California Court of Appeal Jul 11, 2014 No. E060278Unpublished
Filed 7/11/14 In re D.J. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.J., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E060278
Plaintiff and Respondent, (Super.Ct.No. RIJ120470)
v. OPINION
T.W.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,
Judge. Affirmed.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela J. Walls, County Counsel, and Anna W. Wang, Deputy County Counsel,
for Plaintiff and Respondent.
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I. INTRODUCTION
In this juvenile dependency proceeding, defendant T.W. (Mother) appeals from
orders (1) denying her request to change court order pursuant to Welfare and Institutions
Code section 3881 (section 388 petition) and (2) terminating her parental rights with
respect to her son, D.J. Because we find no error, we will affirm the court’s orders.
“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], and in
fact, there is a rebuttable presumption that continued foster care is in the best interests of
the child. [Citation.]” (In re Stephanie M., supra, 7 Cal.4th at p. 317, quoting In re
Marilyn H. (1993) 5 Cal.4th 295, 309.) Still, “[s]ection 388 plays a critical role in the
dependency scheme. Even after family reunification services are terminated and the
focus has shifted from returning the child to his parent’s custody, section 388 serves as an
‘escape mechanism’ to ensure that new evidence may be considered before the actual,
final termination of parental rights. [Citation.] It ‘provides a means for the court to
address a legitimate change of circumstances’ and affords a parent her final opportunity
to reinstate reunification services before the issue of custody is finally resolved.” (In re
Hunter S. (2006) 142 Cal.App.4th 1497, 1506.)
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The court’s findings in this case are supported by the record and its conclusion is
not an abuse of discretion. Mother had been using drugs, in her words, “‘off an[d] on’
over the years.” This indicates a long history of using drugs, then not using drugs, and
relapsing. Shortly before this dependency case began, Mother had been sober for two
years before relapsing. After the case began, she completed an inpatient program at MFI,
then relapsed three months later. One year later, in May 2012, she completed an inpatient
program at A Woman’s Place, then relapsed again, testing positive for amphetamines in
October and November 2012. At the time of the hearing on the section 388 petition,
Mother had completed the “primary phase” and “Transition Phase” of treatment at
Whiteside Manor and had moved to the “Independent Living Program phase of
treatment.” According to the letter from Whiteside Manor submitted in support of
Mother’s petition, in this third phase Mother “will be required to submit to drug testing,
daily monitoring, medication/psychiatric management, and building of independent living
skills with weekly counseling sessions.”
Mother’s achievements so far in the Whiteside Manor programs are, as the trial
court noted, commendable. However, the court could also reasonably conclude that her
current sobriety while under Whiteside Manor’s oversight does not ensure a relapse-free
future. Although she had been sober for the 11 months preceding the hearing date, she
had also recently been sober for a two-year period before relapsing. Because of her long
history of substance abuse and repeated relapses, the court’s conclusion that Mother’s
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conditions were “changing, not yet fully changed,” is reasonable and not an abuse of
discretion.
Mother relies on the following facts to support her argument: Her effort to seek
and resume treatment following relapses shows her commitment to changing her life; she
has benefitted from her counseling programs; the positive drug tests in 2011 and 2012
“were only a handful” compared with the number of negative tests; her “sporadic and
brief periods of drug use” did not harm D.J.; she has been sober since January 11, 2013,
and has eliminated the friends who were a “bad influence” on her; a change in her
medication has made a positive difference; the Whiteside Manor letter supports her
claim; and she has a job. These facts were before the trial court and undoubtedly
influenced the court’s statement that Mother had made “great strides” in the preceding
year. They do not, however, compel us to conclude that the court’s finding of changing,
but not changed, circumstances was unreasonable.
We further conclude that the court’s determination as to D.J.’s “best interests” is
not an abuse of discretion. Mother’s section 388 petition was presented on the day of the
section 366.26 hearing. At that time, this case was more than three years old, D.J. had
just turned six, and he had been out of Mother’s care for more than one year. At this late
point in the dependency proceeding, “the child’s interest in stability is the court’s
foremost concern, outweighing the parent’s interest in reunification.” (In re Ramone R.
(2005) 132 Cal.App.4th 1339, 1348; see also In re Anthony W. (2001) 87 Cal.App.4th
246, 251.)
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D.J.’s prospective adoptive parent, his paternal grandfather, has known D.J. since
D.J.’s birth and they have had a “close relationship” for the last five years. The paternal
grandfather is now able to devote his “full attention” to D.J. and has made D.J. his “first
priority.” D.J. had been placed with the paternal grandfather six months before the
hearing on the section 388 petition with a view to adoption. D.J. thereafter “made the
adjustment to living with his paternal grandfather” and became “very attached to his
paternal grandfather.” In the preliminary assessment of the paternal grandfather as the
prospective adoptive parent, social workers noted that D.J. “was observed to have a
strong bonded relationship to the prospective adoptive father” and “observed to go to him
for love, assurance and guidance.” D.J. agreed with the plan of adoption and told the
social worker he “wants to stay with his grandfather and not anyone else.”
Mother acknowledges the close relationship D.J. has with the paternal grandfather,
but asserts that he has an “equally-strong emotional tie to [her].” D.J., she argues, lived
with Mother for the majority of his life and “shared a loving and positive relationship
with her since birth.” Mother, however, was still participating in the Whiteside Manor
independent living program and, in her words, it was “going to take a while” before she
would be able to get her own residence. The permanency and stability that would benefit
D.J., therefore, would have to wait. Thus, even if we accept Mother’s assertion that
D.J.’s relationship with the paternal grandfather and Mother are “equally-strong,” the trial
court could reasonably conclude that D.J.’s best interests were served by denying
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Mother’s section 388 petition. The court’s ruling was, therefore, not an abuse of
discretion.
B. Parental Benefit Exception to Adoption
At a section 366.26 permanency planning hearing, the juvenile court determines a
permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38,
50.) Permanent plans include adoption, guardianship, and long-term foster care. (In re
S.B. (2008) 164 Cal.App.4th 289, 296.) “Adoption, where possible, is the permanent
plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)
Adoption involves terminating the legal or parental rights of the child’s natural
parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 574.) In order to avoid
termination of parental rights and adoption, a parent has the burden of showing that one
or more of the statutory exceptions to termination of parental rights set forth in section
366.26, subdivision (c)(1)(A) or (B) apply. (In re Scott B. (2010) 188 Cal.App.4th 452,
469.) The exceptions permit the court, “in exceptional circumstances,” “to choose an
option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th
45, 53.)
The so-called parental benefit exception applies when there is “a compelling
reason for determining that termination [of parental rights] would be detrimental to the
child due to . . . the following circumstances: [¶] . . . 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).) “Benefit,” for this purpose, means that
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“the well-being of the child [is promoted] 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.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
We apply the substantial evidence standard of review to factual issues, such as the
existence of a beneficial parental relationship, and the abuse of discretion standard to the
discretionary determination of whether there is a compelling reason for finding that
termination would be detrimental to the child. (In re J.C. (2014) 226 Cal.App.4th 503,
530-531; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315; In re K.P. (2012) 203
Cal.App.4th 614, 621-622.) The analysis under either standard of review is essentially
the same under both standards. As one court explained: “‘[E]valuating the factual basis
for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the
ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should
interfere only “‘if [it] find[s] that . . . no judge could reasonably have made the order that
he did.’ . . .”’ [Citations.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Here, there is no dispute that Mother satisfied the threshold requirement of the
parental benefit exception—she maintained regular visits and contact with D.J. We can
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also assume for purposes of our analysis that Mother and D.J. had a beneficial parent-
child relationship. Mother did not, however, establish that D.J. “would be greatly
harmed” by terminating Mother’s parental rights. (In re B.D. (2008) 159 Cal.App.4th
1218, 1235.)
There is nothing in any of the social workers’ reports to suggest that D.J. would
suffer great harm as a result of proceeding with adoption and terminating Mother’s
parental rights. Indeed, there is ample support for the contrary conclusion. The paternal
grandfather, as the prospective adoptive parent, could provide not only the stability and
permanency for D.J. that comes with adoption, but also “a home free from drugs and
domestic violence.” Social workers reported that D.J. and the paternal grandfather have a
“strong” and “special” relationship, that D.J. has adjusted to living with the paternal
grandfather, and that D.J. “wants to stay with his grandfather and not anyone else.”
The only evidence that D.J. would suffer any detriment as a result of terminating
parental rights is Mother’s testimony that “it would be traumatic for [D.J.] to lose [her].”
The court could, however, reject Mother’s opinion on this point or consider it outweighed
by the evidence pointing to the benefits of adoption and the absence of detriment
resulting from the termination of parental rights.
Mother relies on In re S.B., supra, 164 Cal.App.4th 289 and In re Amber M.
(2002) 103 Cal.App.4th 681. Both are distinguishable. In In re S.B., a bonding study
described the bond between the child and parent as “‘fairly strong’ or ‘moderate.’” (In re
S.B., supra, at p. 295.) “During the study, S.B. sat in [the father’s] lap, played games and
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colored. [The father] was responsive to her requests. In the middle of coloring, S.B. said
to [the father], ‘I love you,’ and he responded in kind. S.B. whispered and joked with
[the father] and then spontaneously said, ‘I wish I lived with you and Mommy and
Nana.’” (Ibid.) At the hearing, the author testified that “because the bond between [the
father] and S.B. was fairly strong, there was a potential for harm to S.B. were she to lose
the parent-child relationship.” (Id. at p. 296.) The trial court found that the beneficial
relationship exception did not apply and the Court of Appeal reversed. (Id. at p. 301.)
In explaining the reasons for reversing the trial court, the In re S.B. court stated:
“For the first year after she was removed from parental custody, S.B. continued to display
a strong attachment to [the father]. She was unhappy when visits ended and tried to leave
with [the father] when the visits were over. [The father] was sensitive to S.B.’s needs.
Social worker Brown noted, ‘[the father] consistently puts his daughter[’]s needs and
safety before his own.’ S.B. responded to [the father’s] attention. During one visit, S.B.
‘sat on [the father’s] lap . . . [and] proudly showed off the pink tennis shoes he had
bought her.’ The record clearly establishes S.B. initiated physical contact with [the
father]. Dr. Kelin observed that S.B. ‘ran into [the father’s] arms, again getting her father
to pick her up.’ [The father] and S.B. shared an affectionate relationship. S.B. ‘nestle[d]
up to [the father’s] neck’ and ‘whispered and joked with him.’ The record also shows
S.B. loved [the father] and wanted their relationship to continue. S.B. whispered to her
father, ‘I love you.’ As [the father] started to leave, S.B. stated, ‘I’ll miss you,’ and then
she gave him another hug. S.B. spontaneously said, ‘I wish I lived with you and Mommy
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and Nana.’” (In re S.B., supra, 164 Cal.App.4th at p. 298.) The court concluded: “The
record shows S.B. loved her father, wanted their relationship to continue and derived
some measure of benefit from his visits. Based on this record, the only reasonable
inference is that S.B. would be greatly harmed by the loss of her significant, positive
relationship with [the father].” (Id. at pp. 300-301.)
The present case is distinguishable from In re S.B. The child’s clear desire to live
with the parent in that case is not present here. Although D.J. described visits with
Mother as “good,” there is little evidence that he shared the kind of affection for Mother
that the child expressed for her father in In re S.B. More importantly, in contrast to S.B.’s
expressed desire to live with her father, D.J. indicated to the social worker that he agreed
with the plan for adoption and wanted to live with the paternal grandfather. Because of
the factual differences between this case and In re S.B., that case is not controlling here.
In In re Amber M., there was evidence by a psychologist that the mother and the
dependent child “shared ‘a primary attachment’ and a ‘primary maternal relationship’ and
that ‘[i]t could be detrimental’ to sever that relationship.” (In re Amber M., supra, 103
Cal.App.4th at p. 689.) Here, there was no similar expert evidence and, as set forth
above, ample contrary evidence. Accordingly, it is distinguishable from this case.
For the foregoing reasons, and based on our review of the entire record, we
conclude that the court did not abuse its discretion in determining that the parental benefit
exception to adoption did not apply in this case
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IV. DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
22
AI Brief
AI-generated · verify before citing
Holding. The court did not abuse its discretion in denying the mother's section 388 petition for modification or in terminating her parental rights, as the mother's circumstances were changing but not fully changed and the child's need for stability outweighed the parental bond.
Issues
Did the juvenile court abuse its discretion by denying the mother's section 388 petition for modification?
Did the juvenile court err in finding that the parental benefit exception to adoption did not apply?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“At this late point in the dependency proceeding, “the child’s interest in stability is the court’s foremost concern, outweighing the parent’s interest in reunification.””