Filed 12/10/15 In re A.K. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.K. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E063591
Plaintiff and Respondent, (Super.Ct.Nos. J251174, J251175 & J251176) v. OPINION A.J. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant A.J.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and
Appellant T.K.
1 Jean-Rene Basle, County Counsel, Danielle E. Wuchenich, Deputy County
Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
T.K. (mother) and A.J. (father; collectively, parents) appeal an order terminating
their parental rights under Welfare and Institutions Code, section 366.261 to their
daughter A.J. (born in 2003) and two sons, A.J.J. (born in 2006) and A.K. (born in 2012).
Mother contends the juvenile court erred in summarily denying her section 388 petition
without a hearing. Father contends the juvenile court erred in rejecting the beneficial
parent relationship exception to terminating parental rights (§ 366.26, subd. (c)(1)(B)(i)).
Father also argues the juvenile court erred in failing to consider that termination of
parental rights might lead to separation of the siblings. To the extent applicable, mother
joins in father’s arguments on appeal.
For the reasons stated below, we reject parents’ contentions and affirm the
judgment.2
1 Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
2 Father has also filed in this case a petition for writ of habeas corpus (case No. E064062), in which he alleges he was denied effective assistance of counsel in the juvenile court. By separate order, we have denied father’s writ petition. We conclude father has not met his burden of establishing that his trial attorney’s representation fell below prevailing professional norms or he was prejudiced.
2 II
FACTS AND PROCEDURAL BACKGROUND
San Bernardino County Children and Family Services (CFS) received referrals on
August 29, 2013, and September 4, 2013, alleging mother had physically abused A.J.,
A.J.J., and A.K. (the children) and father had generally neglected them. The social
worker interviewed A.J. and A.J.J. at their school. A.J. reported that the previous day
mother got angry at her because mother thought A.J. was hurting their dog. Mother
grabbed A.J. by her arms and held her to the floor, hit A.J. with an open hand, and then
ordered her to walk alone to A.J.’s older sister’s house, a block away. A.J. was scared
because it was late and dark outside. A.J. told the social worker mother disciplined her
that way when she argued with mother. Mother also would spank her with an open hand
and “pop” her in the mouth with an open hand. A.J. said she was afraid of mother and
would rather stay with her two adult half-sisters, where she felt safe. A.J. reported she
overheard one of her older sisters discussing A.K.’s black eye.
The social worker interviewed A.J.J., who reported his parents disciplined him by
being “‘spanked or popped in the mouth.’” A.J.J. told the social worker that the previous
evening his older, adult sister took him to her home. When his sister arrived at A.J.J.’s
house, mother yelled at her, grabbed her by the chin, and pushed her while she was
holding A.K. Mother grabbed A.K. out of the older sister’s arms. This altercation scared
A.J.J. A.J.J. said he wanted to stay with his older, adult sisters. A.J.J. said A.K. had two
black eyes and asked the social worker if she could “help his parents to stop fighting.”
A.J.J. said that while father was at work painting curbs, mother slept at home. She slept
3 so deeply sometimes that A.J.J. thought she was dead. She would not wake up when A.J.
and A.J.J. tried waking her up. A.J.J. whispered to the social worker not to tell CFS.
The social worker interviewed mother, who was holding A.K. A.K. had a bruise
on his forehead above his right eye, which mother claimed A.J.J. caused when A.J.J.
pulled a blanket out from under A.K. This caused A.K. to bump his head on the corner of
the wall. Mother denied hitting A.J. on the eye but admitted she hit A.J. in the face.
Mother said she had aimed for A.J.’s mouth but A.J. turned away and mother hit her on
the cheek. Mother believed A.J. had behavioral issues and had tried to hurt their dog.
Mother said she did not know what had caused A.J.’s bruises on her face.
The social worker created a safety plan for mother. Mother agreed to sign a
declaration releasing the children temporarily to stay with father’s adult daughters, AsJ
and AuJ. Parents also agreed to participate in reunification services and signed a
declaration relinquishing the children into temporary custody. AsJ’s home was not
approved for placement because it was too small to accommodate the three children. The
children were therefore initially placed in foster care.
Petition and Detention Hearing
In September 2013, CFS filed a juvenile dependency petition as to the three
children under section 366.26, subdivisions (a), (b), and (j), alleging serious physical
abuse of A.J., failure to protect the children, and abuse of siblings A.J.J. and A.K. The
petition alleged that on September 3, 2013, mother slapped A.J., causing bruising to
A.J.’s right eye lid and redness and swelling under her left eye; the children had been
exposed to parents’ domestic violence; parents suffered from substance abuse; mother
4 had mental health issues; and during juvenile dependency proceedings in the State of
Washington, the court found that mother had physically abused A.J. and had failed to
reunify with her.
CFS reported in the detention report that, although A.J. reportedly did not reunify
with mother in Washington, A.J. reunified with father in 2012, about six months before
CFS filed the instant juvenile dependency case.3 Mother had no known California
criminal history. Father had an extensive criminal history between 1995 and 2003,
including drug-related charges.
At the detention hearing in September 2013, mother admitted she had a one night
stand with a man in Seattle, named Jason, who might be A.K.’s biological father. She
had no other contact with him or information about him. Father initially filed a parentage
statement denying he was A.K.’s father but withdrew the statement at the detention
hearing so that he could preserve his relationship with A.K. The court ordered the
children detained in a foster home, ordered parents to submit to drug testing that day, and
authorized supervised visitation with A.K. and supervised visitation with A.J. and A.J.J.
after parents completed an assessment by the Children’s Assessment Center (CAC).
Jurisdiction/Disposition Hearing
CFS stated in the jurisdiction/disposition report that father was the presumed
father of A.J. and A.J.J. He reportedly was not the biological father of A.K. but father
3 CFS erroneously reported in the six-month status review report that the out-of- state juvenile dependency proceedings were in Washington D.C.
5 held A.K. out as his own child and had provided care and support for A.K. since his birth.
Mother failed to reunify with the children in the previous juvenile dependency case in
Washington and therefore should not have had the children in her care. Parents,
however, moved to California, reunited, and moved in together in their current home.
CFS recommended father receive reunification services but not mother.
Parents waived their rights at the jurisdiction/disposition hearing and submitted on
the petition to jurisdiction and disposition. The court found father to be the presumed
father of all three children, declared the children dependents of the court, ordered the
children removed from parents’ custody, and ordered reunification services for both
parents. The court ordered supervised visitation for parents, once a week for two hours,
as to all three children.
In December 2013, the court authorized an application for psychotropic
medication for A.J. for hyperactivity, defiance, poor attention, and physical altercations.
Six-Month Status Review Hearing
CFS reported in its six-month status review report filed in May 2014, that the three
children were living with their older, adult sister, AuJ. During the reporting period,
mother and father both failed to drug test five times and did not attend outpatient
treatment. Father tested positive for drugs on one occasion.
In May 2014, father told the social worker parents were homeless. He was staying
in a tent behind his older daughter’s home and parents might be breaking up. Mother was
going to move to a hotel. Mother was pregnant. Mother received a referral for mental
health services but failed to go. Parents did not have any monetary resources or stable
6 housing. When the social worker discussed recommending adoption for the children,
father said he did not care if his daughter, AuJ, adopted or had guardianship of them, as
long as the children stayed together. CFS reported that mother also had not engaged in
substance abuse testing or treatment, as ordered by the court. Mother participated in
therapy but family therapy was cancelled because of parents needing first to work
through issues between each other.
Parents participated in supervised visitation once a week for two hours. Visitation
at AuJ’s home was moved to the CFS offices because of parents’ negative behavior
towards the caregivers. Visits between mother and A.J. were at times explosive. A.J.
and A.J.J. were attending weekly therapy. A.J. was taking psychotropic medications for
Attention Deficit and Hyperactivity Disorder (ADHD) and Oppositional Defiant
Disorder. A.K. was referred to Inland Regional Center (IRC). He would get upset and
hit his head on the floor or wall. This frequently occurred after visits with parents. CFS
recommended terminating reunification services and setting a section 366.26 hearing,
with adoption as the recommended permanent plan. A.K. and A.J.J. had been living with
AuJ since December 4, 2013. A.J. was initially placed with her paternal grandmother on
December 4, 2013, and moved to AuJ’s home on May 15, 2014. The children were doing
well in their placement, and AuJ and her husband wanted to adopt them.
At the six-month review hearing in June 2014, CFS requested the court to suspend
visitation because of A.K.’s negative behavior after visits. The court ordered parents to
visit separately, as requested by parents’ attorneys, because it was unclear which parent
A.K. was reacting to. Two and a half weeks later, at the visitation review hearing, CFS
7 reported that father’s visits were appropriate but mother was “‘High on Meth’” when she
arrived for her last visit. After the visit, A.K. hit, screamed, and disobeyed. The court
ordered that the children not be forced to attend visits and continued separate visitation.
The court also ordered mother to test for drugs that day. She tested positive for
amphetamines.
CFS reported in July 2014, that mother had attended group services at Inland
Valley Recovery Services (IVRS). She tested positive for drugs on July 13, 2014, and
twice failed to test for drugs. Father completed a domestic violence prevention program
and 12-session parenting program. Father tested positive for drugs in February and
March 2014, and failed to show for random testing several other times. In July 2014, he
enrolled in a 91-day substance abuse treatment program, with a projected completion date
of September 30, 2014. Father also attended 12 therapy sessions between January 2013
and April 2014. Parents had moved out of their tent in AsJ’s backyard and were living in
a car. Parents’ visits were appropriate but A.K.’s behavior continued to worsen after
visiting with parents. CFS recommended terminating reunification services.
At the contested six-month review hearing on July 16, 2014, CFS changed its
recommendation to continuing reunification services for father. The court found mother
had made no progress and had recently tested positive for drugs. The court therefore
terminated mother’s reunification services but continued services for father. The court
ordered separate visitation to continue for parents, with visitation for mother once a
week, for one hour, and visitation for father once a week, for two hours. Because A.K.’s
8 behavior continued to worsen after mother’s visits, the court found mother’s visits with
A.K. detrimental and suspended them.
At a nonappearance visitation hearing in September 2014, the court indicated that
mother was homeless but continued to visit A.J.J. once a week. A.J. said she wanted to
resume visiting with mother. A.K.’s behavior had improved since visits with mother had
stopped. The caretaker believed mother’s visits would negatively impact A.K. CFS
recommended mother only visit A.J. and A.J.J. and the visits be closely monitored. The
court ordered visitation between A.K. and mother remain suspended. The court ordered
supervised visitation between mother and A.J. and A.J.J. take place at the CFS office for
one hour, twice a month.
Twelve-Month Status Review Hearing
CFS reported in its 12-month status review hearing report filed in October 2014,
that father claimed he was on the verge of completing an IVRS substance abuse treatment
program. Father, however, refused to consent to release to CFS information regarding his
drug treatment. Father had four therapy sessions. He had not demonstrated sobriety. He
had positive drug test results and several “no shows.” His visits with the children had
been difficult. A.J. wrote mother a letter in September 2014, stating she wanted to
remain in foster care with AuJ and her husband, but still wanted visits with parents.
Father admitted to “several decades” of substance abuse. He had been sober
currently for only two months. Father’s therapist recommended he continue therapy
because of the short duration of his treatment and sobriety, and the complexity of his
issues. In September 2014, staff at IVRS stated concerns about father’s sobriety and
9 recommended he continue in the program because he had not remained sober. It
appeared he had traded methamphetamines for prescription drugs. Father had three
positive drug tests and three no-shows between July and October 2014.
Parents married in September 2014. As of October 2014, mother was about 10
months pregnant. Father believed the child might be his. Mother said she and father
continued to have a problematic relationship even though they recently married. CFS
observed parents having verbal altercations. Mother had accused father of not being truly
sober. A.J. exhibited some behavioral and emotional problems but had much improved,
with intensive services, including therapy and psychiatric evaluations. A.J.J. also
received services, including therapy to address depressive symptoms when mother’s
visits resumed. A.J.J. was doing better. A.K. vacillated between being easy going and
calm tempered, and having an explosive temper.
Since mid July 2014, father had supervised visits once a week for two hours.
Father provided CFS with certificates of completion of drug treatment at IVRS, a
parenting course in 2014, completion of substance abuse treatment in 2012, completion
of five parenting courses between 2010 and 2011, and completion of a job-seeking
program in 2008. He also provided documents showing attendance at therapy sessions,
Narcotics Anonymous (NA), and anger management classes. CFS reported that despite
receiving these services, father had not demonstrated he had benefited from these
services. Father continued to struggle to maintain sobriety and continued to
inappropriately discipline the children. In addition, in October 2014, father refused to
10 consent to necessary therapy for A.J.J., and did not have stable employment or adequate
housing and income.
CFS recommended in its December 2014 addendum report that the court terminate
father’s reunification services and set a section 366.26 hearing, with a recommended
permanent plan of adoption. CFS reported that on November 14, 2014, father “popped”
A.J.J. in the mouth at the end of a supervised visit in response to A.J. and A.J.J. teasing
father. CFS was also concerned about father’s ongoing use of pain medications. In
addition, father had tested positive for drugs in October and November 2014. CFS stated
that father exhibited aggressive behaviors, had not benefited from reunification services,
and had demonstrated poor impulse control. He was easily annoyed and very defensive.
At the 12-month status review hearing on December 11, 2014, father denied he hit
A.J.J. in the mouth in anger during a visit. Father explained that he put his hand on
A.J.J.’s mouth to silence him because father was trying to hear the person who was
signing him out for visitation. When father put his hand to A.J.J.’s mouth, A.J.J. said,
“What?” and father said, “I am trying to hear the lady.” A.J.J. then stopped yelling.
Father testified he had participated in a parenting course, attended 12 sessions of
individual counseling, attended a 12-session anger management program, and completed
a 12-week outpatient program. Father intended on continuing to attend NA and AA
meetings but was no longer participating in counseling. The CFS social worker testified
father’s therapist recently told her that father’s therapy was terminated because father
repeatedly gave excuses for not attending therapy. Father believed he had completed his
plan, although he had not enrolled in an aftercare substance abuse program because he
11 was providing round-the clock care of his mother. Since October 2014, father had been
living with his mother and employed as her caretaker seven days a week, 24 hours a day.
She had cancer.
Father was married to mother. He was proud of her for graduating the past week
from IVRS substance abuse programs. Father said he had been suffering from a painful
torn rotator cuff injury and was going to undergo surgery for it in January or February
2015. Father took prescribed medication for the pain. He was taking Xanax and
Seroquel for stress but was trying to reduce consumption of these drugs, and was
currently only taking Seroquel. He had also taken hydrocodone, Percocet, and
OxyContin for his arm pain. Father tested positive for opiates and benzodiazepine.
The court found father had made no progress in receiving more frequent visitation
and visits remained supervised. Father continued to discipline the children by spanking
and hitting them in the mouth. The court concluded that even assuming father had
remained sober recently, it was only for a short period of time and he had not completed
aftercare. Because father’s progress had been minimal, the court terminated his
reunification services and set a section 366.26 hearing. The court authorized supervised
visitation for both parents twice a month for two hours, with the exception that mother’s
visitation with A.K. remained suspended.
On December 11, 2014, father filed a notice of intent to file a writ petition
challenging the order of December 11, 2014, terminating his reunification services and
setting a section 366.26 hearing (case No. E062480). This court dismissed father’s writ
12 petition in February 2015, upon his attorney’s request for dismissal based upon there
being no justiciable issues of merit.
Mother’s section 388 Petition
In April 2015, mother filed a section 388 petition, seeking to modify the order of
June 3, 2014, terminating her reunification services. The record shows the court
terminated mother’s reunification services on July 16, 2014, not June 3, 2014. In her
section 388 petition, mother requested custody of the children or, alternatively,
reinstatement of reunification services. Mother alleged she had addressed the issues that
led to the children’s removal. Mother attached certificates of completion dated
December 2014, of a 12-hour parenting class; an IVRS alcohol and drug outpatient
treatment program; and a 12-hour anger management program. Mother also provided
documents showing she had completed one out of 12 sessions of a parenting education
course, and was currently participating in ongoing IVRC individual counseling. Mother
began therapy in September 2014, and had attended nine sessions. Mother had enrolled
in an IVRC aftercare program on December 23, 2014, and had attended 6 out of 16
sessions.
Mother stated in her section 388 petition that it would be in the children’s best
interests to grant the petition because her children remained bonded to her, knew her, and
loved her. Mother continued to visit them consistently and the children enjoyed her
visits.
13 The juvenile court summarily denied mother’s section 388 petition on the grounds
it did not state new evidence or a change of circumstances, and granting the petition
would not promote the best interests of the children.
Section 366.26 Hearing
CFS reported in its section 366.26 hearing report that A.J. was taking medication
for ADHD and doing really well in school. She exhibited some behavioral and emotional
concerns but had improved. A.J. participated in therapy and psychiatric evaluations and
had completed a Wraparound program. A.J.J.’s teachers were arranging for an
Individualized Education Plan (IEP) for him because he appeared to have developmental
delays. A.J.J. was participating in individual therapy to address depressive symptoms,
usually surfacing when mother visited him. He was currently doing better. During the
past eight months, A.K. had been attending individual therapy and parent child
interactive therapy with his caretaker to assist A.K. with behavioral issues, including an
explosive temper.
The children were attached to their prospective adoptive parents, AuJ and her
husband, who were also very attached to the children and loved them as their own. AuJ
and her husband had two of their own children who lived with them, and cared for the
children’s three-month-old brother, who had also been detained by the court in a separate
case. A.J. and A.J.J. indicated they were happy AuJ wanted to adopt them. The children
have lived with AuJ since December 4, 2013, and AuJ has known them since birth. A.J.
viewed AuJ and her husband as her parents. AuJ and her husband were willing to allow
the children to maintain a relationship with parents as long as visits were supervised and
14 appropriate. AuJ acknowledged her concern, however, regarding A.K.’s history of
violent and aggressive behavior. Parents continued to participate in closely supervised
visitation with the children. CFS recommended terminating parental rights and placing
the children with their prospective adoptive parents.
At the contested section 366.26 hearing on May 16, 2015, A.J. was almost 12
years old, A.J.J. was eight, and A.K. was two years old. During the hearing, father
testified he visited the children every week until the court terminated his reunification
services in December 2014. He currently had supervised visitation with them every other
week for two hours a week. He nevertheless believed he held a parental role. The
children were happy to see him, gave him a hug, and called him “Dad.” When the visits
ended, the children would tell him they loved him. At the last visit, A.J. told father she
could not wait until she could go home with him. While living with AuJ, A.J. used to
contact father daily on her cell phone but this ended when, during a visit, father took her
phone away for disciplinary reasons.
Father conceded AuJ had been parenting the children for a year and a half, and the
children went to her when hurt or when they had a problem. A.J.J. and A.K. had lived
with mother continuously until they were removed from her custody in September 2013.
A.J. was out of her custody once before, for three years between the ages of six and nine
years. Mother resumed parenting A.J. when father brought her from Washington in May
2013. Father requested the court to order the least restrictive permanent plan of legal
guardianship.
15 Mother testified her relationship with A.J. had improved. A.J. would demand
mother’s attention during visits. Mother was currently visiting A.J. and A.J.J. for only an
hour, every other week. During visits, A.J. told mother about school and her friends.
A.J. liked school but did not discuss her classes or teacher. Sometimes A.J. would ask
mother for advice about school issues. The children told mother they loved her. They ate
together, talked and sometimes played a game during visits. During the children’s last
visit, they privately told the social worker they wanted to go home with mother. Mother
was agreeable with placing the children in a guardianship but did not want adoption,
resulting in termination of her parental rights.
The social worker, Maria Madrigal, testified she was told by another social worker
during a visit that the children wanted to talk with Madrigal. In a separate visitation
room, A.J. told Madrigal she was upset with the person monitoring the visit because she
was too stern. A.J. did not say she wanted to go home with mother. A.J. and the other
children only expressed a desire to be adopted.
At the section 366.26 hearing, the parties stipulated to a statement by A.J., rather
than requiring her to testify. A.J.’s stipulated statement stated that she enjoyed visiting
with parents but wanted to stay with AuJ, whom A.J. considered her parent. A.J. wanted
to be adopted by her because it was permanent and safe. A.K. would “throw a fit” if AuJ
left the room, and A.K. had not visited with mother since before Christmas 2014.
The court found that, although parents visited the children regularly, there was no
evidence that terminating parental rights would be detrimental to the children. The
evidence indicated parents were semi-frequent visitors but their relationship with the
16 children did not fill a parental role to such a degree it outweighed the well-being of the
children in gaining a permanent home through adoption. In addition, A.J. and A.J.J. had
requested adoption and permanency. The court found the children were adoptable and
the parental benefit exception to adoption did not apply. The court ordered parental
rights terminated, with adoption the children’s permanent plan.
III
Mother contends the juvenile court abused its discretion by summarily denying her
section 388 petition.
A. Procedural Background
On April 1, 2015, mother filed a section 388 petition, seeking to modify the order
of July 16, 2014, terminating her reunification services. Mother alleged she had
addressed the issues leading to the children’s removal. Mother attached certificates of
completion from December 2014, of a 12-hour parenting class; an IVRS alcohol and drug
outpatient treatment program; and a 12-hour anger management program. Mother also
provided documents showing she had completed one out of 12 sessions of a parenting
education course, and was currently participating in ongoing IVRC individual counseling.
Mother began therapy in September 2014, and had attended nine sessions. Mother
enrolled in an IVRC aftercare program in December 2014, and had attended six out of 16
sessions. Mother also alleged in her section 388 petition that it would be in the children’s
best interests to grant her petition because the children remained bonded to her, knew her,
17 and loved her. Mother continued consistently to visit them and the children enjoyed her
On April 3, 2015, the court summarily denied mother’s section 388 petition on the
grounds mother’s section 388 petition did not provide new evidence or any evidence of a
change of circumstances, and granting the petition would not promote the best interests of
the children.
B. Applicable Law
Under section 388, a parent may petition the juvenile court to modify its previous
orders upon the grounds of new evidence or changed circumstances. (§ 388, subd. (a).)
The juvenile court may summarily deny a section 388 petition if the petition fails to make
a prima facie showing either (1) of a change of circumstances or new evidence, or (2) that
the requested change would promote the best interests of the child. (In re Justice P.
(2004) 123 Cal.App.4th 181, 188-189; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-
1414.) A hearing “is only to be held if it appears that the best interests of the child may
be promoted by the proposed change of order, which necessarily contemplates that a
court need not order a hearing if this element is absent from the showing made by the
petition.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 807.) We review the summary
denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97
Cal.App.4th 454, 460 (Angel B.).)
C. No Prima Facie Showing of Changed Circumstances
Mother urges that she made out a proper case for modifying the court’s order of
July 16, 2014, terminating her reunification services. She filed her petition in April 2015,
18 eight and a half months after the July 16, 2014, order. During that period, mother
attended various courses and programs addressing her substance abuse, parenting, anger
management, and relationship issues, but mother did not present any evidence of changed
circumstances demonstrating that visitation with A.J. and A.J.J. no longer needed to be
supervised, or that visitation with A.K. should be reinstated.
Mother had minimal visitation. At the July 16, 2014, hearing, the court reduced
mother’s visitation to one hour every other week and visits remained supervised for both
parents. During this very limited visitation time, mother had not demonstrated she was
able to implement the skills recently taught to her and appropriately parent the children.
Visitation with A.K. was never reinstated and mother’s visitation with A.J. and A.J.J.
remained brief and closely supervised. A.J. had been removed once before. Furthermore
mother’s completion of substance abuse treatment was relatively recent.
There was also little, if any, evidence that mother’s relationship with father had
improved. Mother had not demonstrated she had resolved her relationship issues with
father or that she had an independent source of income and was able to provide a stable
home for the children. She recently moved in with father, who was living with his
mother while employed as his mother’s round-the-clock caregiver.
Mother argues that, had the juvenile court granted a hearing on her section 388
petition, rather than summarily dismissing it, she would have presented evidence
demonstrating what she had learned from receiving multiple services and how she
benefited from the services. But mother had the burden of, at a minimum, making a
prima facie showing of changed circumstances and she did not meet this low threshold.
19 D. No Prima Facie Showing of Best Interests of the Children
Even if mother provided sufficient evidence of changed circumstances, she did not
meet her burden of showing that granting her section 388 petition was in the children’s
best interests. Mother also did not make a prima facie showing that granting her section
388 petition and reinstating reunification services or returning the children to mother was
in the children’s best interests. “[I]f a parent makes a prima facie showing of a change of
circumstance such that a proposed change in custody might be in the child’s best interest,
then the juvenile court must hold a hearing.” (Angel B., supra, 97 Cal.App.4th at p. 461.)
Whether mother made a prima facie showing entitling her to a hearing depends on the
facts alleged in her petition, as well as undisputed facts established by the court’s own
file, such as the children’s ages, the nature of their existing placement, and when the
children became juvenile dependents. (Ibid.)
In Angel B., supra, 97 Cal.App.4th 454, the court affirmed the trial court ruling
denying the mother a hearing on her section 388 petition based on findings that the
mother failed to make the requisite prima facie showing of changed circumstances and
that the proposed change in custody was in the child’s best interest. The Angel B. court
reasoned that, “there was no evidence that Mother was ready to assume custody of Angel
or provide suitable care for her; while she had completed the drug program, the time she
had been sober was very brief compared to her many years of drug addiction (a concern
expressed by the social worker), and in the past she had been unable to remain sober even
when the stakes involved were the loss of her other child. Nor was there evidence that
she had a housing situation suitable for Angel, or any arrangements for child care while
20 she worked. And . . . there was no evidence that Angel preferred to live with Mother
rather than with the foster family.” (Angel B., at p. 463.)
Likewise, here, there was no evidence showing that granting mother’s section 388
petition was in the children’s best interests. There was no evidence that mother was
ready to assume custody of the children or provide suitable care for them, particularly
A.K.; while she had completed a drug program, the time she had been sober was very
brief compared to her many years of drug addiction, and in the past she had been unable
to remain sober even when the stakes involved were the loss of A.J. Nor was there
evidence that mother had stable housing suitable for the children. There also was
evidence that A.J. wanted to be adopted by AuJ, and A.J.J. was willing to be adopted by
his prospective adoptive family. As to A.K., mother had not had visited with him for
over eight months, since visitation was suspended in July 2014, and A.K. had been
removed from parents when he was only 11 months old. A.K. had lived with his
prospective adoptive parents for the majority of his life.
In addition, as explained in Angel B., “a primary consideration in determining the
child’s best interest is the goal of assuring stability and continuity. [Citation.] When
custody continues over a significant period, the child’s need for continuity and stability
assumes an increasingly important role. [Citation]. That need often will dictate the
conclusion that maintenance of the current arrangement would be in the best interests of
that child.” (Angel B., supra, 97 Cal.App.4th at p. 464.)
The court in Angel B. noted that the burden of proof “is a difficult burden to meet
in many cases, and particularly so when, as here, reunification services have been
21 terminated or never ordered. After the termination of reunification services, a parent’s
interest in the care, custody and companionship of the child is no longer paramount.
[Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency
and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster
care is in the best interest of the child [citation]; such presumption obviously applies with
even greater strength when the permanent plan is adoption rather than foster care. 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, what is
in the best interest of the child.” (Angel B., supra, 97 Cal.App.4th at p. 464.)
Here, mother’s section 388 petition was made on the eve of the section 366.26
hearing. At that point, the children’s interest in stability was the court’s foremost concern
and outweighed any interest in reunification. The prospect of an additional six months of
reunification to see if mother would and could do what was required to regain custody
would not have promoted stability for the children, and thus would not have promoted
their best interests. (Angel B., supra, 97 Cal.App.4th at p. 464.)
In Angel B., the facts presented by the section 388 petition showed that the mother
was “doing well, in the sense that she has remained sober, completed various classes,
obtained employment, and visited regularly with Angel.” (Angel B., supra, 97
Cal.App.4th at pp. 464-465.) The Angel B. court also assumed, for the sake of this
appeal, that the mother’s resolve was different, and that she would be able to remain
sober, remain employed, become self-supporting and obtain housing. Even so, the Angel
B. court found that such facts were not legally sufficient to require a hearing on her
22 section 388 petition. (Angel B., at pp. 464-465.) The Angel B. court reasoned that “there
is a rebuttable presumption that, in the absence of continuing reunification services,
stability in an existing placement is in the best interest of the child, particularly when
such placement is leading to adoption by the long-term caretakers. [Citation.] To rebut
that presumption, a parent must make some factual showing that the best interests of the
child would be served by modification.” (Id. at p. 465.)
Here, as in Angel B., mother did not make such a showing. She did not present
any evidence that returning the children to mother or delaying adoption by providing
mother with additional reunification services was in the children’s best interests. We
therefore conclude the juvenile court did not abuse its discretion in summarily denying
mother’s section 388 petition on the grounds mother had not made a prima facie showing
of changed circumstances or that granting her section 388 petition was in the children’s
best interests.
IV
BENEFICIAL PARENT RELATIONSHIP EXCEPTION
Father contends the juvenile court abused its discretion by rejecting the beneficial
parent relationship exception to adoption under section 366.26, subdivision (c)(1)(B)(i).
Father argues the juvenile court failed to consider that terminating his parental rights,
with a plan of adoption, allowed for the possibility the children, as a sibling group, would
be separated from each other. Father asserts this possibility of separation of the sibling
group provides a compelling reason against terminating his parental rights.
23 A. Applicable Law
At the section 366.26 hearing, the juvenile court’s task is to select and implement
a permanent plan for the dependent child. When there is no probability of reunification
with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re
Marina S. (2005) 132 Cal.App.4th 158, 164.) If the juvenile court finds by clear and
convincing evidence that a child is likely to be adopted, the juvenile court must terminate
parental rights, unless one of several statutory exceptions applies. (§ 366.26, subd. (c)(1);
Marina S., at p. 164.)
Under section 366.26, subdivision (c)(1)(B)(i), the beneficial parent relationship
exception may apply when a parent has “maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship.” (§ 366.26, subd.
(c)(1)(B)(i); see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden
to show that the statutory exception applies”].) 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.” (Angel B., supra, 97 Cal.App.4th at p.
466.)
No matter how loving and frequent the contact, and notwithstanding the existence
of an “emotional bond” with the child, “the parents must show that they occupy ‘a
parental role’ in the child’s life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In
re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The relationship that gives rise
24 to this exception to the statutory preference for adoption “characteristically aris[es] from
day-to-day interaction, companionship and shared experiences. Day-to-day contact is not
necessarily required, although it is typical in a parent-child relationship.” (In re Casey D.
(1999) 70 Cal.App.4th 38, 51.) To overcome the preference for adoption, the parent must
show that severing the parent-child relationship “would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly harmed. [Citations.]
A biological parent who has failed to reunify with an adoptable child may not derail an
adoption merely by showing the child would derive some benefit from continuing a
relationship maintained during periods of visitation with the parent.” (Angel B., supra,
97 Cal.App.4th at p. 466.)
Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has
repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary
case that preservation of the parent’s rights will prevail over the Legislature’s preference
for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; see also
In re K.P. (2012) 203 Cal.App.4th 614, 621.) The juvenile court may consider the
relationship between a parent and a child in the context of a dependency setting, but the
overriding concern is whether the benefit gained by continuing the relationship between
the biological parent and the child outweighs the benefit conferred by adoption. (In re
Lukas B. (2000) 79 Cal.App.4th 1145, 1155-1156; In re Autumn H., supra, 27
Cal.App.4th at p. 575.)
B. Standard of Review
California courts have disagreed as to the applicable standard of review for an
25 appellate challenge to a juvenile court ruling rejecting a claim that an adoption exception
applies. We agree with the view expressed in In re K.P., “that review of an adoption
exception incorporates both the substantial evidence and the abuse of discretion standards
of review.” The substantial evidence standard of review applies to the factual
determination of whether a beneficial parental or sibling relationship exists. (In re K.P.,
supra, 203 Cal.App.4th at p. 621.) The abuse of discretion standard of review applies
when determining whether the existence of that relationship “constitutes ‘a compelling
reason for determining that termination would be detrimental to the child.’” (Id. at p.
622.)
C. Discussion
Father has not demonstrated that his relationship with the children is so significant
that its termination would greatly harm the children, or that his relationship outweighs the
well-being the children would gain in a permanent, stable adoptive home with AuJ and
her husband. (Angel B., supra, 97 Cal.App.4th at p. 466.) The children should not be
deprived of living in a permanent, stable home through adoption by their prospective
adoptive parents, when father has not met the needs of the children and has not
maintained a parental role in their lives or established the ability to provide them with a
stable home environment.
“The factors to be considered when looking for whether a relationship is important
and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the
parent’s custody, (3) the positive or negative effect of interaction between the parent and
the child, and (4) the child’s particular needs. [Citation.] While the exact nature of the
26 kind of parent/child relationship which must exist to trigger the application of the
statutory exception to terminating parental rights is not defined in the statute, “the
relationship must be such that the child would suffer detriment from its termination.”
(Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted.)
Although the evidence indicated that father acted lovingly and appropriately with
the children during most visits, he failed to demonstrate that the children’s relationship
with him was so significant that its termination would cause the children significant
detriment. Father’s visits throughout the juvenile dependency proceedings were brief and
closely supervised, with no progress in liberalizing the duration, frequency, or
supervision. Initially, his supervised visits were once a week, for two hours a visit. In
June 2014, the court ordered parents to visit separately and in July 2014, the court
suspended mother’s visits with A.K. because A.K. had exhibited severe adverse
behaviors after visiting with mother. Father’s visits were reduced in December 2014 to
twice a month, for two hours a visit. During a visit in November 2014, father had
become upset at A.J.J. and resorted to hitting him in the month at the end of a visit.
In addition, A.J. had been removed from parents twice; the first time for three
years when she was between the ages of six and nine, and again in the instant case, after
returning to parents and living with them for about six months. Also, within the past
year, parents continued to have relationship problems with each other, creating a greater
likelihood of instability if the children were returned to parents.
On the other hand, at the time of the section 366.26 hearing, the children had been
living with their prospective adoptive parents for a year and a half and were happy living
27 with them. The children were together, they had bonded with AuJ and her family, and
A.J. and A.J.J. had expressed the desire or willingness to be adopted. Although A.K. was
too young to express his desires, he was part of the sibling group father had told the
social worker he wanted kept together.
The totality of evidence supported the juvenile court’s finding that there would be
no significant detriment in terminating father’s parental rights. At the time of the section
366.26 hearing, father did not hold a parental role or have a substantial, positive
emotional attachment such that the children would be greatly harmed by termination of
his parental rights. (Angel B., supra, 97 Cal.App.4th at p. 466.) Furthermore, AuJ and
her husband were willing to allow the children to maintain a relationship with the parents.
Father argues that, although he is not asserting the beneficial sibling relationship
exception to adoption applies, termination of his parental rights would be detrimental to
the children because there would be the possibility the children might be separated from
each other during the adoption process. This possibility is founded on pure speculation,
without any supporting evidence. The three children were placed as a sibling group with
father’s adult daughter, AuJ, and her husband. The children’s three-month-old brother
was also placed with AuJ and her husband. When in May 2014 the social worker
discussed with father recommending adoption for the children, father told the social
worker he did not care if AuJ adopted the children or had guardianship of them, as long
as the children stayed together.
Since almost the inception of the juvenile dependency proceedings, the children
have lived with AuJ and her husband, who are willing to adopt the children. There is no
28 evidence that the children would not be adopted as a sibling group by AuJ or that they
will at some point be separated. In the absence of any evidence supporting such a
speculative outcome, the mere possibility the sibling group might be separated if parental
rights are terminated, is not a legally valid basis for applying the beneficial parent
relationship exception.
Although after termination of their reunification services, parents attempted to
overcome factors leading to the removal of the children and visited the children relatively
consistently throughout the proceedings, the juvenile court did not abuse its discretion in
rejecting the beneficial parent relationship exception. The juvenile court reasonably
concluded that parents’ relationship with the children did not outweigh the benefits of
adoption of the children by AuJ and her husband, who had provided the children with a
stable and loving home for over a year and a half, and were willing to adopt the children.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
MILLER J.