California Court of Appeal May 6, 2016 No. D068935Unpublished
Filed 5/6/16 In re C.P. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 C.P., a Person Coming Under the Juvenile Court Law. D068935 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3763) Plaintiff and Respondent,
v.
CHRISTINA P.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
I.
INTRODUCTION
Christina P. (Christina) appeals a judgment terminating her parental rights to her
minor daughter, C.P. Christina contends (1) that the juvenile court abused its discretion
in denying her Welfare and Institutions Code1 section 388 petition to modify the court's
previous order terminating reunification services and (2) that the juvenile court erred by
(AA) meetings, random drug testing, a weekly domestic violence support group,
individual therapy, and parenting education. Christina was warned that because C.P. was
under three years old, she could be limited to six months of services.
With respect to the six-month review hearing, the Agency recommended
continuing Christina's services to the 12-month date. At that point in time, Christina had
3 C.P. was initially placed in the home of a paternal aunt and uncle, but was moved to the home of her paternal grandmother in April 2014, where she has remained throughout this case. 5
completed a substance abuse treatment program and reported that she was working on
step 4 of a 12-step program. However, during September 2014, the social worker made
an unannounced visit to Christina's home and observed an alcohol container in the
recycling bin outside the home. Christina claimed that the bottle was not hers and said
that her neighbors often used her bins. She submitted to a drug test the following day,
which came back negative. Because Christina's attendance at AA meetings had
decreased between July 2014 and October 2014, the social worker encouraged her to
increase her attendance to at least one meeting per week.
Christina was also participating in domestic violence treatment, parenting
education, and individual therapy. During this period of time, Christina's visitation with
C.P. had progressed to eight hours of unsupervised visits per week.
Christina had indicated to the social worker that she had no desire to resume a
relationship with Father. The social worker was concerned, however, that Christina was
not being completely forthright. In July and August 2014, C.P.'s paternal grandmother
had told the social worker that she suspected that Christina and Father had been having
contact, based on conversations she had had with both parties.
At the November 2014 six-month review hearing, Christina requested that the
matter be set for trial, and the court set a contested hearing for December 16, 2014.
In a report submitted prior to the contested six-month review hearing, the social
worker noted that new concerns had arisen, causing the Agency to recommend that
Christina's visits with C.P. be supervised. The social worker reported that on November
6, 2014, the paternal grandmother had told the social worker that at one point in the
6
weeks prior, she had arrived at Christina's home approximately 30 minutes early.
Christina was outside, while C.P. was inside, strapped in a car seat and watching
television, and had a very wet diaper. On November 7, the paternal grandmother left a
message for the social worker stating that Father had called the paternal grandmother
from Christina's home. He said that Christina had invited him over and they were in a
fight. The paternal grandmother could hear Christina shouting obscenities in the
background. The paternal grandmother believed, based on the way that Christina was
speaking, that she had been drinking.
On November 10, the social worker received a " 'calls for service' " log for
Christina's address from the San Diego County Sheriff's Department. The log indicated
that on June 6, 2014, an anonymous call for service had been made alleging that there
were four people at Christina's home, and that two of the people had restraining orders
against each other. When an officer arrived at the home, no one answered the door.
Another call for service at Christina's address came in on October 18, 2014. On that day,
Christina had called and stated that Father had come to her home, and that he had just
left. Christina had not reported either incident to the social worker.
On November 12, the paternal grandmother reported that Christina had told her
that Father had pulled a knife on her on November 7. The paternal grandmother also
reported that Father had told her that he had been seeing C.P. When asked by the social
worker about whether Father had been at her home, Christina maintained that he had not
been to her home, and denied having told the paternal grandmother that Father had pulled
a knife on her.
7
The social worker stated in the addendum report for the contested hearing that "[i]t
is concerning to the Agency that [Christina] is able to identify red flags for domestic
violence but seems to be pursuing contact with the father." She also "question[ed]
[Christina's] understanding of the protective issues and ability to place the needs and
safety of her daughter ahead of her own needs." Because of these concerns, the Agency
filed a section 388 petition requesting a change in Christina's visitation from
unsupervised to supervised.
The juvenile court granted the Agency's request to change Christina's visitation to
supervised. In addition, consistent with the Agency's recommendations, the juvenile
court terminated reunification services for Father, but continued services for Christina for
another six months after finding that she had made substantive progress with the
provisions of her case plan.
At the conclusion of the contested hearing on December 16, the social worker
provided Christina with a copy of her case plan for the 6- to 12-month review period, as
well as a list of the things the social worker wanted to see from Christina in order for her
to transition back to unsupervised visits with C.P. After the hearing, Christina admitted
to the social worker that Father had come to her home on October 18, 2014. Although
she had been told to go to the Sheriff's Department with the photograph she had taken of
him on her property, Christina had not done so. She also claimed that she did not know
that she was supposed to report the restraining order violation to the social worker.
Christina further admitted that she had allowed Father into her home on November 7,
2014. Christina said that she had been afraid to tell the social worker. Christina
8
apologized for not being truthful with the social worker about the incident. Christina and
the social worker also discussed Christina's "safety plan," which Christina prepared in
October 2014. Christina had not yet followed through with some of the items in the plan.
On December 17, 2014, Christina left the social worker a voice mail stating that
Father had been at her home the night before, and that she had called the police. The
social worker confirmed with police what Christina had told her.
Christina and the social worker were supposed to meet in January 2015 to go over
Christina's case plan. However, Christina did not respond to the social worker's attempts
to contact her, and they did not meet in January 2015.
In early January 2015, Christina admitted to her therapist that she had allowed
Father into her home on November 7, 2014. She also said that Father had assaulted her
that day. She had not called 911 because she thought it would reflect poorly on her case
with the Agency. Christina told the therapist that she was staying with a friend because
she did not feel safe living in the same mobile home park where Father had been staying
with his grandmother. Christina said that she was considering moving from her home
and renting it out.
Because Christina had never mentioned the assault to the social worker, the social
worker was concerned that Christina was withholding important information from her.
When the social worker asked Christina about the November 7, 2014 incident while they
9
were at court on March 5, 2015, Christina avoided the question. She eventually admitted
that Father had assaulted her in November, but declined to provide additional details.4
The social worker learned of another incident of domestic violence between
Christina and Father that occurred on January 30, 2015. Christina did not immediately
report the incident to the social worker, but mentioned it only in response to the social
worker's inquiry regarding why she was staying with her sponsor, more than two weeks
after the incident.5 Christina indicated that on January 30, she had been outside on her
porch when Father approached her and said that they needed to talk. Christina went into
the house to call the police, and Father followed her inside and took the phone from her.
Christina believed that Father had been drinking. According to Christina, Father
proceeded to choke her six times over a two-hour period. Father threatened to kill her
and her family if she " 'snitched.' " Christina escaped when Father let her go to the
kitchen to get a drink. She ran out the door to a neighbor's house.
Despite this incident, Christina apparently returned to her home unaccompanied
later that day to check her mail and check on her home. Because she believed that Father
had taken a spare set of keys, Christina returned another day with her sponsor and her
sponsor's husband to change the locks.
4 Christina eventually admitted that she had sexual intercourse with Father on November 7, 2014. 5 Christina had called and told the social worker that she was staying with her sponsor on February 2, but had not indicated her reason for doing so. 10
In April 2015, the social worker received an update from Christina's therapist. At
that point, Christina's target date for completion of her domestic violence goal had been
pushed out to June 2015.
The social worker believed that Christina had made some progress in addressing
the protective issues. However, she repeatedly failed to be forthcoming with the social
worker and made poor choices that could place C.P. at risk of harm. The social worker
found Christina's failure to share relevant information "concerning," because Christina
"has not demonstrated her ability to keep the Agency informed of situations and then is
evasive when asked about situations, which would place [C.P.] at risk for harm if she
were placed in [Christina's] care."
At the 12-month review hearing on April 14, 2015, the court determined that
returning C.P. to her parents' care would create a substantial risk of detriment to her
physical and emotional well-being, and that there was not a substantial probability of
returning C.P. to parental custody by the 18-month date. The court determined that the
services that had been provided were reasonable, and terminated Christina's reunification
services.
On August 26, 2015, approximately four months after the court terminated her
services, Christina filed a petition to modify, pursuant to section 388, seeking additional
reunification services and that C.P. be placed in her home.
As changed circumstances, the petition cited Christina's completion of outpatient
substance abuse treatment, her attendance at AA meetings, participation in group and
individual domestic violence treatment, completion of parenting classes, continued
11
treatment by a therapist, the fact that Christina had maintained sobriety for 18 months,
and the fact that she had secured safe and confidential housing.
Between June and July 2015, the social worker observed several supervised visits
between Christina and C.P. During this time period, Christina had weekly supervised
visits with C.P. at the Family Visitation Center. However, she did not call C.P.'s
caregivers between visits to ask about C.P. During one visit, the social worker observed
C.P. greet Christina with a smile and refer to her as "Mama." Christina brought snacks
and toys for C.P., and C.P. frowned as Christina placed her in her car seat at the end of
the visit. During another visit, the social worker observed C.P. scream and rush toward
Christina, and she put her arms out for Christina to carry her. C.P. played with toys, and
did not appear to be distressed at the conclusion of the visit. During a third visit, C.P.
repeatedly said, "Nana" and appeared as if she was about to cry. When Christina arrived,
C.P. initially walked away from her to continue playing, but Christina managed to get
C.P. to play with her. C.P. smiled and kissed Christina goodbye as Christina placed her
in her car seat.
The social worker opined in late July 2015 that Christina and C.P. did not share a
parent-child relationship. Christina did not call between visits to inquire about how C.P.
was doing and she did not provide for C.P.'s daily care or meet her needs. Further, C.P.
had been removed from Christina's care when she was less than two months old. The
social worker recommended adoption for C.P., and reaffirmed this recommendation in
September, prior to the contested section 366.26 hearing.
12
The juvenile court considered Christina's section 388 petition at the section 366.26
hearing on September 16, 2015. Christina was present and represented by counsel. The
court received in evidence the Agency's reports, and heard testimony from Christina and
Christina's therapist, Rhonda Smallwood. Smallwood had first begun private counseling
with Christina in September 2014. At the time Smallwood testified, Christina's
counseling was voluntary, not court-ordered.
Smallwood testified that she was aware of the domestic violence altercation
between Christina and Father in early November 2014 because Christina had told her
about it. She was also aware of a domestic violence incident on January 30, 2015. After
that incident, Christina moved out of her home, placed the home for sale, and moved to a
new home, keeping her address confidential. According to Smallwood, Christina's
actions demonstrated an ability to keep herself safe. Smallwood also indicated that
Christina was in a new relationship that was different from her relationship with Father.
She appeared to be making progress and had broken her pattern of becoming involved in
violent relationships.
Christina testified that she visited C.P. once a week. During the visits, she played
learning games and engaged in other activities with C.P. Christina indicated that she had
a total of six children, three of whom were still minors. She had unsupervised visitation
with her then 5-year-old daughter and then 14-year-old son. Christina told the court that
she had completed a 24-week group domestic violence program, as well as substance
abuse treatment. She continued to attend AA meetings, worked with a sponsor, and
regularly attended individual counseling.
13
The court determined that Christina had shown changed circumstances, but that
she had failed to sufficiently demonstrate that granting the petition would be in C.P.'s
best interests.
The court proceeded to the contested section 366.26 hearing. Christina objected to
the termination of her parental rights, and contended that the beneficial relationship
exception applied. The court followed the Agency's recommendations and concluded
that C.P. was adoptable.6 The court determined that the beneficial relationship exception
did not apply and terminated Christina's parental rights.
Christina filed a timely notice of appeal.
III.
DISCUSSION
A. The juvenile court did not abuse its discretion in denying Christina's section 388 petition
In her section 388 petition, Christina requested that the court order that C.P. be
placed in her care and that she be provided additional reunification services. As changed
circumstances, the petition alleged that Christina had made progress in therapy, had
achieved 18 months of sobriety, had procured stable and confidential housing, and
"demonstrated success even without Agency supervision." Christina supported these
allegations with a letter from her therapist discussing her progress. The petition further
6 C.P.'s attorney joined with the Agency in requesting the termination of parental rights. 14
alleged that the proposed modification would be in C.P.'s best interests because there
continued to be a strong bond between C.P. and Christina.
Christina asserts that the trial court abused its discretion in denying her section
388 petition requesting that the court modify its April 15, 2015 order in which the court
terminated her reunification services. She contends that while the trial court correctly
determined that she had demonstrated a sufficient change in circumstances, the trial court
acted arbitrarily in failing to conclude that granting her petition would promote C.P.'s
best interests.
1. Legal standards
Section 388 allows the juvenile court to modify an order if a party establishes, by a
preponderance of the evidence, that changed circumstances exist and that the proposed
change would promote the child's best interests. (In re Zachary G. (1999) 77
Cal.App.4th 799, 806.) To obtain a hearing on a section 388 petition, the parent must
make a prima facie showing as to both of these elements. (Ibid.; In re Justice P. (2004)
123 Cal.App.4th 181, 188.) The petition should be liberally construed in favor of
granting a hearing, but "[t]he prima facie requirement is not met unless the facts alleged,
if supported by evidence given credit at the hearing, would sustain a favorable decision
on the petition." (In re Zachary G., supra, at p. 806.) We review the denial of a section
388 petition for abuse of discretion. (Id. at p. 808; In re Jeremy W. (1992) 3 Cal.App.4th
1407, 1413; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.)
15
In determining whether the petition makes the necessary showing, the court may
consider the entire factual and procedural history of the case. (In re Justice P., supra,
123 Cal.App.4th at pp. 188-189.)
2. Analysis
The juvenile court found that Christina had met her burden to demonstrate the
existence of changed circumstances. However, the court determined that Christina had
not met her burden to demonstrate that the change she proposed would promote C.P.'s
best interests. We see no abuse of discretion in the juvenile court's finding that granting
the section 388 petition would not be in C.P.'s best interests.
Beyond asserting that placing C.P. with Christina would be in C.P.'s best interests
because there exists a "bond" between C.P. and Christina and that C.P. has an "interest in
preserving her existing familial unity," Christina offered essentially no evidence that her
requested change would be in C.P.'s best interests. Despite Christina's assertion about the
existence of a "bond" between her and C.P., the juvenile court was particularly concerned
with the fact that C.P. had spent the vast majority of her life in the care and custody of
someone other than Christina. Specifically, C.P. had been taken out of Christina's care
when she was just 1.5 months old, and thus, "this child has spent 95 percent of her life in
the custody of someone other than the mother." The court noted that Christina's contact
with C.P. had been limited to "a couple of hours a week for visitation." Given this
history, the court was concerned with the magnitude of the change to C.P.'s life that
would occur if C.P. were to suddenly be placed in Christina's custody. The trial court
16
agreed with Christina's honest answer that C.P. would likely be "confused" if she were to
be placed with her mother "in a strange home."
The trial court was properly concerned with how such an enormous change might
impact C.P., who had been in her mother's custody only as a newborn, for less than two
months. Christina had supervised visitation during much of C.P.'s life, and saw her only
weekly for approximately two hours of visitation during the months leading up to the
section 366.26 hearing. Further, Christina did not call to inquire about C.P.'s well-being
between visits or try to engage with C.P. Given this history, the court did not abuse its
discretion in denying Christina's section 388 petition on the ground that it would not be in
C.P.'s best interests to place her in Christina's custody.7
7 Christina asserts that we should apply the factors in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.) to our best interests analysis. In Kimberly F., the reviewing court stated that the juvenile court should consider the following factors in ruling on a section 388 petition: the seriousness of the problem that led to the dependency, the reason that the problem continued, the ease with which a change of circumstance could be achieved, the nature of any change, the reason a change did not occur sooner, the strength of the parent-child and child-caretaker bonds and the length of time the child has been in the system. (Kimberly F., at pp. 530-532.) A consideration of these factors would not assist Christina. The domestic violence in Christina's relationship with men had resulted in her loss of custody of two older nondependent children and was a serious problem. Christina's contact with the Agency had occurred over a ten-year period. In addition, Christina's substance abuse problems were significant. Further, by the time of the section 388 hearing, C.P. had been in the dependency system for one year and nine months, the vast majority of her life. Christina had received reunification services, and then, after the court terminated the court-mandated reunification services, sought out counseling, participated in group domestic violence treatment, and completed outpatient substance abuse treatment. Christina progressed in her treatment plans. However, during the pendency of the dependency proceeding, Christina had been involved in additional violent episodes with C.P.'s father, and had had other contact with the father as well, which she concealed from the Agency. Further, although C.P. enjoyed her visits with Christina, she was thriving in the care of her paternal grandmother. Thus, 17
B. The juvenile court did not err in declining to apply the beneficial relationship exception
Christina contends that the court should not have terminated her parental rights
because of the beneficial nature of her parental relationship with C.P. (§ 366.26, subd.
(c)(1)(A).) We are not persuaded.
1. Legal standards
If a dependent child is adoptable, the court must terminate parental rights at the
section 366.26 hearing unless the parent proves the existence of a statutory exception to
adoption. (Id., subd. (c)(1).) An exception exists if "[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship." (Id., subd. (c)(1)(B)(i).) "A parent asserting the parental benefit
exception has the burden of establishing that exception by a preponderance of the
evidence." (In re J.C. (2014) 226 Cal.App.4th 503, 529.)
With respect to the visitation prong, "[r]egular visitation exists where the parents
visit consistently and to the extent permitted by court orders." (In re I.R. (2014) 226
Cal.App.4th 201, 212.) The lack of regular visitation "fatally undermine[s] any attempt
to find the beneficial parental relationship exception." (Ibid.)
This court has interpreted "the 'benefit from continuing the [parent/child]
relationship' exception to mean the 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. In other words, the court balances the strength and quality of
even under the factors set forth in Kimberly F., we would conclude that the trial court did not abuse its discretion in denying Christina's section 388 petition. 18
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. (1994) 27 Cal.App.4th 567,
575, italics added.)
"We apply the substantial evidence standard of review to the factual issue of the
existence of a beneficial parental relationship, and the abuse of discretion standard to the
determination of whether there is a compelling reason for finding that termination would
be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)
2. Analysis
The trial court found that Christina met the first prong of the beneficial
relationship exception, acknowledging that Christina consistently visited with C.P., and
that the "visits went really, really well." The trial court concluded, however, that
Christina failed to establish the second prong of the exception—i.e., that she had a
parent-child relationship with C.P. that was so beneficial that terminating her parental
rights would be detrimental to C.P. (§ 366.26, subd. (c)(1)(B)(i).)
Specifically, the trial court determined that Christina did not occupy a "parental
role" in C.P.'s life. Rather, C.P.'s grandparents occupied that role, and she had spent the
great majority of her life in their custody and care. C.P. had frequent and loving contact
with Christina, but this was not enough to make that relationship so significant as to
outweigh the benefits that C.P. would gain from being adopted.
19
The record supports the trial court's conclusions. It is clear that Christina
maintained regular visitation and contact. However, after Christina's visitation was
changed to supervised visitation in December 2014, Christina's visitation with C.P.
consisted of approximately two hours of supervised visitation per week. Further, the
record discloses that between visits, Christina did not inquire of C.P.'s caregivers about
her well-being. Further, although C.P. appeared to enjoy her visits with Christina, the
social worker was of the opinion that the relationship between Christina and C.P. was not
a parent-child relationship. All of this supports the trial court's conclusion that despite
the consistent visitation between Christina and C.P., Christina simply did not occupy a
parental role in C.P.'s life.
There is substantial evidence to support the conclusions that C.P. did not have "a
substantial, positive emotional attachment" to Christina of the kind that would outweigh
the well-being that C.P. would gain in a permanent, adoptive home, and that she would
not be greatly harmed by the severance of the relationship with Mother. (In re Autumn
H., supra, 27 Cal.App.4th at p. 575.) Therefore, substantial evidence supports the court's
finding that Christina did not satisfy the second prong of the beneficial parent-child
relationship exception. For these reasons, the juvenile court did not err in concluding that
the parental benefit exception to adoption was not applicable. (§ 366.26, subd.
(c)(1)(B)(i).)
20
IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
21
AI Brief
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Holding. The juvenile court did not abuse its discretion in denying the mother's section 388 petition for modification, nor did it err in finding the beneficial relationship exception inapplicable to the termination of parental rights. The court properly determined that the mother failed to demonstrate that the proposed modification was in the child's best interests given the child's limited time in the mother's care and the mother's history of domestic violence.
Issues
Did the juvenile court abuse its discretion in denying the mother's section 388 petition to modify the order terminating reunification services?
Did the juvenile court err by failing to apply the beneficial relationship exception to the termination of parental rights under section 366.26, subdivision (c)(1)(B)(i)?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The juvenile court found that Christina had met her burden to demonstrate the existence of changed circumstances. However, the court determined that Christina had not met her burden to demonstrate that the change she proposed would promote C.P.'s best interests.”
“The court determined that the beneficial relationship exception did not apply and terminated Christina's parental rights.”