Filed 9/11/15 In re C.R. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re C.R., a Person Coming Under the Juvenile Court Law. D067525 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ14663) Plaintiff and Respondent,
v.
R.P. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Michael
Imhoff, Judge. Affirmed.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and
Appellant R.P.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant D.M. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
R.P. (mother) appeals from the trial court's summary denial of her Welfare and
Institutions Code1 section 388 petition requesting that C.R. (minor) be moved from the
home of a nonrelated extended family member (NREFM) and placed with a maternal
aunt. Mother also appeals the court's denial of her motion to continue the contested
section 366.26 hearing, which she made on day of the hearing, and from its refusal to
apply the beneficial parent-child relationship exception to adoption.
Minor's father, D.M. (father), separately appeals from the court's refusal to apply
the beneficial parent-child exception and from its order terminating parental rights.
Affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Minor was born in January 2010. In May 2011, father was arrested on drug
charges. Father posted bail. About a month later, police stopped the car father was
driving after father crossed over a double yellow line into oncoming traffic. During the
stop, police detected a "strong order of marijuana" in the passenger compartment of the
car. During a consent search, police found about one pound of marijuana in father's
backpack, about 100 prescription pills and $1,972 in cash. Police next searched father's
home, where among others mother and minor resided, and found an additional two
pounds of marijuana and 500 more pills. The two pounds of marijuana were found to be
1 All further statutory references are to the Welfare and Institutions Code unless noted otherwise. 2 easily accessible to minor. Father was arrested on drug charges, and mother was arrested
and later cited for child endangerment.
According to mother, father was released from jail in January 2012. Upon his
release, mother admitted to using methamphetamine with father. On June 7, 2012, with
mother and minor in his car and while on probation, father was involved in a "road rage
incident" with another driver. During the incident, father displayed what appeared to the
other driver to be a "black handgun." Police responded, located a shoebox under a bush
in front of father's stopped car and inside found a black BB gun that looked like a replica
handgun, methamphetamine, marijuana and drug paraphernalia. Father was arrested on
charges of child endangerment, possession and transportation of controlled substances
and drug paraphernalia. Personnel from San Diego County Health and Human Services
Agency (agency) responded to the arrest scene, took custody of minor and detained him
in a foster home. That was the last time minor was under the care of either mother or
father.
In connection with the agency's June 11, 2012 detention report, mother admitted
smoking methamphetamine on June 6, 2012, the day before father's arrest. When asked
why minor presumptively tested positive for methamphetamine, mother explained that
while she was driving on June 5, 2012, father smoked methamphetamine while minor
was in the car. Mother told an agency social worker she wanted father in minor's life but
was nonetheless frustrated by father.
3 Father, who was released from custody, denied using drugs around minor. Father
explained minor's presumptive positive test for methamphetamine by the fact that mother
still breastfed minor and that "she uses." Father noted, "I'm sure she [i.e., mother] left
that out." Father admitted using methamphetamine with mother three to five times per
week and admitted at times they were under the influence of the drug while caring for
minor, although father stated on those occasions they were " 'not out of [their] minds or
anything.' "
The agency on June 11, 2012 filed a section 300, subdivision (b) petition on behalf
of minor, alleging he was at substantial risk of suffering serious physical harm or illness
as a result of (1) father's inability to supervise or protect minor adequately, stemming
from the June 7, 2012 incident, and (2) both mother's and father's ongoing drug use. On
June 12, 2012, the court sustained the agency's section 300 petition, declared minor a
dependent and placed minor in out-of-home care.
The agency in its July 2, 2012 jurisdiction/disposition report recommended that
minor remain in foster care; that mother and father both receive reunification services;
and that they have liberal, supervised visits with minor. Mother and father were both
interviewed in connection with that report. In one interview, mother stated she wanted
minor placed with the maternal parents until she was able to reunify with minor. The
July 2 report notes that a few days later, mother showed up 45 minutes late for an agency
interview, which was rescheduled.
4 Mother again arrived late for the rescheduled agency interview. In addition, she
brought to the interview a 17-year-old high school student and suggested the student was
a "placement option" for minor because the student was in a " 'continuation school' " and
thus was home and was able to watch minor during the day, while living at the student's
mother's house. When asked if the student had a relationship with minor, mother
responded, " 'Yeah, they have met a few times, but [minor] is really close to him.' "
Mother presented at the rescheduled interview as being anxious and unfocused.
Mother admitted using marijuana and methamphetamine since she was 16 years old. She
also stated she completed a drug diversion program when she was 20, but she relapsed
when she met father.
At the next scheduled interview, the July 2 report noted mother again showed up
45 minutes late. Over the next few days, the agency left mother two detailed messages
requesting a return call. Mother, however, did not call back. The report also noted
mother often was late to in-person visits with minor and missed over six phone contacts
with minor.
The July 2 report noted mother was accepted into the program at Serenity House
on June 14, 2012, but she did not return as instructed. The administrator of the program
gave mother a second chance to start the program, and mother returned on June 18, 2012.
However, mother did not stay at the facility the following weekend, as required, and her
drug test was positive for marijuana and alcohol. Mother also violated the rules of the
5 program by having a male guest stay overnight in her room. The administrator of the
program referred mother to a detoxification program.
The July 2 report confirmed minor tested positive for methamphetamine at the
time of his removal (i.e., June 7, 2012) from mother and father. Mother's
June 8, 2012 drug test was positive for methamphetamine and marijuana.
According to the July 2 report, father began to use marijuana when he was 15
years old, and it was his drug of choice. Father admitted to being addicted to Oxycontin
when he was arrested in June 2011, but he did not seek any drug treatment either during
his eight-month incarceration or after his release in January 2012. Father stated he
expected to be arrested soon for violating parole. Father also stated he wanted minor
placed with the paternal grandfather. The paternal grandfather, however, told an agency
social worker he was not then in a position to care for minor.
In its July 23, 2012 addendum report, the agency noted it had tried multiple times
to contact mother. Mother on July 11, 2012 failed to show up for drug testing. On the
few occasions mother responded to the multiple voicemail messages left by an agency
social worker, mother stated she was attempting to enroll in a treatment program but did
not say where or when she would be enrolling.
The July 23 addendum also included myriad examples of mother missing visits
and/or being late in visits and/or phone calls with minor and of the multiple excuses she
made as a result, including: her work schedule; her phone being broken; and her phone
not being charged. The report noted mother admitted to lying about the reasons she was
6 unable to visit minor. The report also noted minor was losing interest as a result of his
mother's inconsistent visits.
On July 23, 2012, the court made a true finding on the petition, declared minor a
dependent and removed him from mother and father. The court placed minor in licensed
foster care and ordered reunification services for mother and father.
In its January 23, 2013 status review report, the agency recommended termination
of mother's services and the scheduling of a section 366.26 hearing. Minor then was
thriving while living with J., a NREFM. Due to his incarceration, father was unable to
receive any services.
The January 23 report noted mother up until recently had been living a transient
lifestyle but had since moved in with her parents. Mother was accepted into an inpatient
program on July 23, 2012, but she "again no showed." The program made another
referral on August 14, 2012, and mother failed to follow through. Mother also failed
multiple times to show up for appointments at the program and, when she met with the
program coordinator in late September 2012, mother stated she wanted to participate only
in an outpatient program. Mother also resisted the efforts of agency social workers and
others to assist her in obtaining treatment in multiple other programs, including a
detoxification program. Mother at the time was on a waiting list for an inpatient
program. The report noted mother on multiple occasions, including in early January
2013, failed to show up for drug testing as requested by the agency. Mother also failed to
participate in individual counseling despite two referrals by the agency.
7 The January 23 addendum also noted mother again, at least initially, was
inconsistent both in her in-person and phone visits with minor, as she was often late or
did not show up at all. When there were visits, that report noted they often went "fairly
well" and that minor and mother both said they loved each other and were affectionate
with each other. Minor then called mother his " 'momma.' "
At the time of the January 23 status review report, J., the NREFM, stated she did
not want to adopt minor but was willing to provide him long-term care. The maternal
grandparents were evaluated, but the agency discovered issues related to "criminal
history, CPS history as well as the maternal grandparents having two children that reside
in the home that ha[ve] molest history and substance abuse history." The contested
section 366.21 hearing was set for March 11, 2013; the hearing was later continued to
March 21, 2013.
In its March 11, 2013 addendum, the agency reported that mother's services at the
visitation center were terminated because of missed visits; that mother showed up to an
individual therapy session under the influence of a controlled substance; that mother was
in denial of her addiction to drugs and instead blamed others for her circumstances; and
that mother on February 26, 2013 was arrested for being under the influence of a
controlled substance. The court at the March 21, 2013 contested hearing terminated the
treatment plans of mother and father and set the matter for a section 366.26 hearing.2
2 This court on July 1, 2013 denied the writ petition of father, joined by mother, claiming he was not provided with reasonable reunification services. (D063633.) 8 The agency in its July 18, 2013 section 366.26 report recommended termination of
parental rights and a permanent plan of adoption for minor. It noted father had been
released from prison on May 30, 2013 and was then enrolled in a six- to nine-month drug
treatment program. Father participated in three supervised visits with minor from early
June through early July 2013. At the end of each visit, minor separated easily from
On July 24, 2013, father filed a section 388 petition seeking to vacate the section
366.26 hearing, reinstate reunification services and begin unsupervised visits with minor.
In support of his petition, father contended he participated in all services available while
incarcerated and he entered a residential drug treatment program that he believed could
be completed in as little as six months. Father also indicated he enrolled in parenting
classes and was evaluated and found not to require mental health treatment services.
The agency opposed the petition. It noted that father had been in treatment for less
than three months; that he had an extensive history of drug use spanning over a decade;
that his treatment program usually required at least nine months; and that to date father
had only attended one parenting class. Because of the fact minor had been removed in
June 2012 and father was in the initial stage of treatment for his long-standing drug
addiction, the agency concluded minor's need for stability of a permanent plan should not
be jeopardized while the father received services, when it not only would take father time
to complete the program but also to demonstrate that he could remain sober in a
noncontrolled environment while holding down a job and parenting minor.
9 In its October 11, 2013 addendum report, the agency sought a continuance to
access minor's paternal grandfather for guardianship. Minor's paternal grandfather
reported he did not come forward earlier because he had a medical issue and because he
wanted to give his son, father, the opportunity to reunify with minor. Minor's paternal
grandfather believed that father was in the process of turning his life around and hoped
one day father could petition the court and obtain custody of minor. Minor and the
paternal grandfather had unsupervised visits that included an overnight visit.
In its October 11 report, the agency noted that mother waited until early
September 2013 to schedule a visit with minor; that mother failed to show for the visit;
and that a record check showed mother was then incarcerated on three outstanding
warrants. A subsequent record check done by an agency social worker toward the end of
September 2013 showed mother was no longer incarcerated, but at the time of the
October 11 report she had yet to contact the agency, although mother did speak to minor
on the telephone. When mother promised minor she would visit him and then did not
follow through, it was reported minor was "disappointed."
Since the July 2013 section 366.26 report, an agency social worker observed 13
visits between minor and father. According to the October 11 addendum, the visits were
positive, minor looked forward to them and was happy to see father. At the end of the
visits, minor easily separated from father. That report further noted father then did not
believe he was ready to be a full-time parent to minor and he was not sure when he would
be ready to do so.
10 On October 11, 2013, the court granted father's section 388 petition, vacated the
section 366.26 hearing and ordered reunification services for father. Minor was placed
with the paternal grandfather in mid-November 2013. In its December 9, 2013 status
review report in connection with a section 366.22 18-month/permanency review hearing,
the agency recommended minor remain placed with the paternal grandfather while father
continued to receive reunification services.
With respect to mother, the December 9 report noted the agency did not know her
whereabouts, although mother called minor two or three times each week. As to father,
that report noted he was visiting minor for a few hours each day at the paternal
grandfather's home; he was drug free; he had signed up to participate in the program's
outpatient aftercare program; and he was still participating in a residential substance
abuse program, where he was on track to graduate in January 2014. The report also noted
minor was doing "very well" in the paternal grandfather's home. The court at the
December 9 hearing continued father's reunification services to the 24-month date.
The agency in its June 9, 2014 status review report recommended father's
reunification services be terminated and minor remain placed in the paternal grandfather's
home. With respect to father, the June 9 report noted that he tested positive for
methamphetamine in April 2014, after father graduated from his treatment program; that
he failed to perform drugs tests for the agency on three separate occasions in May 2014;
and that he failed to contact the agency for nearly two weeks at the same time the agency
was attempting (before it knew about his failed drug test) to arrange a trial placement of
11 minor. Father on May 20, 2014 admitted to an agency social worker he had relapsed and
tested positive in April 2014 for methamphetamine and admitted he had used the drug the
night before the interview. Father agreed to supervised contact with minor and to enroll
in a recovery program.
At the time of the June 9 status report, mother had been incarcerated in April 2014
and again on May 20, 2014. Mother called minor on May 20 from the detention facility.
Before this call, mother had not made telephone contact with minor for over two months
and had failed to show up for a scheduled face-to-face visit with minor.
Father was accepted into drug court on June 11, 2014. He failed to attend hearings
on June 25, July 2 and July 9, 2014, and was terminated as an "unsuccessful participant."
The agency on June 24, 2014 filed a section 387 petition on behalf of minor. In its
June 25, 2014 detention report prepared in connection with the detention hearing/section
387 petition, the agency noted the paternal grandfather was allowing father to reside in
the home with minor and provide unsupervised care of minor, despite the requirement
father's visits be supervised as a result of his relapse. The June 25 report also noted that
father's girlfriend was living in the paternal grandfather's home and providing care to
minor and that there were ongoing instances of domestic violence between father and his
girlfriend witnessed by minor, including one that took place on March 1, 2014 in which
father was arrested. Father's girlfriend admitted she and father argued every day but said
they " 'only [had] gotten physical like maybe like six or seven times.' "
12 The June 25 report described an incident in which an agency social worker made
an unannounced visit to the paternal grandfather's home on June 20, 2014. Father was
found hiding in the closet after father's girlfriend answered the door and let the social
worker inside. The agency social worker confronted father with information learned
from father's probation officer, which showed father had not been truthful with the
agency regarding his living arrangements.
During the unannounced June 20 visit, the paternal grandfather arrived home with
minor. The agency social worker heard minor crying and the paternal grandfather
repeatedly telling minor, " '[G]et the hell out of the car, right now . . . come on get in the
house, now!' " The social worker also witnessed the paternal grandfather throwing
groceries and grabbing minor to get him inside the home. After being surprised by the
social worker's presence in the home, the paternal grandfather admitted he knew about
the domestic violence between father and his girlfriend; he knew minor had witnessed
incidents of domestic violence while in the home; he knew father had relapsed; and he
knew father was not allowed unsupervised visits with minor. The paternal grandfather
admitted there was a " 'problem' " in his home but said, " 'I have to work and I have found
it difficult to care for [minor] without some assistance.' "
Minor was removed and in an emergency placement was placed with his prior
NREFM, J., who had cared for minor from November 2012 to November 2013 and who
had since obtained her foster care license. The court at the June 25, 2014 detention
hearing detained the child in out-of-home care.
13 At the July 25, 2014 contested 24-month subsequent permanency review hearing,
the court terminated father's reunification services and found it would be detrimental to
minor to return minor to either mother or father, both of whom were incarcerated at the
time of the hearing. On September 8, 2014, the court made a true finding on the section
387 petition. The court scheduled the section 366.26 hearing for November 20, 2014.
The agency's November 10, 2014 section 366.26 report recommended that
parental rights be terminated and that minor be freed for adoption. The report noted
father had been arrested in September 2014 for violating a restraining order preventing
him from entering the paternal grandfather's house. The paternal grandfather reported he
had obtained the restraining order because father was violent when using drugs and was
damaging the home and stealing from him. Father had not been in contact with the
agency to request visits with minor since minor was removed from the paternal
grandfather's house on June 20, 2014.
The November 10 report also noted minor was thriving in his current placement
with J., who was very attached to minor, who wanted to adopt minor and who had a
completed home study. To the extent J. was unable to adopt minor, the report noted there
were 75 approved adoptive families in San Diego that would be willing to adopt minor.
Minor, then aged four, verbalized he wanted to stay with J. forever, whom he now called
" 'momma.' "
Since living with J., the November 10 report noted minor had not asked about or
talked about father. The report concluded that there was no significant parental bond
14 between father and minor that would cause harm to minor if severed; that there was no
parent-child bond between mother and minor; and that neither mother nor father met
minor's needs or could be counted on to protect and care for minor. Because minor had
been moved several times already and because he was attached to J. and looked to her as
his parent, the report recommended minor be freed for adoption.
Before the contested section 366.26 hearing, mother filed a section 388 petition
requesting minor be placed with a maternal aunt. The agency opposed the petition. In its
opposition, the agency noted that mother had waited six months since minor was removed
from the paternal grandfather's house to request minor be placed with the aunt; that the
aunt had not maintained contact with minor; that the aunt did not visit with minor; that
the aunt did not call minor; that the aunt had never called to inquire about minor's health
or well-being, despite the fact minor needed surgery for a congenital heart defect; and
that the aunt had never contacted the agency to inquire about minor or the status of his
case. In short, because the maternal aunt had no relationship with minor and because the
minor was thriving in his placement with J., the agency recommended minor remain with
J.
The court continued the hearing on mother's section 388 petition to coincide with
the hearing on the contested section 366.26 petition. The agency in its February 5, 2015
addendum report prepared in connection with the section 366.26 hearing noted mother
began weekly visits with minor in November 2014 and her last visit with minor was in
mid-January 2015, when mother was arrested for a parole violation. Although those
15 visits went well, the report noted mother was inconsistent in demonstrating a "parental
role," in "responding appropriately to [minor's] verbal/non-verbal signals," and in putting
minor's "needs ahead of her own."
As to father, the agency noted he contacted the agency once in mid-November
2014 to schedule a visit but since then had been out of contact with the agency. At the
time of the contested section 366 hearing, father was incarcerated.
At the outset of the February 5, 2015 contested hearing, mother's counsel stated
that earlier that day mother informed counsel she wanted to retain private counsel and
wanted the hearing continued. In denying the continuance, the court noted that the
contested hearing had been pending for at least six to eight weeks;3 that mother had not
officially retained a new attorney; and that given minor's young age and his need to
determine permanency, it was not in minor's best interest to grant the continuance.
With respect to mother's request for an evidentiary hearing in connection with her
section 388 petition, the court found that mother did not make a prima facie showing of
new evidence or changed circumstances or a showing that the requested change in the
court order would serve minor's best interest. After recounting minor's many placements
and the multiple hearings in this case, the court noted mother throughout this time had
been represented by counsel and "had an opportunity at all of the hearings to make her
wish known to the court regarding placement. The maternal aunt's home was approved,
3 According to the record, the contested section 366.26 hearing had actually been set for 11 weeks. 16 and it appears it was a fact that she no contact with [minor]. And that is very important
because that would evidence her desire to be available for the child."
Next, the court in connection with the section 366.26 hearing admitted the
agency's reports, summarized ante. Mother testified that she took care of minor for two
and one-half years; that when they visited, minor called her "mom" and told her at the
end of the visits, " 'Why can't I go with you, mom?' "; and that the court should not
terminate parental rights because the bond between them was "not broken."
After considering the evidence and listening to the argument of counsel, the court
found by clear and convincing evidence that minor was likely to be adopted. The court
found that minor had an established relationship with his current caretaker; that minor
wanted to live permanently with his current caretaker and the caretaker's other foster
child, whom minor referred to as his sister; that minor had been through multiple
placements already; that minor was very intelligent and thus was able to express where he
wanted to live; that the current caregiver wanted to adopt minor and had a completed
home evaluation for adoption; and that if the current caregiver for whatever reason was
unable to adopt minor, there were 75 additional approved prospective adoptive homes
that would be willing to adopt a child with minor's characteristics.
The court also found that termination of parental rights of mother and father would
not be detrimental to minor pursuant to any of the exceptions; that while there were
periods when mother and father (allegedly, as discussed post) had consistent visits with
minor, it was not in minor's best interest to promote or facilitate either a mother-child or
17 father-child relationship; and that mother and father had succumbed to a "lot of other life
issues . . . that [have] subordinated their ability to be there consistently on a day-to-day
basis for their son."
The court further found that whatever benefit may have been conferred upon
minor by the contact with mother and/or father was "greatly outweighed by his need for
stability in placement, which can only be achieved through adoptive placement." The
court thus terminated the parental rights of mother and father.
After its ruling, the court asked minor's court appointed special advocate (CASA)
if she had any comments to make to the court. The CASA noted that while minor loved
his parents, minor was "very happy in his placement and he loves his foster family." The
CASA further noted it would be "detrimental" to take minor away from that environment
and thus concluded the court's ruling was the "right thing to do for the child." At the
conclusion of the hearing, the court designated J., minor's current caregiver, as a
prospective adoptive parent within the meaning of section 366.26, subdivision (n).
DISCUSSION
A. Denial of section 388 petition
Mother contends the court abused its discretion and violated her due process rights
when it denied without a full evidentiary hearing her section 388 petition seeking a
change in minor's placement from J. to the maternal aunt. We disagree.
The dependency statutes balance numerous competing interests, including the
interest in preserving a family unit; the parents' interest in the custody and care of their
18 child; and the child's interest in a stable, permanent relationship with a fully-committed
caretaker. (In re Zacharia D. (1993) 6 Cal.4th 435, 446.) Under the statutory scheme,
our Legislature has given a parent's interest in reunification precedence over a child's
need for stability and permanency up until the time reunification services are terminated
and the case is set for a section 366.26 permanency planning hearing. (Id. at p. 447.)
Once parental " 'reunification services are ordered terminated, the focus shifts to the
needs of the child for permanency and stability.' " (Ibid.) " 'A court hearing a motion for
change of placement at [the permanency planning] stage of the proceedings must
recognize this shift of focus in determining the ultimate question before it, that is, the best
interests of the child.' " (In re J.C. (2014) 226 Cal.App.4th 503, 527.)
As an " ' "escape mechanism" ' " to allow the court to consider new information
even after termination of reunification services, a parent may file a section 388 petition
for modification of a court order. (In re Zacharia D., supra, 6 Cal.4th at p. 447; § 388.)
Section 388 allows a parent to file a modification petition based on "change of
circumstances or new evidence" (§ 388, subd. (a)(1)) and instructs the court to hold a
hearing "[i]f it appears that the best interests of the child . . . may be promoted by the
proposed change of order . . . ." (§ 388, subd. (d), italics added; see In re Zachary G.
(1999) 77 Cal.App.4th 799, 806.) The section 388 petition should be liberally construed
in favor of granting a hearing to consider the parent's request, and the parent need only
make a prima facie showing of the required elements to trigger the right to proceed by
19 way of a full hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309–310; In re Zachary
G., supra, at p. 806.)
A prima facie showing " 'is one that is sufficient to support the position of the
party in question.' " (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th
408, 417; In re Zachary G., supra, 77 Cal.App.4th at p. 806.) The showing may consist
of " 'slight evidence which creates a reasonable inference of fact sought to be established
but need not eliminate all contrary inferences.' " (Krinsky v. Doe 6 (2008) 159
Cal.App.4th 1154, 1172, fn. 14.) To be entitled to a hearing, the petitioner need not
establish a probability of prevailing, but need only present evidence that might warrant a
change in the court's order. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432–433; In re
Angel B. (2002) 97 Cal.App.4th 454, 461.) In determining whether the petition makes
the necessary showing, the court may consider the entire factual and procedural history of
the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) If the liberally-construed
allegations of the petition do not make a prima facie showing, the court need not order a
full evidentiary hearing on the petition. (In re Zachary G., supra, at p. 806.)
We review the court's finding of no prima facie showing for abuse of discretion.
(In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) We must uphold the order unless
the court's determination was arbitrary, capricious or patently absurd. (In re Mary G.
(2007) 151 Cal.App.4th 184, 205.)
Here, we conclude mother failed to satisfy her burden to show the court erred in
finding there was no prima facie showing of new evidence or changed circumstances in
20 connection with her petition, given that she waited six months after minor was removed
from the paternal grandfather's house to seek relief. In addition, we separately conclude
mother failed to make a prima facie showing that granting her section 388 petition and
placing minor with the maternal aunt was in minor's best interest. (See In re Stephanie
M. (1994) 7 Cal.4th 295, 317 [noting the primary consideration in determining the best
interests of a child is the goal of assuring stability and continuity]; see also In re Angel B.,
supra, 97 Cal.App.4th at p. 464 [noting that when "custody continues over a significant
period, the child's need for continuity and stability assumes an increasingly important
role," and noting that "need often will dictate the conclusion that maintenance of the
current arrangement would be in the best interests of that child"].)
Indeed, on the one hand the record shows that, at the time of the section 388
petition, minor had no relationship whatsoever with the maternal aunt or his cousins. The
maternal aunt's last visit with minor was July 2012, about a month after minor was
detained. At the time mother filed her section 388 petition in late December 2014 and
when that petition was denied in early February 2015, more than two years had passed
since the maternal aunt last visited minor. During this period of time, the maternal aunt
also did not call to speak with minor, even when minor was living with the paternal
grandfather; she did not inquire about minor's health or well-being, even after the minor
had surgery to repair a congenital heart defect; and she did not contact the agency to
inquire about minor or the status of his case in connection with minor's well-being or his
placement.
21 In addition, we note when minor was first removed mother wanted minor placed
with the maternal grandparents, but that placement was not approved because on
evaluation there were issues related to "criminal history, CPS history as well as the
maternal grandparents having two children that reside in the home that ha[ve] molest
history and substance abuse history." The record shows mother next suggested that a 17-
year-old high school student, who was in continuation school and thus at home during the
day, was a suitable placement option for minor because the student and minor had met a
"few times." Thus, the record strongly suggests mother's desire regarding the placement
of minor was not always in minor's best interest.
On other hand, the record clearly shows that at the time of the section 388 petition,
minor was thriving in his NREFM placement with J., where minor had spent more than
one and a half years in J.'s care. Minor was then referring to J. as "momma," looked to
her as a parent and considered J.'s other foster child as his sister. In addition, minor—
who repeatedly is described as being extremely intelligent and verbal for his age—told an
agency social worker that he did not want to leave J.'s home. The record also shows J.
wanted to adopt minor and had an approved adoptive home study.
In light of minor's multiple placements over the course of his young life, his need
for stability and continuity, and his strong bond to and relationship with J. over the course
of more than a year and a half and his lack of any relationship whatsoever with the
maternal aunt, we conclude the court properly exercised its discretion when it found
without a full-blown evidentiary hearing that mother did not make a prima facie showing
22 that the requested change in the court order placing minor with the maternal aunt was in
minor's best interest. (See In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [upholding
the decision of the court made shortly before a section 366.26 hearing to deny a mother's
section 388 petition seeking a change of placement of her child from a foster family to
the mother's cousin and his wife because the cousin had only met the child once and
because the child had lived with her foster family for half of her life, had a strong bond to
them and they had indicated their desire to provide the child a permanent home].)
We thus conclude there was no abuse of discretion or violation of due process
arising from the court's denial of a full evidentiary hearing concerning mother's section
388 petition for a change in placement.
B. Beneficial parental relationship
Mother and father separately contend there is insufficient evidence to support the
court's finding that neither met their burden of showing a beneficial relationship with
minor for purposes of the beneficial parent-child relationship exception to adoption set
forth in section 366.26, subdivision (c)(1)(B)(i).
When reunification services are terminated, such as in the instant case, the focus
of a dependency proceeding shifts from preserving the family to promoting the best
interest of the child, including the child's interest in a stable, permanent placement that
allows the caregiver to make a full emotional commitment to the child. (In re Fernando
M. (2006) 138 Cal.App.4th 529, 534.) At the section 366.26 selection and
implementation hearing, the court has three options: (1) terminate parental rights and
23 order adoption as the permanent plan, (2) appoint a legal guardian for the dependent
child, or (3) order the child placed in long-term foster care. (Ibid.)
However, "[a]doption . . . is the permanent plan preferred by the Legislature." (In
re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Thus, "[i]f the child is adoptable, there is
a strong preference for adoption over alternative permanency plans." (In re Michael G.
(2012) 203 Cal.App.4th 580, 588.) All that is required to show a dependent child is
adoptable is "clear and convincing evidence of the likelihood that adoption will be
realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406; see
§ 366.26, subd. (c)(1).)
Here, as noted, the court at the section 366.26 hearing found minor was likely to
be adopted, which finding neither mother nor father challenge on appeal. Indeed, the
record shows J. wanted to adopt minor and that if J. was unable to do so, there were at
least 75 other families that wanted to adopt a child with the characteristics of minor.
Once the court found by clear and convincing evidence that minor was likely to be
adopted within a reasonable time, it was required to terminate the parental rights of the
parents and select adoption as the permanent plan unless mother and/or father showed
that termination of parental rights would be detrimental to minor, including, as each
contends here, under the beneficial parent-child relationship exception set forth in section
366.26, subdivision (c)(1)(B)(i). (See In re Michael G., supra, 203 Cal.App.4th at
p. 589; In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
24 Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption
preference if the court finds a "compelling reason" for determining that termination of
parental rights would be "detrimental" to the child because the "parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship." The statutory phrase "benefit from continuing the relationship" has
been interpreted to mean that the parent-child relationship "promotes 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." (In re Autumn H., supra, 27 Cal.App.4th
at p. 575.)
In determining whether the child would benefit from continuing the parent-child
relationship for purposes of this exception, the court "balances the strength and quality of
the natural parent/child relationship in a tenuous placement against the security and the
sense of belonging a new family would confer. If severing the natural parent/child
relationship would deprive the child of a substantial, positive emotional attachment such
that the child would be greatly harmed, the preference for adoption is overcome and the
natural parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p.
575; accord, In re Jason J. (2009) 175 Cal.App.4th 922, 936.)
To meet his or her burden of establishing the applicability of the beneficial parent-
child relationship exception, a parent must show more than frequent and loving contact,
an emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73
Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer
25 some incidental benefit to the child." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Rather, the "parent must show he or she occupies a parental role in the child's life." (In re
C.F. (2011) 193 Cal.App.4th 549, 555; In re Derek W., supra, at p. 827.)
Thus, 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.
[Citation.] A child who has been adjudged a dependent of the juvenile court should not
be deprived of an adoptive parent when the natural parent has maintained a relationship
that may be beneficial to some degree, but that does not meet the child's need for a
parent." (In re Angel B., supra, 97 Cal.App.4th at p. 466, italics omitted; accord, In re
Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
On review of the sufficiency of the evidence to support a court's order terminating
parental rights and freeing the parent's child for adoption, "we presume in favor of the
order, considering the evidence in the light most favorable to the prevailing party, giving
the prevailing party the benefit of every reasonable inference and resolving all conflicts
in support of the order." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "We must
affirm the juvenile court's rejection of any exception to termination of parental rights if
the court's findings are supported by substantial evidence." (In re Michael G., supra, 203
Cal.App.4th at p. 589.)4
4 The agency urges us to adopt a hybrid standard of review, applying both the substantial evidence and abuse of discretion standards, as some courts have done. (See, e.g., In re J.C. (2014) 226 Cal.App.4th 503; In re Bailey J. (2010) 189 Cal.App.4th 1308.) We note there is little practical difference between the two standards. (See In re 26 "The appellate court does not reweigh the evidence, evaluate the credibility of
witnesses or indulge in inferences contrary to the findings of the trial court. [Citations.]
The substantial evidence standard of review is generally considered the most difficult
standard of review to meet, as it should be, because it is not the function of the reviewing
court to determine the facts." (In re Michael G., supra, 203 Cal.App.4th at p. 589.)
Here, although we doubt the court's finding that mother and father each
"maintained regular visitation and contact with the child" is supported by substantial
evidence in the record,5 we need not base our decision on that issue because we conclude
mother and father have each failed to show no substantial evidence supported the finding
that the beneficial parent-child exception did not apply to each of them in this case.
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [recognizing the "practical differences between the two standards of review are not significant"].) In any event, we need not decide whether to apply the hybrid standard here because we note, as does the agency, that the result would be the same regardless of whether we apply a hybrid or substantial evidence standard in this case.
5 The record shows at the February 5, 2015 section 366.26 hearing, the court noted this case was originally in another department and thus the court, while familiar with the case and its issues, had not been involved in the case from its beginning. In any event, the record suggests both mother's and father's visits with minor were sporadic and inconsistent after minor was detained in June 2012. (See In re C.F., supra, 193 Cal.App.4th at p. 554 [noting that "[s]poradic visitation is insufficient to satisfy the first prong of the parent-child relationship exception to adoption"].) By way of example only, mother had no contact whatsoever with minor from June 20, 2014, when minor was hastily removed from the paternal grandfather's house, until November 12, 2014. Mother's resumed visits with minor in November 2014 ended in mid-January 2015, after mother was arrested and incarcerated (yet again). The record also shows mother often was late and/or missed visits and often made excuses when she did so. As for father, after minor was removed from the paternal grandfather's house in June 2014, father had no further contact with minor. By the time of the contested section 366.26 hearing, father had not seen minor in seven months. 27 As for mother, while the record shows she had positive interactions with minor
during their visits and clearly loved minor, the record also shows at no time since minor
was detained in June 2012 did mother occupy a "parental role" in the child's life. (See In
re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) Rather, the record shows mother
had an on-again, off-again relationship with minor, as evidenced by her lack of any
contact with minor from June 2014 until November 2014 and as evidenced by her brief,
unscheduled visit with minor on Christmas Eve 2013, which was mother's only in-person
visit with minor over a six-month period.
The record also shows mother often was late for visits and/or missed visits with
minor, often making excuses for doing so. At the same time, mother was continually
struggling to stay sober and was arrested and incarcerated multiple times after minor was
removed from her care in June 2012, including at or near the time of the February 5, 2015
section 366.26 hearing. Moreover, at the time of the section 366.26 hearing, minor had
not lived with mother since June 2012, when minor was about two and half years old. At
the time of the hearing, minor was five years old. Thus, for almost half his young life,
minor had not lived with mother.
In contrast, the record shows at the time of the section 366.26 hearing minor had
lived with J. for more than a year and a half; that minor looked to J. as a parental figure;
that J. took care of minor's daily needs, including his medical needs; that minor called J.
"momma" and J.'s other foster child, sister; that minor expressed his desire to always live
28 with J.; and that minor was thriving in his placement with J., who also wanted to adopt
minor.
Thus, when balancing the "strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of belonging a new
family would confer" (In re Autumn H., supra, 27 Cal.App.4th at p. 575) in light of the
circumstances of this case, we conclude the record amply supports the finding that with
respect to mother, the beneficial parent-child exception did not apply in this case. (See In
re Cliffton B. (2000) 81 Cal.App.4th 415, 424 [noting the parental relationship must be
more than " 'frequent and loving contact' " for the exception to adoption to apply].)
We reach the same conclusion with respect to father. Although father at one point
appeared to occupy somewhat of a parental role with minor after minor was placed with
the paternal grandfather in November 2013, the record also shows that like mother, father
was unable to remain sober and care for minor for any length of time, even when a future
with minor was at stake; that father exposed minor to domestic violence, including
physical acts of violence, at least six or seven times when minor was living in the
paternal grandfather's home; that after minor was hastily removed from the paternal
grandfather's home in June 2014, father had no visits with minor at the time of the
February 5, 2015 section 366.26 hearing; and that at or near the time of the section
366.26 hearing, like mother, father was once again incarcerated.
Again, when balancing the "strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of belonging a new
29 family would confer" (In re Autumn H., supra, 27 Cal.App.4th at p. 575) under the
circumstances of this case, we conclude with respect to father that the record supports the
finding that the beneficial parent-child exception did not apply in this case. (See ibid.
[noting the statutory phrase " 'benefit from continuing the [parent/child] relationship' "
means that the parent-child relationship "promotes 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"].)
C. Motion for Continuance
Lastly, mother contends the court abused its discretion and thus erred when it
denied her oral motion for a continuance to obtain private counsel, which she made at the
outset of the February 5, 2015 section 366.26 hearing. We disagree.
Section 352, subdivision (a) provides a continuance shall be granted only on a
showing of good cause and when it is the best interest of the child.6 In considering the
6 Subdivision (a) of section 352 provides: "Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a 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 the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. Further, neither a pending criminal prosecution nor family law matter shall be considered in and of itself as good cause. Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court. [¶] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts 30 child's interests, the court is required to "give substantial weight to a 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." (Ibid.)
Here, the record shows mother was present at the November 20, 2014 hearing
when the court set the February 5, 2015 section 366.26 hearing. The record does not
show why mother waited until the day of the section 366.26 hearing, months after
receiving notice of it, to seek new counsel and/or why new counsel was necessary or, in
light of the circumstances of this case, how new counsel would have made any difference
in this case.
What's more, mother also did not explain or provide any detail at the section
366.26 hearing regarding how long of a continuance she wanted. Although on appeal she
claims she merely wanted a "brief delay," as is evident from the circumstances of, and the
voluminous record in, this case, it is unlikely new counsel would have been ready to
proceed with merely a "brief delay" in the hearing.
In addition, the record shows the February 5, 2015 section 366.26 hearing was the
second time such a hearing had been set, as the court in July 2013 had initially scheduled
the section 366.26 hearing for mid-September 2013. The September 2013 hearing was
vacated, however, after the court granted father's section 388 petition.
Considering that minor had been detained since June 2012, that the section 366.26
hearing already had been vacated about a year and a half before it actually took place,
showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance." 31 and that mother had notice of the February 5, 2015 section 366.26 hearing as early as
November 20, 2014, we conclude the court properly exercised its discretion when it
found a continuance of that hearing was not in minor's best interests. (See § 352, subd.
(a); In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187 [noting " '[t]ime is of the essence in
offering permanent planning for dependent children' " and noting a "reviewing court will
reverse an order denying a continuance only upon a showing of an abuse of discretion"];
see also In re David H. (2008) 165 Cal.App.4th 1626, 1635 [noting "[c]ontinuances in
juvenile dependency proceedings are disfavored"].)
DISPOSITION
The order terminating the parental rights of mother and father and finding minor
adoptable is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 32