Our Supreme Court has summarized the juvenile court’s
options at the section 366.26 hearing: “In order of preference the choices are: (1)
terminate parental rights and order that the child be placed for adoption (the choice the
court made here); (2) identify adoption as the permanent placement goal and require
efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order
long-term foster care. (§ 366.26, subd. (b).) Whenever the court finds ‘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).)” (In re Celine R., supra, 31 Cal.4th at p.
53; In re Hector A. (2005) 125 Cal.App.4th 783, 790-791.)
One exception to adoption is the parent-child relationship exception. This
exception is set forth in section 366.26, subdivision (c)(1)(B)(i) which states: “[T]he
court shall terminate parental rights unless either of the following applies: . . . [¶] (B)
The court finds a compelling reason for determining that termination would be
detrimental to the child due to one or more of the following circumstances: [¶] (i) The
parents have maintained regular visitation and contact with the child and the child would
17
benefit from continuing the relationship.” (In re K.P. (2012) 203 Cal.App.4th 614, 621-
622.) The mother has the burden of proving the relationship with child outweighs the
well-being gained by a permanent home with adoptive parents. (Id. at p. 621; In re
Autumn H. (1994) 27 Cal.App.4th 567, 575.) Evidence of frequent and loving contact is
not enough to establish a beneficial parental relationship. (In re Bailey J. (2010) 189
Cal.App.4th 1308, 1315-1316; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)
The parent also must show a parental relationship exists with the child. (In re K.P.,
supra, 203 Cal.App.4th at p. 621; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)
Appellate courts have adopted differing standards of review for the parental
relationship exception determination. Most courts review the parental relationship
exception determinations for substantial evidence. (In re K.P., supra, 203 Cal.App.4th at
p. 621; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) One court has applied an
abuse of discretion standard of review. (In re Jasmine D. (2000) 78 Cal.App.4th 1339,
1351; see In re K.P., supra, 203 Cal.App.4th at p. 621.) More recently, two courts have
adopted both the substantial evidence and abuse of discretion standards of review. (In re
K.P., supra, 203 Cal.App.4th at pp. 621-622; In re Bailey J., supra, 189 Cal.App.4th at
pp. 1314-1315.) In evaluating the juvenile court’s determination as to the existence of a
beneficial parental relationship, these two courts review for substantial evidence. (In re
K.P., supra, 203 Cal.App.4th at pp. 622; In re Bailey J., supra, 189 Cal.App.4th at p.
1314.) But whether termination of the parental relationship would be detrimental to the
child as weighed against the benefits of adoption is reviewed for abuse of discretion. (In
re K.P., supra, 203 Cal.App.4th at p. 622; In re Bailey J., supra, 189 Cal.App.4th at p.
1315.) No error occurred under any of these standards of review.
The mother argues it was error to terminate her parental rights because the
beneficial parent-child relationship exception applied under section 366.26, subdivision
(c)(1)(B)(i). The mother argues: there was regular and consistent visits with the child
under the circumstances; they shared a positive, strong and beneficial relationship; and
she occupied a parental role. These contentions are meritless when viewed under any
potential standard of appellate review.
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Under the first prong of the parent-child relationship exception, the mother had the
burden of proving regular and consistent visitation. (§ 366.26, subd. (c)(1)(B)(i).) Under
any standard of appellate review, the mother did not meet her burden. In January 2010,
the mother called the youngster most days and visited after the child was detained. But
from February to June 2010, the mother admitted never visiting the child. In September
2010, Mr. Matthews reported the mother was again visiting the child at the maternal
grandfather’s church. In March 2011, the mother was granted unmonitored visits. But
the visits became monitored in November 2011 after the mother failed to return the child
back to Linda. From December 2011 to June 2012, the mother did not visit the child. On
June 17, 2012, the mother appeared at Linda’s church and demanded to see the child.
The mother called the police and falsely claimed Linda had stolen the child. By August
2012, the mother was visiting the child again on Sundays at church when the child visited
the maternal grandparents twice monthly.
But in February 2013, the child was interviewed by Mr. Matthews. The child had
not seen or heard from the mother since before the holidays. The child reported visiting
with the mother on Christmas and New Year’s Day. The next time the child saw the
mother was on Easter Sunday. The mother did not visit again until the summer. The
child reported seeing the mother on Sundays while staying with the maternal
grandparents from June 5 to August 2013. But on July 10, 2013, the juvenile court had
granted the mother unlimited visits at the maternal grandparents’ home through August
2013. The mother complains visitation was difficult after the child moved to San
Bernardino County in the summer of 2012. However, the mother did not visit more
frequently at the maternal grandparents’ home when she was permitted unlimited visits in
July 2013. The mother failed to show regular visitation and contact given her irregular
visits. This irregular visitation occurred throughout the nearly four years that the child
was in foster care. Substantial evidence supports the juvenile court’s finding that the
parent-child relationship exception was inapplicable.
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V. DISPOSITION
The orders denying the mother’s section 388 petition and terminating parental
rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
KRIEGLER, J.
MINK, J.*
*
Retired 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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