Filed 12/22/14 In re D.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 D.L. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E061617
Plaintiff and Respondent, (Super.Ct.Nos. J245679, J245680 & J248788) v. OPINION W.L.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Michele Anne Cella, under appointment by the Court of Appeal, for Defendant
and Appellant.
Jean-Rene Basle, County Counsel, Jeffrey L. Bryson, Deputy County Counsel, for
Plaintiff and Respondent.
1 W.L. (father) appeals from orders of the juvenile court denying his modification
petition and terminating his parental rights to D.D.L., W.L., and D.R.L. Father contends
he demonstrated changed circumstances, and that continued reunification services was in
the children’s best interests, so the juvenile court abused its discretion by summarily
denying his petition under Welfare and Institutions Code1 section 388 without conducting
an evidentiary hearing. Father also argues that the trial court erred by terminating his
parental rights, and by not finding under section 366.26, subdivision (c)(1)(B)(i), that a
continuation of father’s parental relationship would be beneficial to the children. We find
no error and, therefore, affirm the orders.
I.
FACTS AND PROCEDURAL HISTORY
On August 24, 2012, San Bernardino County Children and Family Services (CFS)
filed petitions alleging that D.D.L. and W.L. were dependent children within the meaning
of section 300, subdivision (b).2 The petitions and a detention report dated August 27,
2012, alleged that the parents I.M. (mother)3 and father had (1) substance abuse
problems, (2) engaged in domestic violence, (3) maintained a filthy home, and (4) failed
to provide adequate and appropriate care and safe living conditions for the children. The
1 Unless otherwise indicated, all additional undesignated statutory references are to the Welfare and Institutions Code.
2 By order dated August 13, 2014, this court, on its own motion, incorporated the record from father’s prior writ proceeding in case No. E060694. (Cal. Rules of Court, rule 8.147.)
3 Mother did not file a notice of appeal and, therefore, is not a party to this appeal.
2 juvenile court ordered that D.D.L. and W.L. be removed from the custody of their parents
and placed in the temporary custody of CFS.
In a jurisdiction report filed on September 13, 2012, the social worker reported
that mother and father had a history of using alcohol and drugs. The social worker also
reported that the family home was filthy during an August 21, 2012 visit, but indicated
during two other visits in September it appeared the parents had been actively “cleaning”
and “working on” the home. The parents attended supervised visits with the children in
their temporary placement which, on the whole, went well. Although the social worker
recommended the children should not be returned to the parents at that time, she
concluded the prognosis for successful reunification was good and recommended that the
juvenile court offer reunification services. She also recommended that the court direct
father to complete parenting counseling and classes, and to submit to drug testing.
In an addendum report filed on October 5, 2012, the social worker reported that
she had visited the home and found the parents actively cleaning the garage of dangerous
clutter. However, the social worker also reported that mother had been arrested since the
prior visit, and that the parents’ landlord had informed her that he was in the process of
evicting them for not paying rent. The social worker again recommended that the
children remain in their temporary placement and that the court approve the reunification
case plan. The juvenile court declared the children to be dependents of the court, adopted
the social worker’s recommendations and case plan, and ordered that the children were to
remain in their temporary placement.
3 In March 2013, mother gave birth to D.R.L., who was born with various medical
issues and tested positive for amphetamine. D.R.L. was taken into protective custody on
April 5, 2013, and on April 9, CFS filed a petition alleging that D.R.L. was a dependent
child within the meaning of section 300, subdivisions (b) and (j). The juvenile court
ordered that D.R.L. be removed from the custody of both parents and placed in the
temporary custody of CFS. D.R.L. was released from the hospital on April 15, 2013, and
placed in a foster home.
In a status review report filed on April 24, 2013, the social worker reported that
father had been participating in reunification services, and that visits with D.D.L. and
W.L. were appropriate. Father was making progress toward reunification until his
enrollment in services through Christian Counseling Services was discontinued due to his
lack of attendance. The social worker reported that father had been arrested and spent
almost two weeks in jail.
In a jurisdiction and disposition report regarding D.R.L. filed on April 29, 2013,
the social worker reported that father had not participated in drug testing as required
under his case plan, and his missed tests were deemed positive. The social worker
reported that father’s visits with D.R.L. were appropriate, but sporadic, and father’s
relationship with the child continued to grow.
At a six-month status review hearing conducted on April 30, 2013, the juvenile
court approved the case plan for father and ordered him to participate in reunification
services. It further ordered that D.D.L. and W.L. continue in their temporary foster
placement. The court found that both parents continued to use drugs, and that they made
4 only moderate progress toward reunification. On May 21, 2013, the juvenile court
conducted a continued jurisdictional hearing for D.R.L. and found her to be a dependent
of the court.
In a status review report filed on October 24, 2013, the social worker reported that
all three children were adjusting to and doing well in their respective foster placements.
The social worker reported that father was engaged in his case plan, but had not yet made
significant progress in demonstrating that he could adequately provide a safe home for
the children. Father’s visits with D.D.L. and W.L. continued to go well, although he was
usually late and had missed several visits with D.R.L. Father completed 10 counseling
sessions and 10 parenting classes, but had not appeared for scheduled substance abuse
appointments. He had, however, appeared for drug testing and tested negative. The
social worker recommended that reunification services be continued for father, and,
although the juvenile court characterized father’s progress as minimal, it adopted the
recommendation.
In a status review report filed on February 14, 2014, the social worker reported
that father had been arrested shortly after the last review hearing and had not completed
his reunification plan. However, the social worker also reported that father had continued
to have positive visits with the children, and the children continued to do well in their
respective foster placements. Because of father’s failure to complete his case plan and
his lack of progress toward providing a safe home for the children, the social worker
recommended reunification services be cancelled and a hearing be set, pursuant to section
366.26, for selection and implementation of a permanent plan. On February 27, 2014, the
5 juvenile court found that father’s progress was still minimal. Therefore, the court
terminated reunification services for father and set a hearing pursuant to section 366.26,
but ordered father continued visitation with the children pending the hearing because the
children had derived some benefit from the visits.4
In a disposition report filed on June 17, 2014, the social worker recommended that
father’s parental rights be terminated as to all three children. The social worker reported
that the children continued to do well in their foster homes, they were very attached to
their foster/prospective adoptive parents, and the prospective adoptive parents had
expressed a desire to adopt the children. Father continued to make regular visits with the
children.
On June 27, 2014, father filed a petition pursuant to section 388 seeking an order
returning the children to him under family maintenance or, in the alternative, reinstating
reunification services. Father alleged changed circumstances warranted relief because,
since the date the juvenile court terminated reunification services, he had (1) completed a
parenting course, (2) continued to participate in Alcoholics Anonymous and Narcotics
Anonymous (AA/NA), and (3) obtained appropriate housing. He alleged these changed
circumstances meant that he could “provide a safe & loving home” for the children. The
juvenile court denied the petition and declined to set an evidentiary hearing. It found no
4 Father timely filed a notice of his intent to challenge by petition for writ of mandate the orders terminating reunification services and setting a hearing pursuant to section 366.26 (Cal. Rules of Court, rules 8.450, 8.452), but this court dismissed the petition when his appointed counsel filed a “Non-Issue Writ.”
6 changed circumstances warranting relief under section 388 and concluded the requested
relief would not be in the children’s best interests.
At the section 366.26 hearing, father testified that he had been the primary
caregiver for D.D.L. and W.L. before their detention, and that both children recognized
him as their father. He had visited with them weekly for the past six months, during
which he played with them and they recognized him as their father. Father had also
visited with D.R.L. once a week since her detention, and she too recognized him as her
father. Father believed that a continued relationship with the children would be in their
best interests “[b]ecause I believe that they need me as much as I need them emotionally
and physically,” and that “it would be detrimental, I believe, to keep us from each other.”
Finally, father requested that the court consider a less permanent plan than adoption.
Counsel for the children argued that father’s parental rights should be terminated.
Counsel for CFS also argued that father’s parental rights should be terminated, and that
the court should not find that the benefit exception under section 366.26 applied. “I don’t
believe there is detriment in severing parental rights. According to the father, his
statement was that it is detrimental to keep us from each other, but he didn’t elaborate as
to why it is detrimental to sever parental rights.” Counsel also argued that the question
before the court was not whether or not father loved his children, but “whether or not
there [was] a substantial bond, parental bond, that would prevent these children from
being adopted and gaining stability and permanency.” Father’s attorney requested that
the court consider guardianship or some other permanent plan short of termination of
parental rights and adoption.
7 The court ruled that the only applicable exception to termination of parental rights
was the benefit exception and concluded that it did not apply to father. Although the
court found that father “maintained regular visitation and contact,” it characterized the
visits as those “of a friendly visitor,” and concluded the benefit to the children from the
visits was “possibly incidental or minor . . . as they have had caregivers for a significant
period of time in their lives.” Based on father’s minimal and intermittent progress in his
case plan and his “inability to really engage in services to become [a] parent,” the court
found that termination of parental rights and adoption would be in the children’s best
interests. The court found by clear and convincing evidence that father “failed to
participate regularly and make progress in [his] case plan,” and that his progress had been
minimal. Therefore, the court terminated father’s parental rights, found the children to be
suitable for adoption, and directed CFS to finalize the permanent plan for the children’s
adoption.
Father timely filed a notice of appeal.
II.
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion by Denying Father’s Section
388 Petition Without Conducting an Evidentiary Hearing
“A juvenile court order may be changed, modified or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new evidence or
changed circumstances exist, and (2) the proposed change would promote the best
interests of the child. [Citation.] The parent bears the burden to show both a legitimate
8 change of circumstances and that undoing the prior order would be in the best interest of
the child. [Citation.] Generally, the petitioner must show by a preponderance of the
evidence that the child’s welfare requires the modification sought. [Citation.]” (In re
A.A. (2012) 203 Cal.App.4th 597, 611-612 [Fourth Dist., Div. Two].)
“Not every change in circumstance can justify modification of a prior order.
[Citation.] The change in circumstances must relate to the purpose of the order and be
such that the modification of the prior order is appropriate. [Citations.] In other words,
the problem that initially brought the child within the dependency system must be
removed or ameliorated. [Citation.] The change in circumstances or new evidence must
be of such significant nature that it requires a setting aside or modification of the
challenged order. [Citation.]” (In re A.A., supra, 203 Cal.App.4th at p. 612.)
Section 388 is “an ‘escape mechanism’ when parents complete a reformation in
the short, final period after the termination of reunification services but before the actual
termination of parental rights. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th
519, 528, italics added.) It is not enough for a parent to show an incomplete reformation
or that he or she is in the process of changing the circumstances which lead to the
dependency. “After the termination of reunification services, the parents’ interest in the
care, custody and companionship of the child are no longer paramount. Rather, at this
point ‘the focus shifts to the needs of the child for permanency and stability” . . . .
[Citation.] A court hearing a motion for change of placement at this stage of the
proceedings must recognize this shift of focus in determining the ultimate question before
it, that is, the best interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
9 “‘A petition which alleges merely changing circumstances and would mean delaying the
selection of a permanent home for a child to see if a parent . . . might be able to reunify at
some future point, does not promote stability for the child or the child’s best interests.
[Citation.] “‘[C]hildhood does not wait for the parent to become adequate.’”’
[Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 206.)
“‘It is not enough for a parent to show just a genuine change of circumstances
under the statute. The parent must show that the undoing of the prior order would be in
the best interests of the child. [Citation.]’ [Citation.] The fact that the parent ‘makes
relatively last-minute (albeit genuine) changes’ does not automatically tip the scale in the
parent’s favor. [Citation.] Instead, ‘a number of factors should be examined.’ [Citation.]
First, the juvenile court should consider ‘the seriousness of the reason for the dependency
. . . .’ [Citation.] ‘A second important factor . . . is the strength of the existing bond
between the parent and child . . . .’ [Citation.] Finally, as ‘the essence of a section 388
motion is that there has been a change of circumstances,’ the court should consider ‘the
nature of the change, the ease by which the change could be brought about, and the
reason the change was not made before . . . .’ [Citation.] ‘While the bond to the
caretaker cannot be dispositive, . . . our Supreme Court made it very clear . . . that the
disruption of an existing psychological bond between dependent children and their
caretakers is an extremely important factor bearing on any section 388 motion.’
[Citation.]” (In re D.R. (2011) 193 Cal.App.4th 1494, 1512.)
“The juvenile court shall order a hearing [on a section 388 petition] where ‘it
appears that the best interests of the child . . . may be promoted’ by the new order.
10 (§ 388, subd. (d).) Thus, the parent must sufficiently allege both a change in
circumstances or new evidence and the promotion of the child’s best interests. [Citation.]
[¶] A prima facie case is made if the allegations demonstrate that these two elements are
supported by probable cause. [Citations.] It is not made, however, if the allegations
would fail to sustain a favorable decision even if they were found to be true at a hearing.
[Citations.] While the petition must be liberally construed in favor of its sufficiency
[citations], the allegations must nonetheless describe specifically how the petition will
advance the child’s best interests. [Citations.]” (In re G.B. (2014) 227 Cal.App.4th
1147, 1157, fn. omitted.) “This court reviews a juvenile court’s decision to deny a
section 388 petition without a hearing for abuse of discretion. [Citation.]” (Id. at
p. 1158.)
Father contends the juvenile court abused its discretion by summarily denying his
petition because he sufficiently alleged changed circumstances, and returning the children
to his custody under family maintenance or reinstating reunification services would be in
the best interests of the children. In his briefs, father relies not only on the changed
circumstances alleged in the petition, but also on the facts that (1) he was no longer living
with mother and, therefore, “her ongoing drug use ceased to be an impediment to [father]
getting the children back,” (2) he had been released from jail, (3) the filthy house had
been cleaned up, and (4) the social worker reported that father did not appear to have a
drug problem. But, as CFS points out in its brief, none of these additional alleged
changed circumstances were included in father’s petition, and the record demonstrates
that all or most of these facts predated the juvenile court’s order terminating reunification
11 services. Consequently, these facts cannot be counted as changed circumstances that
would warrant undoing that order.
With respect to the changed circumstances that were actually alleged, and that did
in fact postdate the order terminating reunification services, father did not make a prima
facie showing that he was entitled to relief. Father pleaded that he had completed a
parenting course, that he continued to participate in AA/NA meetings, and that he had
obtained appropriate housing. Even if we liberally construe these allegations, at most,
they demonstrate that father had begun the process of reforming himself and becoming an
adequate parent. Completion of an unspecified parenting course, while commendable,
was not the equivalent of making satisfactory progress on his case plan. Likewise,
father’s continued participation in drug and alcohol counseling and his recent acquisition
of suitable housing did not demonstrate that father could adequately provide for the
children in the future. At most, father alleged changing circumstances, not changed ones.
(In re Mary G., supra, 151 Cal.App.4th at p. 206.)
Father did not sufficiently allege that returning the children to him on family
maintenance or reinstating reunification services would be in the best interests of the
children. D.D.L. and W.L. were removed from father’s custody at a very young age and
had spent much of their young lives with their caregivers. D.R.L. was detained shortly
after her birth and never lived with father. Father did not allege a strong bond between
himself and the children, and the record demonstrates that the children were bonding well
with their caregivers. Therefore, the juvenile court reasonably concluded that granting
12 the petition would not be in the children’s best interests. (See In re D.R., supra, 193
Cal.App.4th at p. 1512.)
In sum, we conclude the juvenile court did not abuse its discretion.
B. The Juvenile Court Did Not Err by Finding the Children Would Not Benefit
from Father’s Continued Parental Relationship
“Section 366.26 provides that if parents have failed to reunify with an adoptable child,
the juvenile court must terminate their parental rights and select adoption as the
permanent plan for the child. The juvenile court may choose a different permanent plan
only if it ‘finds a compelling reason for determining that termination [of parental rights]
would be detrimental to the child [because]: [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit from continuing the
relationship.’ (§ 366.26, subd. (c)(1)(B)(i).)” (In re Marcelo B. (2012) 209 Cal.App.4th
635, 642.)
The appellate courts are divided on the appropriate standard of review of a
juvenile court’s conclusion that the benefit exception does not apply. Some courts have
applied the abuse of discretion standard while others have applied the substantial
evidence test. (See In re Scott B. (2010) 188 Cal.App.4th 452, 469.) Recently, some
courts have taken a middle approach, applying the substantial evidence test to the
juvenile court’s factual finding of whether there exists a beneficial parent-child
relationship, and applying the abuse of discretion standard to the juvenile court’s
“‘“quintessentially” discretionary decision’” that termination of parental rights will not be
detrimental to the child. (In re K.P. (2012) 203 Cal.App.4th 614, 621-622, quoting In re
13 Bailey J. (2010) 189 Cal.App.4th 1308, 1315.) We need not decide which approach is
correct because under either standard, the juvenile court did not err.
There is no dispute father visited regularly with the children, and that the visits
went well with the children showing affection for father. The pertinent issue then
becomes whether the second prong of the exception applies, i.e., whether the children
would derive a greater benefit from continuing the parent-child relationship with father
than they would from being adopted. (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-
1235.)
In re Autumn H. (1994) 27 Cal.App.4th 567, is the seminal case regarding
exceptions to the preference for adoption. There, the court held that parent-child
relationships that can prevent termination of parental rights are ones that 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. In other words, 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.” (Id. at p. 575.)
“The exception must be examined on a case-by-case basis, taking into account the
many variables which affect a parent/child bond. The age of the child, the portion of the
child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction
between parent and child, and the child’s particular needs are some of the variables which
14 logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-
576.)
Adoption cannot be thwarted simply because a child would derive some benefit
from continuing the parent-child relationship, and adoption should be ordered when the
court finds that the relationship maintained through visitation does not benefit the child
significantly enough to outweigh the strong preference for adoption. (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1350.) The juvenile court may reject the parent’s claim
simply by finding that the relationship maintained during the visitation does not benefit
the child significantly enough to outweigh the strong preference for adoption. To apply
the exception, the court must find compelling reasons to apply the exception. Only in an
extraordinary case will the preservation of parental rights prevail over the Legislature’s
preference for adoption. (Ibid.)
There is no genuine dispute that father was affectionate with the children during
his regular visits, and they recognized him as their father and reciprocated affection. But
there was no further evidence to demonstrate how deeply attached the children were to
father, and no bonding study was conducted. There is no indication that the children
cried at the end of their visits or that they were unhappy to return to their caregivers.
Considering the children’s tender ages, the fact D.D.L. and W.L. lived with father
for a relatively brief time and D.R.L. never lived with father, and the demonstrated
strength of the bond between the children and their prospective adoptive parents, the
juvenile court did not err by concluding the bond between father and the children was not
so substantial that severing it would be detrimental. The benefits the children would
15 derive from a continued parental relationship with father, whose long-term ability to
provide for them was not yet proven, did not outweigh the benefits they would derive
from a stable and secure adoptive family. The record supports the trial court’s findings,
and we find no abuse of discretion.
III.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
CODRINGTON J.