In re K.L. et al., Persons Coming Under the Juvenile Court Law. MARIN COUNTY HEALTH AND HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. D.J., Defendant and Appellant.
No. A145648
First Dist., Div. Four.
May 25, 2016
[No. A145970. First Dist., Div. Four. May 25, 2016.]
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Steven M. Woodside, County Counsel, and Mari-Ann G. Rivers, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
STREETER, J.—These consolidated appeals arise from dependency proceedings involving three siblings: (1) K.L. (Older Brother), a boy born in October 2003, (2) K.L. (Sister), a girl born in November 2005, and (3) K.L. (Younger Brother), a boy born in June 2009. The children were removed from the custody of their mother, D.J. (Mother), in early 2011, and the juvenile court terminated reunification services to Mother later that year. In January 2015, after having spent several years in placements that included a guardianship and foster care, the children were living in three different homes, and the juvenile court determined those placements were appropriate. In May 2015, Mother filed a petition under
In these consolidated appeals, Mother challenges the order denying her section 388 petition and the order terminating her parental rights as to Sister and Younger Brother. Mother contends (1) the court erred by denying her section 388 petition without holding an evidentiary hearing, (2) there was not clear and convincing evidence Younger Brother was adoptable, and (3) the court should have applied the sibling relationship exception to termination of parental rights set forth in
A. The First Phase of Dependency Proceedings
1. Detention
On February 18, 2011, the Marin County Health and Human Services Department (the Department) filed a juvenile dependency petition on behalf of the children, alleging Mother had failed or was unable to supervise or protect them adequately (see
Police officers and a social worker who responded to the apartment after the fire reported it was in disarray. The apartment smelled of marijuana, and the officers found marijuana buds and residue in the apartment, some of which were accessible to the children.
The social worker spoke with Mother, who reported that the children‘s father passed away in August 2009. Mother stated she had been depressed since his death. Mother acknowledged the condition of her home. She acknowledged leaving her children at home unsupervised.
On February 17, 2011, the social worker spoke with the children‘s maternal aunt (Aunt). Aunt stated she had been concerned about the children for some time. Aunt believed Mother had a problem with marijuana; she had heard from Older Brother and the family‘s neighbors that Mother frequently left the children alone; and Mother had told Aunt that, just a few days earlier, Younger Brother had wandered out of the apartment while Mother was taking a nap, and a neighbor had found him in the street. Aunt stated she wished to be considered as a placement option for the children, and the Department began the assessment process. Mother supported placement of the children with Aunt.
The Department noted it had received referrals in 2008 and 2009 alleging neglect of the children. Although the Department had found those referrals to
The Department concluded Mother had a history of negligent and inadequate supervision of the children. The Department recommended continued detention of the children until Mother could address the issues that had put the children at risk. On February 22, 2011, consistent with the Department‘s recommendation, the court ordered the children detained and ordered that reunification services be provided to Mother.
2. Jurisdiction and Disposition
On March 21, 2011, the court amended the petition to eliminate an allegation about Mother‘s use of marijuana, and Mother submitted to the court‘s jurisdiction based on the amended petition. The court sustained the amended petition and ordered continued visitation and services.
In its April 2011 disposition report, the Department reported the children had been moved to the home of Aunt. At the disposition hearing, the court ordered the children removed from Mother‘s physical custody. The court ordered the Department to provide reunification services to Mother.
3. The Termination of Reunification Services
In an October 2011 report for the six-month review hearing, the Department recommended that reunification services to Mother be terminated. Mother had been evicted from her apartment in September 2011 for failure to pay rent, despite having the means to do so. Mother participated in supervised visits with the children for the first few months after they were detained. But after visitation became unsupervised, Mother‘s efforts to visit and call the children declined dramatically. Mother failed to submit to drug testing for several months, finally testing negative in October 2011. She failed to remain in therapy. She did not comply with other components of her case plan, including arranging for a physical examination and maintaining a clean and safe home environment for the children.
On October 17, 2011, the court found Mother had made minimal progress in addressing the problems that had led to the children‘s removal from Mother‘s custody. The court terminated reunification services to Mother and set a
In its February 2012 report for the
At the
In August 2012, the Department recommended that the court dismiss the dependency proceedings and order that Aunt remain the guardian of the children. Although Aunt experienced stress from caring for the three children, it appeared to the Department that she was handling the adversity well. On July 31, 2012, Aunt stated that Mother had only visited the children three times since the beginning of 2012. On August 20, 2012, the court dismissed the petition and terminated the dependency proceedings.
B. The Second Phase of Dependency Proceedings
1. The Termination of the Guardianship
In May 2014, the Department filed
At a hearing on June 30, 2014, the court in Marin County granted the Department‘s
2. Placement Changes
In September 2014, five-year-old Younger Brother was removed from the godparents’ home in Sacramento for safety reasons, after he engaged in aggressive behavior in the home and at school. Younger Brother bit another child in the godparents’ home on several occasions. He also choked himself, put glass in his mouth, stomped on the small family dog, and punched Older Brother, then 10 years old, in the stomach hard enough to cause him to vomit. At school, Younger Brother punched his teacher, hit other students and threw a book at a classmate‘s face.
Upon his removal from the godparents’ home, Younger Brother was placed in a foster home in Marin County. The children‘s CASA believed Younger Brother should instead be placed in a therapeutic foster home. In October and December 2014, the Department reported it was searching for an intensive treatment foster care home for Younger Brother, preferably located near his siblings. As of December 2014, he was being assessed for an individualized education plan at school. He was diagnosed with posttraumatic stress disorder.
In November 2014, it came to the attention of the godparents and the Department that Older Brother had engaged in inappropriate sexual behavior with other children in the home. He was removed from the godparents’ home and placed in an intensive therapeutic foster care home in Sacramento County. He was participating in individual therapy and receiving therapeutic behavioral services.
Sister remained in the godparents’ home.
3. Visitation
In late 2014, the court suspended visitation between the children and Mother, Aunt and Grandmother pending a determination by the children‘s therapists that visitation would be appropriate. In its report for a December 8, 2014 review hearing, the Department recommended that visitation remain suspended. The Department stated that earlier visits with Aunt and Grandmother had been emotionally taxing for the children. Older Brother and Sister
At the December 8, 2014 hearing, the court left in place the order suspending visitation pending further input from the children‘s therapists. The court also suspended visitation among the siblings.
4. The Section 366.26 Hearing in January 2015
In its report for the
At the hearing, the court found there was clear and convincing evidence that each of the children would be adopted. The court selected adoption as the permanent placement goal and ordered that efforts be made to find appropriate adoptive families. (See
5. Mother‘s Section 388 Petitions
On May 8, 2015, the Department filed notices of the continued
On May 20, 2015, Mother filed
The children‘s CASA filed a memorandum opposing the
Mother appealed the court‘s order denying her
6. The Termination of Parental Rights as to Sister and Younger Brother
In a June 2015 report for the
The Department reported that Sister remained in the home of her godparents, who wanted to move forward with adopting her. Younger Brother, who had been living in a therapeutic foster home since January 2015, was in the process of transitioning to an adoptive home in Solano County. While Younger Brother continued to have challenging behavioral issues, he had made significant progress in his most recent foster placement. The prospective adoptive parents had spent a significant amount of time getting to know Younger Brother since early April 2015 and were committed to moving forward with adopting him. Younger Brother was to move into the home on June 13, 2015.
In a supplemental report filed in July 2015, the Department reported that Younger Brother had moved into his prospective adoptive placement and was doing well there. The Department believed that, if this family could not adopt Younger Brother for any reason, the Department would be able to find another adoptive home for Younger Brother. The Department concluded both
At the
Mother appealed the orders terminating her parental rights as to Sister and Younger Brother (No. A145970). We granted Mother‘s motion to consolidate her two appeals.
II. DISCUSSION
A. The Denial of the Section 388 Petition
1. Legal Standards
Under
“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
After the termination of reunification services (which in this case occurred in October 2011), the goal of family reunification is no longer paramount, and “‘the focus shifts to the needs of the child for permanency and stability’ [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [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 [27 Cal.Rptr.2d 595, 867 P.2d 706] (Stephanie M.).)
We review a juvenile court‘s decision to deny a
2. Analysis
Mother‘s
First, Mother‘s assertion that placing the three children together would be in their best interests did not require the juvenile court to hold an evidentiary hearing. In its report for the
The record thus established that both boys needed a significant amount of individualized attention and support. Sister remained in the godparents’ home. She was doing well there, and the godparents wanted to adopt her. In light of the specific and differing needs of the three children as established by the history of the dependency case, Mother‘s categorical assertion in her
Second, in light of the children‘s specialized needs as illustrated by the history of the dependency case, Mother‘s general statements that the children are comfortable with Grandmother and that Grandmother can provide them with stability did not require the court to hold an evidentiary hearing. Mother‘s petition did not articulate any basis for concluding Grandmother would be better equipped than the children‘s caregivers to address their needs. Indeed, as the record of the dependency case showed, and as the juvenile court noted in denying Mother‘s petitions, Grandmother lived with Aunt during part of the period when Aunt emotionally and physically abused the children, and Grandmother apparently was unable to protect the children. After the children were removed from Aunt‘s home, Aunt reportedly made the children feel bad during visits by questioning their loyalty to their family. Grandmother was responsible for monitoring visits between the children and Aunt, but on one occasion Grandmother had a conflict with Aunt and left the
Finally, as to each of the three children, Mother did not allege facts that would rebut the presumption that continued foster care was in their best interests at this advanced stage of the dependency proceedings. All three children reportedly were doing well in their placements. Sister had lived with her godparents since early 2014 and was doing well there. The godparents wanted to adopt her. Mother alleged no facts in her
As Mother notes, Older Brother and Younger Brother have experienced more placement changes than Sister, and they were not in adoptive placements when Mother filed her
Older Brother had been removed from the godparents’ home in November 2014 due to his sexualized conduct, and had been placed in an intensive therapeutic foster home with no other children. He was reportedly doing well there, and the foster family was addressing his specialized needs. The children‘s CASA volunteer reported that Older Brother‘s foster family had been “able to provide a caring and supportive environment for [Older Brother], while at the same time providing structure and well defined limits.” Nothing in Mother‘s petitions suggested that Grandmother would be better able to provide the structure and support that were necessary in light of Older Brother‘s unique needs, or that it would be in Older Brother‘s best interest to be removed from his foster family.3
Younger Brother was removed from the godparents’ home in September 2014 due to his aggressive behavior and was placed in a foster home in Marin County. The children‘s CASA volunteer raised concerns about that foster home, and the Department sought to place Younger Brother in an intensive therapeutic foster home. In January 2015, Younger Brother was removed from his foster placement and placed in an emergency foster home, also in Marin County. According to the children‘s CASA volunteer, there was a “significant turnaround in [Younger Brother‘s] behavior” after he was placed in the emergency foster home. The foster parents in the emergency foster home “provided [Younger Brother] with a caring but structured environment, where [Younger Brother] appears to feel safe.” In February 2015, a prospective adoptive home was located for Younger Brother. The Department, in conjunction with Younger Brother‘s service providers, decided that a slow, planned transition to the new home was in Younger Brother‘s best interest. Beginning in April 2015, Younger Brother had several visits with the potential new parents and siblings, including overnight stays. These transitional visits went well. Younger Brother‘s move into his new placement was to be made after Younger Brother finished the school year (kindergarten), and was scheduled for June 13, 2015. Mother‘s petition alleged no facts that would support a conclusion that Grandmother would be better able to address Younger Brother‘s unique needs than the foster parents in his emergency foster placement, or that it would be in Younger Brother‘s best interest to be removed from that placement. Nor did the petition allege facts supporting a conclusion that it would be in Younger Brother‘s best interest to disrupt the transition to his prospective adoptive home, a transition that already was underway when Mother filed her petition in late May 2015.
In a memorandum of points and authorities submitted with her
We reject this argument.
In concluding that an evidentiary hearing on Mother‘s petitions was not warranted, the juvenile court noted that “for once these children are each receiving individualized attention that they have desperately needed for a long, long time.” The court further stated: “I can appreciate the importance and the preference for placing children together; but that is by no means absolute and it has to be weighed against their individual best interests, which is how I am looking at it here.” The record of the dependency proceeding, as outlined above, supports the court‘s conclusion that the children‘s separate placements were in their best interests in the circumstances of this case. In light of that record, the general assertions in Mother‘s petitions that the children would be better off if they were removed from their placements and placed together with Grandmother did not constitute a prima facie showing that required the juvenile court to hold an evidentiary hearing on the petitions.
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III. DISPOSITION
The order denying Mother‘s
Ruvolo, P. J., and Reardon, J., concurred.
*See footnote, ante, page 52.