California Court of Appeal Jan 31, 2014 No. E059089Unpublished
Filed 1/31/14 In re A.G. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.G. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E059089
Plaintiff and Respondent, (Super.Ct.Nos. J234539, J234540 & J234541) v. OPINION J.G.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl S. Kersey,
Judge. Affirmed.
Siobhan M. Bishop, under appointment by the Court of Appeal, for Defendant and
Respondent.
Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for
Plaintiff and Respondent.
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I
INTRODUCTION
Mother appeals the juvenile court’s order terminating parental rights to her son,
T.G. (almost nine years old), and daughters, S.G. (eight years old) and A.G. (six years
old). She also challenges the court’s order denying her Welfare & Institutions Code1
section 388 petition to change the court’s order terminating reunification services and
Even if an adoptive family is not readily available, the juvenile court may find a
child generally adoptable. (In re I.I., supra, 168 Cal.App.4th at p. 870.) “The issue of
adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the
minor’s age, physical condition, and mental state make it difficult to find a person willing
to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a
potential adoptive home or that there be a proposed adoptive parent ‘waiting in the
wings.’ [Citations.]” (In re Sarah M., supra, 22 Cal.App.4th at p. 1649; In re I.I., supra,
168 Cal.App.4th at p. 870.) “However, the court must find by clear and convincing
evidence that it is likely the child will be adopted within a reasonable time.” (I.I., at p.
870; Brian P., supra, 99 Cal.App.4th at p. 624.)
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A child who is not generally adoptable may be specifically adoptable, that is,
adoptable “because a prospective adoptive family has been identified as willing to adopt
the child.” (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) “[T]he fact that a
prospective adoptive family has been identified is an indication that the child is likely to
be adopted within a reasonable time. ‘“Usually, the fact that a prospective adoptive
parent has expressed interest in adopting the minor is evidence that the minor’s age,
physical condition, mental state, and other matters relating to the child are not likely to
dissuade individuals from adopting the minor. In other words, a prospective adoptive
parent’s willingness to adopt generally indicates the minor is likely to be adopted within a
reasonable time either by the prospective adoptive parent or by some other family.”
[Citation.]’ [Citation.]” (In re I.I., supra, 168 Cal.App.4th at p. 870; In re Asia L. (2003)
107 Cal.App.4th 498, 510.)
Here, the willingness of a Cherokee Indian family to adopt the children supports
the finding of specific adoptability. Mother argues that this is an insufficient basis for
finding the children adoptable because the family had never met the children and T.G.
had severe behavioral problems which resulted in his removal from the children’s foster
home. In addition, the children were part of a large sibling group, which made adoption
more difficult. Mother argues that there was no showing that any other family was
willing to adopt the children if the prospective adoption fell through or that the children
were generally adoptable. But “[s]ince it is not even necessary that one prospective
adoptive home be identified before a child may be found adoptable, a fortiori, it is not
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necessary that backup families be identified.” (In re I.I., supra, 168 Cal.App.4th at p.
870.)
Mother argues that, while the children may have been specifically adoptable, they
were not generally adoptable, primarily because of T.G.’s serious behavioral problems.
Three months before the contested section 366.26 hearing, he was removed from the
children’s original foster home because the foster mother could no longer handle him.
Mother asserts there was no evidence the prospective adoptive family was aware of
T.G.’s severe behavioral problems and would follow through with adoption of the three
children.
Although T.G. was removed from the children’s original foster home in February
2013, because of behavioral problems, there was nevertheless sufficient, credible
evidence to support a finding that the children were generally adoptable and would be
adopted within a reasonable period of time. The children had lived together in the same
foster home for 23 months, indicating it was likely another family would be willing to
adopt the sibling set. Furthermore, CFS reported in July 2012, that the children were
healthy, had no chronic medical conditions, had met their developmental milestones, and
enjoyed playing together. They were relatively young (ages six, seven, and eight when
parental rights were terminated). S.G. and A.G. had few, if any, behavioral issues.
The CFS social worker and Indian expert both concluded the children, including
T.G., were adoptable, even though they had mild emotional/behavioral issues. In
addition, CFS reported that the prospective adoptive family had an approved adoption
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home study completed by the Cherokee Nation. The CFS social worker reviewed the
home study and found the home suitable for the children. The supplemental report
contained personal information about the prospective adoptive parents, including their
health, finances, education, employment, and home. CFS reported that the prospective
adoptive family wanted to proceed with adoption of the children.
The CFS social worker further noted in the report that, although T.G. had been
removed from his original foster home because of behavioral problems, “his behavior has
greatly improved in the two months he has been in his current foster home. He no longer
has out of control tantrums. He appears to respond well to having a strong father figure
in the home. [T.G.] does continue to show some disrespect toward the foster mother and
women in general. This is improving and it is believed the prospective adoptive parents
are confident in their parenting abilities and will be able to redirect and handle any
inappropriate behavior. The prospective adoptive mother has successfully assumed the
role of step mother to her husband’s children. Furthermore, the alleged incident of sexual
acting out by [T.G.] was investigated and determined to be unfounded.”
Based on the evidence in the record, we conclude that the juvenile court’s finding
of adoptability is supported by substantial evidence. We note that, even if adoption by
the children’s prospective adoptive family falls through, the children are not in danger of
becoming orphans. Under the current statute, section 366.26, subdivision (i)(2), added in
2005, if a child has not been adopted after three years following the termination of
parental rights, the child may petition the juvenile court to reinstate parental rights.
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(Stats. 2005, ch. 640, § 6.5.)
VI
SECTION 388 PETITION
Mother contends the juvenile court erred in summarily denying her section 388
petition. She argues she made a prima facie showing of changed circumstances and that
modification of the court’s order was in the children’s best interests.
A. Applicable Law
Section 388 allows a person having an interest in a dependent child of the court to
petition the court for a hearing to change, modify, or set aside any previous order on the
grounds of change of circumstance or new evidence. The petition must be verified and
“set forth in concise language any change of circumstance or new evidence that is alleged
to require the change of order or termination of jurisdiction.” (§ 388, subd. (a)(1); Cal.
Rules of Court, rule 5.570(a).) The petitioner must “make a prima facie showing to
trigger the right to proceed by way of a full hearing. [Citation.]” (In re Marilyn H.
(1993) 5 Cal.4th 295, 310; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) There are
two parts to the prima facie showing: The petitioner must demonstrate (1) a genuine
change of circumstances or new evidence, and that (2) revoking the previous order would
be in the best interests of the child. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
“If the liberally construed allegations of the petition do not show changed circumstances
such that the child’s best interests will be promoted by the proposed change of order, the
dependency court need not order a hearing.” (Anthony W., at p. 250; In re Zachary G.
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(1999) 77 Cal.App.4th 799, 806.)
The court is given broad discretion to deny a hearing if the request for
modification fails to state a change of circumstances or new evidence or fails to
demonstrate that the requested modification is in the best interests of the child. (Cal.
Rules of Court, rule 5.570(d)(1) & ( 2); In re Zachary G., supra, 77 Cal.App.4th at p.
808.)
B. Section 388 Petition Factual and Procedural Background
Mother requested in her section 388 petition modification of the March 27, 2012
order terminating reunification services. She requested return of the children to her or,
alternatively, reinstatement of reunification services and liberalized visitation. Mother
alleged her changed circumstances included mother completing outpatient and aftercare
programs, attending college, maintaining a full-time job, and attending sexual abuse
prevention, domestic violence and parenting on line courses. Mother had also requested
a restraining order against father and was in the process of divorcing him. Mother
alleged granting her section 388 petition was in the children’s best interests because she
was “their mother who loves them more than anyone could possibly love them and they
love me back.” She believed the children would be happiest with her, and she would
protect and care for them.
Attached to her section 388 petition were certificates from Summit Career College
for perfect attendance and academic achievement (awarded between February 2012 and
July 2012), college progress reports and attendance ledgers through June 2012, a
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February 2012 recommendation letter from an instructor, certificates of completion, from
January 2012 through February 2012, for parenting and substance abuse programs, work
paystubs, negative drug test results for the period of December 2011 through July 2012
and a February 2012 letter from her MFI substance abuse treatment counselor, stating
that mother’s prognosis was good because she was motivated to change her life and had
learned the tools for maintaining sobriety. Also attached was documentation showing
mother was employed by Summit Career College Inc. from April through July 2012. In
addition, there were copies of “Western Unionr Reloadable Prepaid Cards,” totaling
$800, with a handwritten notation the payment was for a “deposit for house.”
In CFS’s response to mother’s section 388 petition, filed on May 8, 2013, CFS
social worker, Sandy Parker, reported that, since the inception of the case in September
2010, parents remained inconsistent in their treatment and goals. They were frequently
transient and did not complete their programs until February 2012, a month before
termination of reunification services. After services were terminated in March 2012,
mother continued her schooling and worked at the college. When asked where she was
living, mother provided vague information and said she did not know what her address
was. When CFS investigated where mother was living in December 2012, CFS
discovered mother was living again in an uninhabitable home with two of her older
children. Mother had continued to visit the children but her interaction with the children
had been somewhat detached and she lacked control over the children. In addition,
mother was visiting the children with a man who had a long criminal record, admitted to
30
being a gang member, and had an outstanding warrant, even though mother was told the
man was not to accompany her to visits.
At the contested section 366.26 hearing on May 8, 2013, mother requested a
hearing on her section 388 petition. The court stated that it had reviewed mother’s
documents attached to her section 388 petition and “Everything is from, for the most part,
2012, so none of this is change of circumstances that would show prima facie.” The
court concluded that the petition essentially repeated what was presented when services
were terminated. Therefore the court summarily denied mother’s section 388 petition.
C. Discussion
Mother argues the juvenile court erred in summarily denying her section 388
petition without a hearing. She notes that when the juvenile court terminated
reunification services on March 27, 2012, the court told her: “[P]arents are continuing on
with their programs. And the court would invite you to continue to complete whatever
you need to complete. Show that you’ve got housing. Show that you have a means of
financial ability. Show that you’ve completed all your programs. And show that you
have remained sober and not using drugs over the course of the next couple months.
And, the court is confident that, that would be all the makings of a 388 petition for your
respective request to the court to change the plan for the children.”
Mother asserts that she established in her petition that she had met all these
requirements. She attached to her section 388 petition, college certificates of perfect
attendance and academic achievement, progress reports, a college instructor
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recommendation letter, certificates of completion for parenting and substance abuse
programs, work paystubs, negative drug test results, and a favorable letter from her
substance abuse treatment counselor. Mother argues that, contrary to the juvenile court’s
conclusion there was no prima facie showing of changed circumstances, a significant
portion of the evidence supporting her section 388 petition was from after the March 27,
2012 hearing terminating reunification services.
Although some of the evidence submitted with mother’s section 388 petition,
reflected activity after the March 27, 2012 hearing, there was no prima facie showing of
changed circumstances. Most of the supporting evidence showed the same circumstances
that existed when the court terminated reunification services. Mother was still going to
school and working, as before, and she remained sober, as before. The only evidence of
activity after the March 27, 2012 hearing consisted of college attendance and academic
performance certificates, from the period of April 2012 through July 2012; continuing
negative drug test results, from the period of April 2012 through July 2012; and
continuing employment at the college.
The juvenile court reasonably concluded this evidence was not sufficient to
establish a prima facie showing of changed circumstances, particularly when there was
no evidence mother had attended sexual abuse counseling, completed a domestic violence
program, or obtained suitable housing for the children. There was also no evidence of
current sobriety. Mother completed her drug treatment programs shortly before the
March 27, 2012 hearing, and the last drug test was in July 2012. Mother’s section 388
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petition also did not demonstrate that ordering additional reunification services or
returning the children to her custody was in the children’s best interests. Mother’s
section 388 petition did not show that her bond with the children was strong or that she
had sufficiently addressed the problems that led to the children’s dependency, including
an uninhabitable home, risk of sexual abuse, and exposure to domestic violence. We
therefore conclude the juvenile court did not abuse its discretion in denying a hearing on
mother’s section 388 petition and summarily denying the petition.
VII
BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION
Mother contends the trial court erred in failing to apply the beneficial parental
relationship exception to adoption. She argues she consistently visited the children and
established that the children would benefit from continuing her relationship with them.
If a dependent child is adoptable, the juvenile court must terminate parental rights
at the section 366.26 hearing unless the parent proves the existence of a statutory
exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One
such exception exists if “[t]he parent[] [has] maintained regular visitation and contact
with the child and the child would benefit from continuing the relationship.” (§ 366.26,
subd. (c)(1)(B)(i).) A beneficial relationship is one that “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. (1994) 27 Cal.App.4th 567, 575.)
The existence of this relationship is determined by considering “[t]he age of the child, the
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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 . . . .” (Id. at p.
576.)
There is a split of authority on the standard of review for section 366.26 orders.
Most courts apply the substantial evidence standard (In re Autumn H., supra, 27
Cal.App.4th at p. 575), but at least one court has used the abuse of discretion standard (In
re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351). Recently some courts have applied
both standards, which we find to be appropriate here. A “juvenile court’s decision
whether an adoption exception applies involves two component determinations: a factual
and a discretionary one. The first determination—most commonly whether a beneficial
parental or sibling relationship exists . . . —is, because of its factual nature, properly
reviewed for substantial evidence. [Citation.] The second determination . . . is whether
the existence of that relationship . . . constitutes ‘a compelling reason for determining that
termination would be detrimental to the child.’ [Citation.] This ‘“quintessentially”
discretionary decision . . .’ is appropriately reviewed under the deferential abuse of
discretion standard. [Citation.]” (In re K.P. (2012) 203 Cal.App.4th 614, 622.) “On
review of the sufficiency of the evidence, 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.” (Autumn H., at p. 576.)
Examining the evidence in the light most favorable to the judgment, we conclude
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that although mother visited regularly, the court’s finding that the benefits of adoption
outweighed the children’s bond with mother was supported by substantial evidence and
not an abuse of discretion. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577; In re
Cristella C. (1992) 6 Cal.App.4th 1363, 1373.) The juvenile court concluded the
beneficial parental relationship exception did not apply because, although mother
maintained regular visitation and contact with the children, “that visitation has not
escalated or improved to an actual bond with the children.” After termination of
reunification services, mother continued visiting the children once a week, for one hour,
at the CFS office. Mother testified that she also talked to T.G. every night on the phone.
Although mother had consistently visited the children, mother had never had
unsupervised or extended visits and, according to the social worker, mother “was not real
interactive” with the children during visits. During a recent visit in April 2012, the
children frequently hit each other and threw toys. Mother did not attempt to stop them or
attempt to correct their inappropriate behaviors. The children reportedly were not upset
when visits were cancelled. CFS reported in its May 8, 2013 report, that mother had
continued to visit the children but her interaction with the children had been “somewhat
emotionless” and the parents often had little control over the children. In addition, the
CFS social worker reported that mother had been visiting the children with a man who
had a long criminal record and admitted to being a gang member. Even though mother
was told she could not bring her companion to visits with the children, she did so,
indicating she was willing to place her children at risk of abuse by others.
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Mother has not established there were exceptional circumstances that required
applying the beneficial parental relationship exception. Although mother consistently
visited the children, her visits were brief and supervised, and mother did not currently
hold a parental role in the children’s lives nor was she closely bonded with the children.
When the children were initially removed from mother’s care, they were young (ages
three, four, and five years old). By the time of the section 366.26 hearing in May 2013,
they had been in foster care for nearly 33 months, which was a significant portion of their
young lives. The court reasonably rejected the beneficial parental relationship exception,
since the children’s need for a permanent and stable home outweighed any benefit in
maintaining the children’s relationship with mother.
VIII
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the termination of parental rights, finding sufficient evidence of the children's adoptability, compliance with the Indian Child Welfare Act (ICWA), and the absence of a beneficial parental relationship. The court also upheld the summary denial of the mother's section 388 petition due to a lack of changed circumstances.
Issues
Did the juvenile court err in finding the children were adoptable and that CFS complied with ICWA requirements?
Did the juvenile court err in summarily denying the mother's section 388 petition?
Did the juvenile court err in failing to apply the beneficial parental relationship exception to the termination of parental rights?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the juvenile court ruled the beneficial parental relationship exception to adoption did not apply because “visitation has not escalated or improved to an actual bond with the children.””
“the court summarily denied mother’s section 388 petition, without a hearing, concluding there was no evidence of any change of circumstances.”