California Court of Appeal Oct 19, 2015 No. D067707Unpublished
Filed 10/19/15 In re A.R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.R., a Person Coming Under the Juvenile Court Law. D067707 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3753) Plaintiff and Respondent,
v.
HUGO R. et al.,
Defendants and Appellants.
APPEALS from orders and judgments of the Superior Court of San Diego County,
Kimberlee A. Lagotta, Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant Hugo R.
Michele Anne Cella, under appointment by the Court of Appeal, for Defendant
and Appellant Rachel F.
Thomas E. Montgomery, County Counsel, John E. Philips and Dana C. Shoffner,
Deputy County Counsel, for Plaintiff and Respondent.
In November 2013 A.R., who was then almost three months old and is now over
two years old, was removed from her father Hugo R. (Hugo or father) and mother Rachel
F. (mother) (together the parents) when police found A.R. unsupervised in the father's car
after he had attempted to break into a tattoo shop and then had fled the scene. The father
and mother had a history of domestic violence in their relationship and the father had a
At the hearing on a section 388 petition, the petitioner has the burden of showing
by a preponderance of the evidence that (1) there is a change of circumstances or new
evidence, and (2) the requested modification would be in the best interests of the child.
(In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); In re Mickel O. (2011) 197
Cal.App.4th 586, 615 (Mickel O.).)
Whether there is a change in circumstances or new evidence that makes the
requested modification in the best interests of the child "is determined by the seriousness
of the problem leading to the dependency and the reason for its continuation; the strength
of the parent-child and child-caretaker bonds and the time the child has been in the
system; and the nature of the change of circumstance, the ease by which it could be
2 Section 388, subdivision (a) provides that "[a]ny 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. . . ." (Italics added.) That subdivision also provides that the petition, "if made by a person other than the child . . . shall set forth in concise language any change of circumstance or new evidence that is alleged to require such change of order or termination of jurisdiction." (Italics added.) 19
achieved, and the reason it did not occur sooner." (In re Amber M. (2002) 103
Cal.App.4th 681, 685.)
"[T]he petitioner must show changed, not changing, circumstances." (Mickel O.,
supra, 197 Cal.App.4th at p. 615; In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey
D.).)
The California Supreme Court has explained that "[o]nce reunification services are
ordered terminated, the focus shifts to the needs of the child for permanency and
stability," and the juvenile court "need not continue to consider the issue" at the section
366.26 permanent plan selection and implementation hearing. (In re Marilyn H. (1993) 5
Cal.4th 295, 309 (Marilyn H.).) "The burden thereafter is on the parent to prove changed
circumstances pursuant to section 388 to revive the reunification issue." (Ibid.)
Thus, a section 388 petition filed on the eve of a section 366.26 hearing, like an
oral motion made under section 388 at the time of the section 366.26 hearing, is
disfavored. (In re Edward H. (1996) 43 Cal.App.4th 584, 594 (Edward H.) ["on the eve
of the section 366.26 permanency planning hearing─the children's interest in stability
was the court's foremost concern and outweighed any interest in reunification"]; In re
Baby Boy L. (1994) 24 Cal.App.4th 596, 609 ["the court is not required to entertain an
oral motion under section 388 at the time set for the [section] 366.26 hearing"].)
2. Standard of review
The juvenile court is vested with broad discretion in determining what will be in
the best interest of a child and, when a court has made a custody determination in a
dependency proceeding, "'"a reviewing court will not disturb that decision unless the trial
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court has exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination [citations]."'" (Stephanie M., supra, 7 Cal.4th at p. 318.)
"'Whether a previously made order should be modified rests within the dependency
court's discretion, and its determination will not be disturbed on appeal unless an abuse of
discretion is clearly established.' [Citation.] The denial of a section 388 motion rarely
merits reversal as an abuse of discretion." (In re Amber M., supra, 103 Cal.App.4th at
pp. 685-686.)
"'The appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more inferences can reasonably be deduced from the
facts, the reviewing court has no authority to substitute its decision for that of the trial
court.'" (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
B. Analysis
1. Mother's petition
The court did not abuse its broad discretion when it found the mother had failed to
meet her burden of showing either that there was a change of circumstances warranting
modification of the court's order terminating her reunification services, or that the
modification would be in A.R.'s best interest. We begin our analysis by noting the
mother's petition is disfavored under the law. A section 388 petition filed on the eve of a
section 366.26 hearing is disfavored because at this stage of the dependency proceedings,
after the termination of reunification services, the child's interest in permanency and
stability is the court's foremost concern and generally outweighs any interest in
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reunification. (Marilyn H., supra, 5 Cal.4th at p. 309; Edward H., supra, 43 Cal.App.4th
at p. 594.)
Here, the mother's section 388 petition is disfavored because she filed it on
February 27, 2015, almost six months after the court terminated her reunification services
on September 4, 2014, and only a few days before the contested section 366.26 hearing
on March 3, 2015.
The mother contends the court erred in denying her petition because the change of
circumstances she pleaded in her petition─her enrolling in Job Corps, finishing high
school, and re-entering dependency as a non-minor dependent─was relevant to the
dependency proceedings in that "it could resolve her financial dependence on an abusive
boyfriend."
This contention is unavailing because, while the mother's pursuit of her
educational and vocational goals is laudable, the record shows she has made little effort
to address the reasons why A.R. was declared a dependent of the juvenile court and why
the mother's reunification services were terminated. A.R. became a dependant of the
court as a result of A.R.'s exposure to the domestic violence in the parents' relationship
and their demonstrated inability to adequately supervise A.R. To address those problems,
the mother's reunification case plan required her to participate in a domestic violence
victim program, a psychological evaluation, individual counseling, and parent education.
At the September 2014 contested six-month status review hearing at which the court
terminated the mother's reunification services, the court determined she had not made
substantive progress with the provisions of her case plan. The Agency's July 2014 six-
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month status review report reported that the mother had not been meeting with the
assigned social worker to talk about her case, and the mother had failed to participate in
any of the services, with the exception of the psychological evaluation. The report also
showed the mother had not consistently visited A.R. during the preceding six months. In
its September 2014 addendum report, the Agency reported that the mother had not visited
A.R. since June 24 and she had told the social worker she was no longer interested in
participating in reunification services.
A petitioner seeking relief under section 388 must show changed, not changing,
circumstances. (Mickel O., supra, 197 Cal.App.4th at p. 615; Casey D., supra, 70
Cal.App.4th at p. 47.) Here, the foregoing substantial evidence supports the court's
finding that the mother had failed to meet her burden of showing a change of
circumstances warranting modification of the court's order terminating her reunification
services. We conclude the court acted within its legal discretion in denying the mother's
section 388 petition because the evidence shows, at best, that the mother's circumstances
were merely changing, and thus A.R.'s interest in permanency and stability outweighed
the mother's interest in last-minute reinstatement of reunification services.3
2. Father's petition
The father's section 388 petition, like the mother's, is disfavored under the law
because he filed it on the eve of the section 366.26 hearing. (See Marilyn H., supra, 5
3 In light of our conclusion, we need not, and do not, address the mother's claim the court erred in finding she had failed to show that reinstatement of reunification services would be in A.R.'s best interest. 23
Cal.4th at p. 309; Edward H., supra, 43 Cal.App.4th at p. 594.) The father filed his
petition on February 25, 2015, almost six months after the court terminated his
reunification services on September 4, 2014, and only a few days before the contested
section 366.26 hearing was held on March 3, 2015.
We conclude the court did not abuse its discretion when it found the father had
failed to meet his burden of showing that there was a change of circumstances warranting
modification of the court's order terminating his reunification services, or that the
reinstatement of those services would be in A.R.'s best interest. The father's reunification
case plan required him to participate in a 52-week domestic violence program,
psychological evaluation if recommended by his therapist, individual counseling, parent
education, and an outpatient substance abuse program. The father acknowledges that at
the time of the contested six-month review hearing (early September) at which the court
terminated his reunification services, his social worker did not see any significant
behavioral changes, his drug treatment counselor reported he was not making progress,
and he was again living with the mother although his therapist advised that the father
needed to maintain healthy boundaries with her.
In an addendum report, the Agency reported the father had told the social worker
his drug tests were not randomly performed and the length of time between tests ranged
from one or two weeks to up to a month. The social worker opined there would be
sufficient time for any indication of drug use to exit the father's system, and thus she was
unable to assess whether he was benefitting from drug treatment. She also reported the
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father was still working on completing his domestic violence classes, so his attendance
only indicated he was still in the process of changing.
At the hearing on the parents' section 388 petitions, the Agency called the father as
a witness. The father testified he had seen his drug treatment counselor the day before
and the counselor had put him on a contract because he had missed two weeks at his
program. The father admitted he did not have any excuse for missing those sessions. On
cross-examination, the father testified he was drug testing once or twice each week and
the results had been negative, but he acknowledged the test were not random.
As already discussed, a petitioner seeking relief under section 388 must show
changed, not changing, circumstances. (Mickel O., supra, 197 Cal.App.4th at p. 615;
Casey D., supra, 70 Cal.App.4th at p. 47.) We conclude substantial evidence supports
the court's finding that the father had failed to meet his burden of showing a change of
circumstances warranting modification of the court's order terminating his reunification
services. We also conclude the court acted within its legal discretion in denying the
father's section 388 petition because the evidence shows the father's circumstances were
changing, but had not changed, and thus A.R.'s interest in permanency and stability
outweighed his interest in last-minute reinstatement of reunification services.
II. THE COURT PROPERLY TERMINATED THE FATHER'S PARENTAL RIGHTS
The father also contends the court erred in terminating his parental rights because
the evidence showed A.R. had a beneficial parent-child relationship with him that
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outweighed any need for adoption.4 He also asserts the court should have ordered a
permanent plan of legal guardianship because it "would provide the stability [A.R.]
needed, while at the same time maintain her relationship with [him]." We conclude the
court acted within its lawful discretion in terminating the father's parental rights.
A. Applicable Legal Principles
1. Beneficial parent-child relationship exception
When reunification services are terminated, the focus of a dependency proceeding
shifts from preserving the family to promoting the best interests of the child, including
the child's interest in a stable, permanent placement that allows the caregiver to make a
full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th
529, 534.) At the section 366.26 permanent plan selection and implementation hearing,
the juvenile court has three options: (1) Terminate parental rights and order adoption as
the permanent plan, (2) appoint a legal guardian for the dependent child, or (3) order the
child placed in long-term foster care. (In re Fernando M., p. 534.)
"Adoption . . . is the permanent plan preferred by the Legislature." (In re Autumn
H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Thus, "[i]f the child is adoptable, there
is a strong preference for adoption over alternative permanency plans." (In re Michael G.
(2012) 203 Cal.App.4th 580, 588 (Michael G.).) All that is required to show a dependent
child is adoptable is "clear and convincing evidence of the likelihood that adoption will
be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406; see
4 Neither parent has challenged the court's finding by clear and convincing evidence that A.R. was adoptable and would be adopted if parental rights were terminated. 26
§ 366.26, subd. (c)(1).) The issue of adoptability focuses on the child and "whether the
child's age, physical condition and emotional health make it difficult to find a person
willing to adopt that child." (Michael G., supra, at p. 589; In re Zeth S., at p. 406.)
At a section 366.26 hearing, once the juvenile court finds by clear and convincing
evidence that the child is likely to be adopted within a reasonable time, the court is
required to terminate parental rights and select adoption as the permanent plan "unless the
parent shows that termination of parental rights would be detrimental to the child under
one of the exceptions listed in section 366.26, subdivisions (c)(1)(A) and (B)." (Michael
G., supra, 203 Cal.App.4th at p. 589; In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
The beneficial parent-child relationship exception found in section
366.26(c)(1)(B)(i) provides an exception to the adoption preference if the juvenile court
finds a "compelling reason" for determining that termination of parental rights would be
"detrimental" to the child because "[t]he parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the relationship."
(§ 366.26(c)(1)(B)(i), italics added.)
This court has interpreted the statutory phrase "benefit from continuing the
relationship" (§ 366.26, subd. (c)(1)(B)(i)) to mean that the parent-child relationship
"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." (Autumn H., supra,
27 Cal.App.4th at p. 575.) We explained in Autumn H. that in determining whether the
child would benefit from continuing the parent-child relationship for purposes of the
beneficial parent-child relationship exception, the juvenile court "balances the strength
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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." (Ibid., italics added; accord,
In re Jason J. (2009) 175 Cal.App.4th 922, 936.)
To meet the burden of establishing the applicability of the beneficial parent-child
relationship exception, the parent must show more than frequent and loving contact, an
emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th
823, 827 (Derek W.).) "Interaction between natural parent and child will always confer
some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The
beneficial parent-child relationship exception "applies only where the court finds regular
visits and contact have continued or developed a significant, positive, emotional
attachment from child to parent." (Ibid.) Thus, "[t]he parent must show he or she
occupies a parental role in the child's life." (In re C.F. (2011) 193 Cal.App.4th 549, 555;
Derek W., at p. 827.)
Furthermore, "[a] biological parent who has failed to reunify with an adoptable
child may not derail an adoption merely by showing the child would derive some benefit
from continuing a relationship maintained during periods of visitation with the parent.
[Citation.] A child who has been adjudged a dependent of the juvenile court should not
be deprived of an adoptive parent when the natural parent has maintained a relationship
that may be beneficial to some degree, but that does not meet the child's need for a
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parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466, second italics added; accord, In
re Marcelo B. (2012) 209 Cal.App.4th 635, 643 (Marcelo B.).)
2. Standard of review
On review of the sufficiency of the evidence to support a juvenile court's order
terminating parental rights and freeing the parent's child for adoption, "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., supra, 27 Cal.App.4th at p. 576.) "We
must affirm the juvenile court's rejection of any exception to termination of parental
rights if the court's findings are supported by substantial evidence." (Michael G., supra,
203 Cal.App.4th at p. 589, citing Autumn H., supra, 27 Cal.App.4th at p. 576.)
"The appellate court does not reweigh the evidence, evaluate the credibility of
witnesses or indulge in inferences contrary to the findings of the trial court." (Michael
G., supra, 203 Cal.App.4th at p. 589.) "The substantial evidence standard of review is
generally considered the most difficult standard of review to meet, as it should be,
because it is not the function of the reviewing court to determine the facts." (Ibid.)
B. Analysis
As discussed, ante, a parent seeking to avoid the termination of parental rights and
overcome the statutory preference for adoption under the beneficial parent-child
relationship exception must show (1) he or she has maintained regular visitation with the
child, and (2) the child would benefit from continuing the relationship. (§ 366.26, subd.
(c)(1)(B)(i); Marcelo B., supra, 209 Cal.App.4th at p. 643.) The parent must show more
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than frequent and loving contact, an emotional bond with the child, or pleasant visits; the
parent must show he or she occupies a parental role in the child's life. (In re C.F., supra,
193 Cal.App.4th at p. 555; Derek W., 73 Cal.App.4th at p. 827.)
Here, County Counsel acknowledges the father met his burden of satisfying the
visitation prong of the beneficial parent-child relationship exception, but argues the court
properly found he failed to meet his burden of showing he occupied a parental role in the
A.R.'s life. We agree.
The record shows the father maintained regular visitation with A.R., he loves and
has an emotional bond with her, and his visits with her were pleasant. However,
substantial evidence supports the court's finding that the father did not occupy a parental
role in A.R.'s life. The court found, and the father does not dispute, that A.R. had been
living with her caregivers since January 10, 2014, and the father's visitation had remained
supervised and thus had never progressed to a period of unsupervised visitation "wherein
a parental bond or parental role with [her] could be determined." In the Agency's report
for the section 366.26 hearing, the social worker reported that although the father
engaged with A.R. during visitation, he was timid in setting boundaries with her and the
caregiver would step in to redirect A.R. for her safety. When visitation ended, A.R.
willingly went to the caregiver without crying or demonstrating she did not want to leave
the father. The social worker also reported that the father did not take his substance
abuse treatment seriously. The court agreed with the social worker's opinion that the
parents did not have a parental relationship with A.R., and adopted the Agency's
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recommendation that parental rights be terminated and A.R. referred to the Agency for
adoption. The court did not err.
DISPOSITION
The orders and judgments are affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
31
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Holding. The court did not abuse its discretion in denying the parents' petitions for modification under Welfare and Institutions Code section 388 or in terminating their parental rights, as the parents failed to demonstrate changed circumstances or that a beneficial parent-child relationship outweighed the need for adoption.
Issues
Did the juvenile court abuse its discretion by denying the parents' section 388 petitions for modification?
Did the juvenile court err in terminating parental rights by finding that no beneficial parent-child relationship existed to outweigh the need for adoption?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude the court acted within its lawful discretion in denying the parents' section 388 petitions and in terminating their parental rights.”
“Stating that "circumstances appear to be changing, but not changed," the court found the father had presented "no evidence . . . that the issues that brought [A.R.] before the court [were] ameliorated”