In re N.J. CA2/6 ( 2023 )

Filed 5/18/23 In re N.J. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re N.J., a Person Coming 2d Juv. No. B323577
Under the Juvenile Court Law. (Super. Ct. No. J073039)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
J.J. et al.,
Defendants and Appellants.
S.C. (Mother) and J.J. (Father) appeal from the juvenile
court’s order terminating parental rights to their minor son, N.J.,
and selecting adoption as the permanent plan. (Welf. & Inst.
Code,1 § 366.26.) Mother contends: (1) the court erred when it
1 Unlabeled statutory references are to the Welfare and
Institutions Code.
concluded that the beneficial parent-child exception to adoption
does not apply. (§ 366.26, subd. (c)(1)(B)(i).) Father contends: (2)
the court erred when it summarily denied his request to
reconsider its order bypassing reunification services. (§ 388,
subd. (a)(1).) We affirm.
FACTUAL AND PROCEDURAL HISTORY
N.J. is Mother’s fifth child, her second with Father. When
N.J. was born in February 2022, Mother said he was Father’s
child. Father said he was “unsure” that was true because he had
not had contact with Mother for nearly a year. Even if it were,
Father said that he was uninterested in “doing the whole drama”
with Mother and did not “have the energy” to participate in
another child welfare case.
All four of N.J.’s siblings have been taken into protective
custody due to their parents’ drug use and domestic violence.
Shortly after his birth N.J. entered protective custody because he
exhibited signs of methamphetamine and fentanyl withdrawal.
He was placed with his maternal grandmother, who had already
adopted N.J.’s three oldest siblings.
The juvenile court held a detention hearing when N.J. was
just a few weeks old. Mother attended the hearing, but Father
did not. At the hearing a Ventura County Human Services
Agency (HSA) social worker said that N.J.’s grandmother
reported that Mother had visited her son and acted appropriately
toward him. The court found Father to be N.J.’s presumed
father. The social worker called Father multiple times over the
next month to discuss the matter, but the two never spoke.
Mother attended the combined jurisdiction and disposition
hearing in May. Father did not. At the hearing Mother said that
she visited N.J. daily. She fed him, changed his diaper, held him,
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and talked to him. She also watched movies with him and his
older siblings. HSA social workers nevertheless recommended
bypassing reunification services based on Mother’s prior
resistance to drug treatment services, her failure to reunify with
N.J.’s siblings, and the termination of her parental rights to three
of those children. The juvenile court agreed with HSA’s
recommendation and set a section 366.26 hearing.
In June, Father told the social worker that he had recently
seen pictures that led him to believe that N.J. was, in fact, his
son. He requested a paternity test. The juvenile court granted
his request.
Father took the paternity test in August. It confirmed that
N.J. was his biological child. Father filed a section 388 petition
after he received the results, asking the juvenile court to
reconsider its order bypassing reunification services. He alleged
the results of the paternity test constituted changed
circumstances that warranted reconsideration. Additional
changed circumstances included that Father had been in a sober
living program for more than 18 months, had taken parenting
classes, and had “consistently requested visits” with N.J. Father
also claimed that it was in N.J.’s best interests to be connected to
his biological family.
The juvenile court summarily denied Father’s petition for
the following reasons: Father had been reluctant to get involved
in N.J.’s case for several months and did not attend any of the
initial hearings. He failed to randomly drug test and had a
criminal history. His statement that he “consistently requested
visits” with N.J. was not true.
Father filed a second section 388 petition 10 days later,
again requesting reunification services and visitation with N.J.
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Father alleged he had requested visitation in June, and again in
September. The juvenile court denied this petition, finding that
the visitation requests did not show a change in circumstances
and that reconsideration of its prior orders was not in N.J.’s best
interests.
The section 366.26 hearing was held in September. At the
hearing the HSA social worker said that the maternal
grandmother had reported that Mother was not helping much
with N.J. Mother no longer visited N.J. daily. When Mother was
present in the house she was usually sending text messages or
using social media. She did not change N.J.’s diaper, feed him, or
help clean his bottles.
Mother testified that the maternal grandmother had never
raised concerns about her visits. The reduction in visitation only
lasted two weeks. Mother holds N.J. nearly the entirety of each
visit and helps care for him. She only uses her phone to take
pictures of her son. He smiles when he hears her voice and tries
to reach for her.
During closing arguments, Mother argued the beneficial
parent-child relationship exception to adoption applies because
she had visited N.J. almost daily and had a close bond with her
son. She urged the juvenile court to select guardianship as the
permanent plan. The court declined to do so. It found that the
beneficial parent-child relationship exception does not apply and
terminated parental rights.
DISCUSSION
The beneficial parent-child relationship exception to adoption
Mother contends the juvenile court erred when it concluded
that the beneficial parent-child relationship exception to adoption
does not apply. We disagree.
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A juvenile court may not terminate parental rights if the
parent establishes, by a preponderance of the evidence, that: (1)
they have regularly visited their child, (2) “the child would
benefit from continuing [a] relationship” with them, and (3)
“terminating the relationship would be detrimental to the child.”
(In re Caden C. (2021) 11 Cal.5th 614, 629 (Caden C.); see
§ 366.26, subd. (c)(1)(B)(i).) The first of these elements is not at
issue here. As to the second, courts must consider “a slew of
factors, such as ‘the age of the 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’ ” to determine whether the child would benefit from a
continued relationship with the parent. (Caden C., at p. 632.)
Courts should also “consider how children feel about, interact
with, look to, or talk about their parent[]” when assessing this
element. (Ibid.) We review it for substantial evidence. (Id. at
pp. 639-640.)
As to the third element of the beneficial parent-child
relationship exception, the juvenile court “must decide whether it
would be harmful to the child to sever the relationship and
choose adoption.” (Caden C., supra, 11 Cal.5th at p. 633.) “What
courts need to determine, therefore, is how the child would be
affected by losing the parental relationship—in effect, what life
would be like for the child in an adoptive home without the
parent in the child’s life.” (Ibid.) “In each case, then, the court
acts in the child’s best interest in a specific way: it decides
whether the harm of severing the relationship outweighs ‘the
security and the sense of belonging a new family would confer.’ ”
(Ibid.) “ ‘If severing the natural parent/child relationship would
deprive the child of a substantial, positive emotional attachment
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such that,’ even considering the benefits of a new adoptive home,
termination would ‘harm’ the child, the court should not
terminate parental rights.” (Ibid.) We review this element for
abuse of discretion. (Id. at p. 640.)
1. Whether N.J. would benefit from continuing his relationship
with Mother
Substantial evidence supports the juvenile court’s
determination that N.J. would not benefit from continuing his
relationship with Mother. N.J. was just seven months old when
Mother’s parental rights were terminated. He had never been in
Mother’s custody, and had instead spent his entire life in the
custody and care of his maternal grandmother.
Additionally, none of the interactions between Mother and
N.J. was notably positive or negative: During the first months of
visitation Mother fed her son, changed his diaper, and watched
movies with him. But her visits were always supervised. And in
later months Mother no longer visited N.J. daily—and when she
did, she was often on her phone sending text messages or using
social media. She also did not take care of N.J.’s particular
needs: She did not feed him, clean him, or attend his medical
appointments. And though N.J. did smile and reach for Mother
when he heard her voice, such friendly interactions are not
enough to depart from the statutory preference for adoption. (In
re Angel B. (2002) 97 Cal.App.4th 454, 468 (Angel B.).)
Mother counters this conclusion by pointing to evidence in
the record demonstrating the “engaging and affectionate” nature
of her frequent visits with N.J. We recognize this evidence and
commend Mother for attempting to have a positive, emotional
bond with her son. But there is also evidence to the contrary in
the record. And it is not the province of this court to reweigh
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evidence and substitute our judgment for that of the court below.
(In re I.J. (2013) 56 Cal.4th 766, 773.)
Mother also argues that, in concluding N.J. would not
benefit from continuing his relationship with her, the juvenile
court relied on “woefully inadequate” reports from the social
worker. But Mother did not object to the reports during the
proceedings below. Her argument is forfeited.2 (In re Crystal J.
(1993) 12 Cal.App.4th 407, 411-412.) Substantial evidence
supports the finding that N.J. would not benefit from continuing
his relationship with Mother. (Angel B., supra, 97 Cal.App.4th at
p. 468.)
2. Whether terminating his relationship with Mother would be
detrimental to N.J.
The juvenile court did not abuse its discretion when it
concluded Mother failed to show it would be detrimental to N.J.
to terminate his relationship with her. Mother offered no expert
opinion as to how terminating the relationship would affect N.J.
(See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689-690; In
re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.) Nor did she offer
any other evidence suggesting that terminating parental rights
might lead to N.J. suffering from “emotional instability and
preoccupation leading to acting out, difficulties in school,
2 Neither of the cases on which Mother relies is to the
contrary. The court in In re J.D. (2021) 70 Cal.App.5th 833, 861,
“express[ed] no opinion” about the adequacy of the social worker
reports there. And in In re D.M. (2021) 71 Cal.App.5th 261, 270,
there was no indication that the father in that case failed to
object to the social worker reports. “ ‘ “[C]ases are not authority
for propositions not considered.” ’ ” (B.B. v. County of Los Angeles
(2020) 10 Cal.5th 1, 11.)
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insomnia, anxiety, or depression.” (Caden C., supra, 11 Cal.5th
at p. 633.)
Indeed, Mother’s sole argument on appeal is that the
juvenile court should have applied the beneficial parent-child
exception to adoption because there was “no indication” that her
interactions with N.J. were “not positive.” That, however, is not
the Caden C. standard. Rather, for the exception to apply,
Mother had the burden to prove, by a preponderance of the
evidence, that terminating parental rights would be detrimental
to N.J. She points to no evidence in the record that would
support such a determination. She has thus failed to show that
the juvenile court abused its discretion when it declined to apply
the exception.
Summary denial of the section 388 petition
Father contends the juvenile court erred when it denied his
request to reconsider its order bypassing reunification services
without holding an evidentiary hearing. We disagree.
Section 388 permits the parent of a dependent child to
“petition the [juvenile] court for a hearing to change, modify, or
set aside any previous order on the grounds of change of
circumstance.” (In re Anthony W. (2001) 87 Cal.App.4th 246, 250
(Anthony W.).) The court must liberally construe the petition and
determine whether the parent seeking modification has made “ ‘a
prima facie showing to trigger the . . . hearing.’ ” (Ibid.) This
requires the parent to demonstrate both: “(1) a genuine change of
circumstances,” and (2) that “revoking the previous order would
be in the [child’s] best interests.” (Ibid.)
A juvenile “court may consider the entire factual and
procedural history of the case” to determine whether a prima
facie showing has been made. (In re Justice P. (2004) 123
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Cal.App.4th 181, 189.) Such a showing is not made “unless the
facts alleged, if supported by evidence given credit at the hearing,
would sustain a favorable decision on the petition.” (In re
Zachary G. (1999) 77 Cal.App.4th 799, 806.) If the allegations in
the petition “do not show changed circumstances such that the
child’s best interests will be promoted by the proposed change of
order, the . . . court need not order a hearing” and may
summarily deny the petition. (Anthony W., supra, 87 Cal.App.4th
at p. 250; see also Cal. Rules of Court, rule 5.570(d)(1).) We
review such a denial for abuse of discretion. (Anthony W., at p.
250.)
There was no abuse of discretion here. In his section 388
petition, Father alleged he had “consistently requested visits with
his son” and made “efforts to establish contact with [N.J.] early
on in [his] life.” But as the juvenile court reasonably concluded,
Father showed little interest in his son for the first few months of
his life: The HSA social worker contacted Father about N.J. soon
after his birth, but Father refused to meet with her or discuss
N.J.’s case, saying that he did not believe N.J. was his son. He
refused to take a paternity test, claiming that he “[didn’t] have
the energy” to go through another child custody case. He also
refused to involve himself in the court proceedings involving N.J.,
and did not attend the initial detention hearing or the combined
jurisdiction and disposition hearing. Such conduct toward his
son’s circumstances undercuts Father’s allegations that he tried
to become involved in N.J.’s life.
Father also argues his progress toward sobriety constitutes
changed circumstances to warrant an evidentiary hearing on his
petition. But all the evidence he points to in support of this
argument predates N.J.’s birth. Father does not explain how this
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evidence demonstrates a change in the circumstances after the
juvenile court bypassed reunification services.
And even if he had, summary denial of Father’s section 388
petition was proper. When Father filed his petition, he had yet to
meet N.J. N.J. lived with his maternal grandmother and three of
his siblings. His grandmother wanted to adopt him and raise
him with his siblings—siblings the grandmother had already
adopted. Given such a stable setting, the court did not abuse its
discretion when it concluded that ordering reunification would
not be in N.J.’s best interests.
DISPOSITION
The juvenile court’s order terminating Mother’s and
Father’s parental rights and selecting adoption as the permanent
plan, entered September 21, 2022, is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
David M. Yorton, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant J.J. (Father).
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant S.C. (Mother).
Tiffany N. North, County Counsel, Joseph J. Randazzo,
Assistant County Counsel, for Plaintiff and Respondent.