IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 20, 2011
IN RE F.H., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
A.A. ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. No. JD230082)
The opinion of the court was delivered by: Hull , J.
In re F.H.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A.A., the mother, and C.H., the father of the minor F.H. appeal from the juvenile court's orders terminating parental rights and denying mother's petition for modification. (Welf. & Inst. Code, §§ 395, 366.26, 388; unspecified section references that follow are to this code.) Mother contends the denial of her section 388 petition was an abuse of discretion, and the juvenile court violated her due process rights by failing to allow her to present a witness at the section 388 hearing. Father contends the juvenile court should have applied the beneficial parent/child relationship exception to adoption. Both parents join the other's brief. We affirm the judgment.
FACTS AND PROCEEDINGS
When F.H. was born in August 2009, mother was on hospital alert due to suicide attempts, substance abuse, a history of domestic violence with father, and the prior death of one of her children. Three of her children were adopted with the fourth in guardianship. Later that month, the minor was placed in protective custody and the Sacramento County Department of Health and Human Services (DHHS) filed a dependency petition (§ 300) alleging mother's extensive child welfare history and a history of domestic violence. The minor was detained and returned to her parents two days later.
Mother has an extensive child welfare history. The minor's brother T.A. (born March 1995) was declared a dependent of the juvenile court in May 1998 when the child's one-month-old sibling A.R. died from asphyxiation after being discovered wedged between a wall and a mattress. Another dependency petition was sustained in December 1998, based on mother's substance abuse and domestic violence between mother and her boyfriend, and mother's physical abuse of T.A. and A.R. T.A. remained in foster care until his return to mother in June 2005.
In December 1998, the minor's half sibling J.V. (born March 1997) was adjudged a dependent child based on mother's history of domestic violence, physical abuse of A.R. and T.A., and A.R.'s death. Reunification services were terminated in September 1999, but the child was returned to mother in May 2000. A subsequent petition was sustained after mother failed to meet the medical needs of half sibling D.D. (born October 1999). Reunification services were not provided, pursuant to section 361.5, subdivisions (b)(3)-(6) and (b)(10).
Dependency petitions were sustained as to D.D. in November 1999 and January 2001 after D.D. was hospitalized in August 2000 due to severe dehydration and hypoglycemia. This life threatening condition was caused by mother's failure to feed D.D. for 24 to 48 hours. Reunification services were not provided, and mother's parental rights were terminated.
A dependency petition for half siblings Z.A. (born April 2004) and T.A. was sustained in January 2006 based on physical abuse and domestic violence. Reunification services were not offered and parental rights were subsequently terminated as to Z.A.
In an August 2009 interview, mother denied the physical abuse and domestic violence allegations, but admitted her substance abuse and child welfare history. Mother had used crack cocaine since she was 14, used drugs heavily after the death of A.R., and used marijuana before learning she was pregnant with the minor. Mother did not use drugs when pregnant, except when pregnant with her second son. Mother had been diagnosed with bipolar disorder and was placed on a section 5150 hold while Z.A. was in her care.
Father denied the physical abuse and domestic violence allegations in August 2009. He denied knowledge of the elements of mother's child welfare history which took place before they met. Father told the social worker he was considering moving out of the residence they shared to get custody of the minor.
Mother enrolled in the Birth and Beyond program in January 2009. The program's caseworker stated that mother was an "ideal client" who asked a lot of questions and did "above and beyond" what she was asked to do. The caseworker expressed concern over how mother treated the minor like she was a "toy doll." Mother was good with the baby at this age, because she could dress her up in "cute clothes" and comb her hair; the caseworker was concerned what would happen when the minor grew up and required more parental guidance.
The paternal grandmother expressed concerns about mother's mental health and that she failed to take her medications for bipolar disorder. She also observed the mother treated the minor like a "doll."
The minor was born three weeks premature, weighing 6 pounds, 4 ounces. She weighed 6 pounds, 2 ounces 13 days later, and was at her original birth weight nine days later. The minor was still under her expected weight when she was five weeks old. In light of mother's history of failing to feed one of her children, DHHS expressed "immense" concerns regarding the minor remaining in mother's care.
The minor was detained and placed with the paternal grandparents in September 2009. A doctor examined her almost a month after the placement, and concluded that the minor's weight "flattened out" in mother's care but "started to go way up" when she was placed with the paternal grandparents.
An October 2009 report related that mother did not exhibit symptoms after being taken off her psychotropic medicine. Seeing no medical reason to continue, mother's doctor discontinued the medication.
In November 2009, DHHS filed an amended petition (§ 387) reflecting the minor's failure to thrive under mother's care. The juvenile court dismissed the original petition and sustained the amended petition later that month. Reunification services were ordered for father, but denied to mother pursuant to section 361.5, subdivisions (b)(4),(10), and (11).
Mother filed a petition for modification (§ 388) in January 2010 seeking placement of the minor or reunification services. She alleged as changed circumstances: almost a year of sobriety, excellent participation in outpatient substance abuse services, her doctor's recommendation that she did not need medication for mental health problems, and having completed domestic violence and parenting classes. The juvenile court denied the petition in March 2010. Mother appealed, and we dismissed the appeal per In re Phoenix H. (2009) 47 Cal.4th 835. (In re F.H. (Mar. 21, 2011, C064668) [nonpub. opn.].)
The minor continued to reside with the paternal grandparents in Fresno as of the April 2010 permanency review report. Father once arrived at the paternal grandparents' home apparently intoxicated. He initially acted rudely and disrespectfully, and continued to raise his voice when the paternal grandmother would not let him hold the minor, refusing to leave until police arrived to escort him off the property. Law enforcement found father in possession of a small amount of marijuana, and arrested him.
The social worker reported that father had frequent, generally appropriate, and loving visits with the minor. One issue was that father would leave the grandparents' home to "hang out" with friends and family for much of the time, leaving the minor behind. Mother had monthly supervised visits with the minor. The paternal grandmother reported that the last visit was very appropriate and positive, but mother was easily frustrated in previous visits. The minor made excellent progress in the paternal grandparents' care.
A May 2010 addendum report stated that father had not participated in the counseling part of his services. DHHS recommended terminating father's services.
The juvenile court terminated father's services in May 2010.
The September 2010 selection and implementation report noted the paternal grandparents were interested in adopting the minor. The minor had a loving relationship with the paternal grandparents, and wanted for nothing in their care. Father would visit the minor for up to a week at a time, allowing him to bond with the minor.
The report for the section 366.26 hearing stated the parents continued to visit the minor once a month. Father would stay at the paternal grandparents' home and visit for multiple days. The paternal grandparents started an adoption home study, and were committed to allowing the parents to continue visiting after adoption.
Mother filed a second petition for modification in December 2010. As changed circumstances, she alleged participation in Wellspring Women's Center, enrollment in dental assistant's classes, and having successfully petitioned the juvenile court for two weeks visitation with her son J.V. every summer. Mother asked the juvenile court to vacate the section 366.26 hearing and either place the minor with her or order reunification services.
At the February 2011 combined sections 388 and 366.26 hearing, Cheryl Bouressa testified that she was assigned the minor's case for 30 days to six weeks--from June or July 2010 until the paternal grandparents decided to adopt the child. She also had J.V.'s case from March 2010 until his return to mother's custody in December 2010.
Bouressa talked to mother about her child welfare history, and it appeared she understood and took responsibility for the reasons for their removal. She found mother to be "conscientious and tenacious," and willing to do whatever she needs for her children. Mother would benefit from services if the juvenile court ordered them for her, and her home was suitable for the minor.
Mother testified that the minor was removed from her care due to mother's child welfare history and the minor's failure to thrive in her care. She started visits with J.V. in December 2010, he was subsequently returned home to her, and he remained with her ever since. J.V. had behavioral issues which she was working on without resorting to physical discipline.
Mother put her dental classes on hold because she was busy caring for J.V., although she was taking other college classes. Her therapy covered daily problems in the past and present, as well as parenting her children and responding to stress. She ended her relationship with father in December 2009, and had no relationships since then. She would participate in services, if required, and believed it was in the minor's best interests to be raised by a parent.
Genelle Smith, a social worker coordinator at Wellspring Women's Center, was mother's counselor since May 2010, and previously supervised her therapist. Mother intended to continue counseling, which covered many subjects, including the minor's removal. Mother believed the minor was removed from her custody because of her child welfare history and the child's failure to thrive in her care. Mother had great guilt over her past, recognized she cannot change what happened, and was now willing to do her best.
Smith believed mother acted appropriately since J.V. was returned to her. Smith worked with mother for all her children, and believed she had gained a lot of insight.
The juvenile court denied mother's petition, finding changed circumstances, but returning the minor to her care was not in the child's best interests.
At the section 366.26 hearing, the paternal grandmother testified that father last visited for about two weeks for Christmas, and remained in her home for two nights. Father was attentive to the minor, and visited her frequently. He took care of the minor when he visited, but the paternal grandmother was the primary caretaker.
Father testified that he visited the minor almost every weekend until he returned to school, and was the child's primary caretaker when he was there. He and the minor, who called him "dada," have a bond.
The juvenile court found the minor was generally adoptable, denied the parents' request to apply the beneficial parent/child relationship to adoption, and terminated parental rights with a permanent plan of adoption.
Dismissal of Mother's Appeal
DHHS contends mother's appeal should be dismissed.
DHHS first asserts mother's notice of appeal was improper, claiming the notice referred to the termination of parental rights but not to the denial of her section 388 petition. In support of this contention, DHHS mistakenly cites to, and quotes from, father's notice of appeal. Mother's notice of appeal expressly indicates she is appealing from both the termination of parental rights and the denial of her petition for modification.
DHHS next argues mother's appeal should be dismissed because the denial of her petition for modification was mooted by her failure to challenge the juvenile court's order terminating her parental rights.
"It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events." (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) If subsequent events make it impossible for this court to grant appellant any effective relief, dismissal is appropriate. (Ibid.; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316-1317.) Mootness is decided on a case-by-case basis. (In re Kristin B. (1986) 187 Cal.App.3d 596, 605.)
In Jessica K., the parent appealed from the denial of a section 388 petition but failed to appeal from a subsequent order terminating parental rights. (In re Jessica K., supra, 79 Cal.App.4th at p. 1316.) The parent's failure to appeal the termination order deprived the appellate court of jurisdiction to modify the order terminating parental rights, preventing the parent from obtaining effective relief, and thus rendering her appeal moot. (Id. at pp. 1316-1317.)
DHHS argues mother does not contest the termination of her parental rights in her opening brief, effectively abandoning the issue. (See Robinson v. Harrington (1961) 195 Cal.App.2d 126, 127-128 [partial abandonment implicit where notice of appeal specifies an order that is not challenged in appellant's opening brief].) Although mother does not challenge the termination of parental rights as to her, she nonetheless appealed from that order, giving us jurisdiction to modify the order if we determine her modification should have been granted. Since mother can obtain effective relief, Jessica K. is inapposite and mother's appeal is not moot.
Mother's Section 388 Petition
Mother contends it was an abuse of discretion for the juvenile court to deny her section 388 petition.
Section 388 permits a modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the minor's best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The petitioning party has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.)
One of the functions of section 388 is to provide "an 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (In re Kimberly F., supra, 56 Cal.App.4th at p. 528, citing In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status." (Marilyn H., at p. 309.)
The child's best interests are of paramount consideration when a modification petition is brought after the termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child, the juvenile court looks not to the parent's interests in reunification but to the needs of the child for permanence and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) "[W]hen a child has been placed in foster care because of parental neglect or incapacity, after an extended period of foster care, it is within the court's discretion to decide that a child's interest in stability has come to outweigh the natural parent's interest in the care, custody and companionship of the child. [Citation.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 419.)
A modification petition "is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415.) "It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion . . . ." (In re Kimberly F., supra, 56 Cal.App.4th at p. 522.)
Mother presented a profound danger to the minor when the dependency began in August 2009. One of mother's children died in her care and another child almost died due to her neglect. Her extensive child welfare history includes sustained allegations of physical abuse, domestic violence, and substance abuse. In light of mother's child welfare history, the infant minor's failure to thrive in her care is particularly troubling.
To her credit, mother has made commendable efforts to change even though she was not offered reunification services. Assuming she presented changed rather than changing circumstances, we conclude she has not carried her burden of establishing that either returning the minor to her care or providing her with reunification services is in the minor's best interest.
Among the factors relevant to determining the child's best interests are: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
The minor was removed from mother's care a little more than a month after her birth, and has lived with the paternal grandparents since then. She is thriving in the paternal grandparents' care, has strong attachments to them, and is on the path to the Legislature's preferred policy of adoption. Mother has not successfully cared for any of her children for a significant length of time. Although she managed to regain custody of her son J.V., mother admitted he was displaying behavioral problems which she was trying to address.
Under such circumstances, it was not an abuse of discretion for the juvenile court to conclude that placing the minor with mother was not in the child's best interests. The first factor in Kimberly F. weighs heavily against the mother. The dependency was initiated under circumstances presenting a profound danger to the minor. The second factor also weighs against mother. The minor was bonded to the grandparents and had little contact with mother other than monthly visits.
The third factor from Kimberly F. is closer. Mother's problems were profound--one infant died in her care, a second infant faced life threatening medical problems when he was not fed for 24 to 48 hours while in her care, and the minor failed to thrive in the short time she was in mother's care. While mother presented evidence of addressing her problems, and was caring for her teenage son, this does not mandate an inference that she could care for the minor. The minor was 17-months-old when the juvenile court denied mother's petition. The juvenile court could reasonably conclude that mother presented less danger to a teenager than an infant, and thus infer that her ability to care for her son did not establish that she could care for the minor. (See In re Stephanie M., supra, 7 Cal.4th at p. 319 [applying abuse of discretion standard, "'"[w]hen 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"'"].)
The minor was entitled to stability and permanence at this stage in the dependency proceedings. The juvenile court's unwillingness to sacrifice these paramount objectives for the mere possibility that mother might be able to provide the minor a stable, permanent home did not exceed the bounds of reason. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Due Process of Law
Mother contends the juvenile court violated her due process rights to present evidence by preventing her from calling both of the social workers she sought to present as witnesses at the section 388 hearing.
At the section 388 hearing, mother intended to call herself and three other witnesses--social worker Cheryl Bouressa, social worker Kristy Adams, and Genelle Smith, the social worker coordinator at the Wellspring Women's Center. According to mother's offer of proof, Smith would testify regarding mother's continued participation in counseling, which mother asserted was relevant to the question of changed circumstances. Bouressa was the social worker who wrote the initial section 366.26 report recommending adoption, and worked on the minor's case as well as J.V.'s. She would testify to mother's history, how she changed her life, how she is now very capable, asks the right questions, has good resources, and adequate housing. Adams, who was not at the hearing, authored the report for J.V. She would testify that mother is doing very well with J.V., she completed an "inordinate amount" of services, and she benefitted from them. Arguing Adams had a "wealth of relevant information," mother's counsel asked the juvenile court to hold the matter over until Adams could be present.
The juvenile court indicated mother would get one, but not both social workers. The court was not inclined to let Bouressa testify because she had been off the case for over six months, and Adams had relevant evidence. Mother asserted her due process right to present evidence and argued that Bouressa had relevant evidence, as she would state a different position than in her written report. Noting due process does not entitle her to call every witness, the juvenile court said it would not let mother call both Adams and Bouressa since their testimony would be cumulative, and Adams's testimony would be more relevant. The juvenile court ruled that mother could choose which social worker she wanted to call, and if she decided to call Bouressa, the hearing could go forward immediately. After conferring with mother, counsel elected to call Bouressa and proceed immediately.
Mother asserts the juvenile court violated her due process right to present evidence by preventing Adams from testifying. Arguing Adams's testimony was not cumulative and highly relevant, mother concludes the juvenile court committed reversible error.
We begin by noting the juvenile court did not prevent mother from calling Adams as a witness. The juvenile court ruled that mother could call either Adams or Bouressa, but not both. Mother's decision to choose Bouressa over Adams is not before us. Rather, the question here is whether the juvenile court violated mother's due process rights by requiring her to choose between the two witnesses.
"The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.]" (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) The determination of whether the juvenile court erroneously excluded evidence is guided by the parameters of the Evidence Code, which applies in dependency proceedings. (In re Manolito L. (2001) 90 Cal.App.4th 753, 760.)
Although mother has the right to present evidence on her behalf, the juvenile court is empowered to control its proceedings. (Welf. & Inst. Code, § 350, subd. (a)(1); In-grid E. v. Superior Court (1999) 75 Cal.App.4th 751, 758.) That control extends to excluding evidence which is of limited relevance and cumulative with other evidence. (Evid. Code, § 352.)
We do not need to determine whether the juvenile court erred in forcing mother to elect between the two social workers because the error, if any, is harmless.
The testimony of Bouressa and Adams presented similar evidence that addressed different perspectives. They were both social workers assigned to mother. While Adams had a more current relationship with mother and observed her caring for her recently returned son, she had not worked on the minor's case. Bouressa worked on the minor's dependency, but not recently, and was not involved in mother's reunification with her son.
Adams's testimony was primarily relevant to the issue of whether mother established changed circumstances. Being the last social worker to deal with mother gave Adams the best vantage point for establishing her changed circumstances. By seeing mother care for her son, Adams could relate how she put those changes in place.
As we have already discussed in part II of the Discussion, ante, mother's changes and the return of her son have at best limited bearing on the best interests issue. Where, as here, the mother has a history of placing infant children in danger through inadequate care, mother's ability to care for a teenager does little to establish she could care for the 17-month-old minor.
Error in juvenile dependency cases is examined under the People v. Watson (1956) 46 Cal.2d 818 standard for harmless error. (In re Celine R. (2003) 31 Cal.4th 45, 60.) While Adams's testimony was clearly relevant to the changed circumstances question, the juvenile court found for mother on this issue. Although the juvenile court ruled against mother on the best interests question, Adams testimony was no more than tangentially related to that issue, and the most important point, that mother regained custody of her son, was already before the juvenile court. Mother bore the burden of proof, and, as discussed in part II of the Discussion, ante, there was considerable evidence that the petition was not in the minor's best interests. Since it is not reasonably probable that allowing Adams to testify along with Bouressa would change the outcome, any error is harmless.
Father contends the juvenile court should have applied the beneficial parent/child relationship exception to adoption.
At a hearing under section 366.26, if the juvenile court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless "[t]he court finds a compelling reason for determining that termination would be detrimental" due to one of the statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).)
The parent has the burden of establishing an exception to termination of parental rights. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The juvenile court's ruling declining to find an exception to adoption must be affirmed if it is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "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. [Citations.]" (Autumn H., at p. 576.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to adoption when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
However, a parent may not claim this exception "simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) The benefit to the child must promote "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 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.)
Father relies on In re S.B. (2008) 164 Cal.App.4th 289, which held a parent is not required to show a primary attachment to the child or a parental relationship with the child; instead, it was necessary only to show that the child formed a strong emotional attachment to a parent, who filled the primary caregiver role for a period of the child's life, and that attachment was sustained through regular visitation and remained substantial and positive, even in the absence of day-to-day contact. (See id. at pp. 300-301.) Father asserts his case is like S.B. in that the minor developed a positive emotional attachment to him in spite of being detained since birth.
S.B. is distinguishable on several grounds. First, "[w]hen S.B. was removed from [her father's] care, [her father] immediately recognized that his drug use was untenable, started services, maintained his sobriety, sought medical and psychological services, and maintained consistent and regular visitation with S.B. He complied with 'every aspect' of his case plan." (In re S.B., supra, 164 Cal.App.4th at p. 298.) The same cannot be said of father's compliance with his case plan here. Moreover, father's ability to maintain consistent visitation alone is not sufficient evidence of a beneficial relationship outweighing the stability and permanency afforded by a prospective adoptive parent. (Cf. In re Angel B. (2002) 97 Cal.App.4th 454, 466-467.)
A history of regular contact is not sufficient evidence the minor would be "greatly harmed" by severing her relationship with appellant. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) On the record before it, the juvenile court was entitled to conclude that only adoption, as the preferred disposition, would promote the best interests of the minor. Accordingly, substantial evidence supports the juvenile court's rejection of the beneficial parent-child relationship exception.
The judgment is affirmed.
We concur: RAYE , P. J. DUARTE , J.
© 1992-2011 VersusLaw Inc.