In re ANGEL B., a Person Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
v.
Teia Z., Defendant and Appellant.
Court of Appeal, Second District, Division Three.
*485 Steven D. Schatz, Fountain Valley, under appointment by the Court of Appeal, for Defendant and Appellant.
Lloyd W. Pellman, County Counsel, and Angela Williams, Deputy County Counsel, for Plaintiff and Respondent.
CROSKEY, Acting P.J.
Teia Z. (Mother) appeals from two orders of the juvenile court. One order, entered nunc pro tunc on May 30, 2001 (the nunc pro tunc order itself was made on July 31, 2001) denied her Welfare & Institutions Code section 388 petition,[1] and on August 8, 2001, the juvenile court terminated Mother's parental rights to Angel B. (Angel). Mother appealed from both orders, and those appeals were consolidated on October 4, 2001 for resolution here.
*486 FACTUAL AND PROCEDURAL BACKGROUND[2]
Mother gave birth to Angel in June 2000; thus, Angel will be two years old in June 2002. Angel was born exposed to cocaine and amphetamines, and Mother admitted using drugs shortly before Angel's birth, which she acknowledged was a bad thing to have done. Angel never lived with Mother, but was detained while in the hospital, and then promptly placed in foster care with a potential adoptive family.
Two years earlier, in November 1998, Mother had given birth to Robert, who was also born exposed to amphetamines and methamphetamines. Robert had been declared a dependent of the juvenile court, and Mother had failed to reunify with him. Many years earlier, Mother had also lost custody of this first child. As to Robert, he had been placed with a foster family that wanted to adopt him, and Angel, too, was placed with this same family with the plan that she would be adopted along with Robert. In addition to Robert and Angel, the foster family had two biological children and a sibling set of children who the foster family had already adopted.
Mother had a long history of drug abuse, having begun using at the age of thirteen. By 2000, she was 35 years old, and had tried to rehabilitate herself, without permanent success, on a number of occasions.
Mother was granted monitored visitation with Angel. She appeared for only some of the scheduled visits. She also failed to appear at several of the earliest court hearings. The juvenile court ordered that Mother not receive any reunification services pursuant to section 361.5, subdivision (b)(10), because Robert had been ordered into permanent planning rather than reunited with Mother.
Despite these problems, Mother did begin to do better. She enrolled in a residential drug treatment program, consistently tested clean for four months, completed various classes, and even obtained employment. She had regular visits with Angel, which went well. As a result, she petitioned the juvenile court pursuant to section 388 to either grant her supervised custody of Angel, or grant her reunification services. Her petition was summarily denied without an evidentiary hearing, and thereafter her parental rights were terminated. She appeals from both orders.
CONTENTIONS ON APPEAL
Mother contends that the juvenile court (1) violated her constitutional right to due process by refusing to hold a hearing on her section 388 petition; (2) erred by failing to grant her either supervised custody of Angel or reunification services; and (3) erred by finding that her relationship with Angel did not meet the requirements of the exception to termination of parental rights in section 366.26, subdivision (c)(1)(A). The Los Angeles County Department of Children and Family Services (DCFS) disputes these contentions.
DISCUSSION
1. The Juvenile Court Did Not Violate Mother's Constitutional Rights By Refusing to Grant Her a Hearing on Her Section 388 Petition, Nor Did It Err by Refusing to Grant Her Either Supervised Custody Or Reunification Services
Mother first contends that the juvenile court violated her constitutional *487 rights by denying her request for a hearing on her section 388 petition, and further contends that, in fact, the juvenile court should have granted her either supervised custody or reunification services. In fact, the juvenile court not only denied her an evidentiary hearing, but also summarily denied the petition.[3] We review such a summary denial for abuse of discretion (In re Anthony W. (2001)
Section 388 provides, in relevant part, "(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court ... may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court .. . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall ... set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction.... (c) If it appears that the best interests of the child may be promoted by the proposed change of order, . .., the court shall order that a hearing be held and shall give prior notice, ..." (Italics added.)
A petition under this section must be liberally construed in favor of its sufficiency. (Cal.Rules of Court, Rule 1432(a).) Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court must order the hearing. (In re Aljamie D. (2000)
As Mother herself concedes, this statutory scheme itself is constitutional because of its many safeguards. One such safeguard, as she acknowledges, is that if 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. Thus, the real issue here is not whether this statutory scheme is constitutional, but whether Mother made the requisite prima facie showing; if she did, then we shall simply reverse and direct the juvenile court to hold the hearing due process does require.
Whether Mother made a prima facie showing entitling her to a hearing depends on the facts alleged in her petition, as well as the facts established as without dispute by the court's own file (for example, Angel's age, the nature of her existing placement, and the time she came into care as a dependent child). The facts alleged in Mother's petition are set out in a declaration *488 from Mother, a letter from Mother, a letter from Bonnie Brown (a family friend whose relationship with Mother was that of a "second mother"), and a letter from Cri-Help (the residential drug rehabilitation program in which Mother was enrolled).
According to Mother, she had enrolled in CriHelp in late January 2001, and would graduate in July 2001. She had obtained employment and would be working 35 hours per week, had consistently tested clean for drugs and alcohol while in the program, and had completed parenting, anger management and daily living skills classes. In addition, she was successfully participating in individual counseling, had visited with Angel consistently (missing only those visits that the social worker or foster parents were unable to attend), and she and Angel had bonded (Mother noted that Angel reached for her and was obviously happy to see her at visits). Mother also specifically asked, if she could not be given supervised custody, that she be given reunification services.
The CriHelp letter noted that between January 24, 2001, when Mother entered the CriHelp program, and May 29, 2001, the date on which the [CriHelp letter was prepared, Mother had made "outstanding progress." The letter confirmed Mother's statements about her classes and negative drug and alcohol tests.
Bonnie Brown explained the nature of her relationship with Mother (that of a second mother) as well as the length of time she had known Mother (since Mother was a little girl). She set out the nature of Mother's family of origin, which included such problems as an alcoholic father who didn't work much and a mother who worked long hours to support the family, and the lack of any parental involvement in such positive activities as homework and visits to the library. In contrast, Brown also commented on the family of origin's less wholesome activities, for example, that Mother's father had allowed Mother to smoke marijuana with him when she was only nine years old, that her father physically abused all the children, that mother did not protect them, and that when mother died father essentially deserted the children.
Brown, who had acted as the monitor for Mother's visits with Angel, noted the change she had seen in Mother: her eyes had become clear, she smiled and laughed and could talk about the past, and she obviously loved Angel and was "alive in her presence." Brown opined that Angel's birth had motivated Mother to change, and that this time, Mother was actually ready to change. Brown confirmed that Mother had a job, and also opined that Angel's place was with Mother.
Given this evidence, did the juvenile court abuse its discretion by refusing to hold a hearing on Mother's section 388 petition? We conclude that it did not. A review of the kinds of cases in which courts have reversed summary denials of section 388 petitions is instructive.
In In re Jeremy W. (1992)
Here, 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 drag 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 childcare while she worked. And, unlike the situation in In re Aljamie D., there was no evidence that Angel preferred to live with Mother rather than with the foster family.
It is also instructive to consider cases in which a section 388 petition was summarily denied and the denial was then affirmed. In In re Jamika W. (1997)
Here, too, whether Angel's best interests might be promoted by Mother's proposed change of order is a crucial issue in any determination of whether Mother's section 388 petition should have been granted. The "best interests of the child" standard (§ 388, subd. (c)) is sufficiently clear to allow a review of the denial of a section 388 petition. Although the specific factors a court must consider vary with each case, each child's best interests would necessarily involve eliminating the specific factors that required placement [outside the parent's home (In re Heather P. (1989)
In addition, as in any custody determination, a primary consideration in determining the child's best interest is the goal of assuring stability and continuity. (In re Stephanie M. (1994)
This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have been 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. (In re Stephanie M., supra,
Thus, in In re Edward H. (1996)
In this case, the facts presented by the section 388 petition show that Mother is doing well, in the sense that she has remained sober, completed various classes, obtained employment, and visited regularly with Angel. In addition, we shall assume, for the sake of this appeal, that this time her resolve is different, and that she will, in fact, be able to remain sober, remain employed, become self-supporting and obtain housing. Even so, such facts are not legally sufficient to require a hearing on her section 388 petition.
As noted above, 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. (In re Stephanie M., supra,
Here, Mother has not made such a showing, and it is difficult to imagine how she could have done so, given the fact that Mother never actually parented Angel before her removal, and Angel was immediately placed with an adoptive family and *491 her own sibling. Angel was removed from Mother's custody directly from the hospital, just two days after her birth. She was placed with a family that was not only in the process of adopting her older sibling, Robert, but that also was successfully parenting two biological children and two other adopted children (a sibling set), and that wanted to adopt Angel as well, in part because it valued providing its adopted children with biological siblings. The parents in this family clearly, by deed if not by name, were Angel's parents. They, not Mother, provided Angel with all the day-to-day, hour-by-hour care needed by a helpless infant and then growing toddler. Thus, although Mother's petition states that she has bonded with Angel, and that Angel is happy to see her and reaches for her on their visits, such visits, in total, add up to only a tiny fraction of the time Angel has spent with the foster parents. On this record, no reasonable trier of fact could conclude that the bond, if any, Angel feels toward Mother (as opposed to the bond that Mother feels toward Angel) is that of a child for a parent.
Perhaps if Angel were not adoptable and Mother was the only mother-figure in Angel's life, and Angels' only hope of having a family in the future, the result might be different. (See, e.g., In re Jerome D. (2000)
2. The Juvenile Court Did Not Err by Concluding that the Exception in Section 366.26, Subdivision (c)(1)(A) Did Not Apply
Mother also contends that the juvenile court erred by refusing to find that her parental rights should not be terminated based on the exception to termination of such rights found in section 366.26, subdivision (c)(1)(A).
Section 366.26, subdivision (c)(1)(A), provides that if the juvenile court determines, by a clear and convincing standard, that it is likely a minor will be adopted, then it shall terminate parental rights and order the child placed for adoption unless the court finds a compelling reason for determining that termination would be detrimental to the child. One such reason is that the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.
When contesting termination of parental rights under the statutory exception that the parent has maintained regular visitation with the child and the child will benefit from continuing the relationship, 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 (In re Jamie R. (2001)
To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (In re Lorenzo C., supra, 54 Cal.App.4th. at p. 1342,
Thus, for example, evidence that (1) a child who was nearly nine years old had lived with his mother for six and one-half years and had expressed his wish to live with her again, (2) for at least two months the child had been having unsupervised overnight visits in her home, and (3) the child, who lived with step-siblings, seemed to be the "odd child out" when his mother was allowed to visit him with his step-siblings, was sufficient to show a beneficial parent/child relationship such as would justify maintaining the mother's parental rights despite clear and convincing evidence the boy was adoptable. (In re Jerome D., supra,
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,[4] and (4) the child's particular needs. (In re Jerome D., supra,
Here, applying these factors, we note that (1) Angel is very young, too young to understand the concept of a biological parent; (2) she has spent relatively few hours visiting with Mother, versus many hours being parented by the foster family; (3) Mother and Angel's interactions have been positive, but nothing in the record indicates that, from Angel's point of view, the interactions were particularly like those of a child with her mother; and (4) there is no evidence that Angel has any particular needs that can be met by Mother but not by the foster family.
In addition, to justify application of section 366.26, subdivision (c)(1)(A), any relationship between Mother and Angel must be sufficiently significant that Angel would suffer detriment from its termination. (In re Melvin A, supra,
In contrast, if Mother's parental rights were not terminated, Angel would be denied a permanent, stable adoptive family with her own sibling, something that the Legislature has determined to be detrimental, as shown by its ranking of adoption as more desirable than long-term foster care or legal guardianship, and its streamlining of the dependency system to promote the prompt adoption of infants whose parents have failed to reunify with older siblings.
In a case factually similar to this one, the biological mother failed to establish that a sufficiently significant relationship existed between herself and her 16-month-old child such that termination of parental rights would be detrimental to the child. Although the mother acted lovingly and appropriately with her child during visits, the social worker indicated that the mother's relationship with the child was that of a "friendly visitor," that the child responded positively to anyone with whom she had some familiarity, and that the child's preference when she was tired, fussy, or needing reassurance was for her foster mother. (In re Casey D., supra,
In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly non-parent relative, such as an aunt. (In re Jason E. (1997)
DISPOSITION
The orders denying Mother's section 388 petition and terminating her parental rights are affirmed.
We concur: KITCHING, J, and ALDRICH, J.
NOTES
Notes
[1] All further statutory references are to the Welfare and Institution Code, except as otherwise noted.
[2] We recite only those background facts particularly needed for an understanding of the issues raised by this appeal, and do not go into detail as to the various procedural matters that accompany most dependency cases.
[3] The petition itself is marked "denied." The reporter's transcript contains comments implying that the juvenile court might have thought that the pending section 366.26 contested permanency plan hearing would take the place of the section 388 hearing. However, a contested section 366.26 hearing does not take the place of a hearing on a section 388 petition, and the erroneous denial without hearing of such a section 388 petition is not necessarily harmless, even though oral testimony is taken at another hearing. (See, e.g., In re Hashem H. (1996)
[4] The positive and negative effect of interaction may be shown by such things as, despite regular visitation by the parent, the fact that a child repeatedly expresses that he or she does not want to visit the parent (In re Lukas B. (2000)