Opinion
E053146 Super.Ct.No. RIJ105661
09-30-2011
In re N.P., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. K.P., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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OPINION
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant K.P. appeals an order terminating her parental rights to her son, N.P. (We will use single initials hereafter.) She contends that she was denied due process when the juvenile court failed to continue the combined hearing on her petition to modify the order terminating her reunification services and the hearing on termination of parental rights, and that the court failed to act in N.'s best interests when it denied her request to continue the combined hearing. She also contends that the juvenile court erred in denying her petition for modification and in finding that an exception to the preference for adoption did not apply.
We will affirm the order.
FACTUAL AND PROCEDURAL HISTORY
K., who was 31 years old at the time the original petition was filed in this matter, had been abusing controlled substances since she was 17. She had had prior referrals for child abuse and neglect of her two older children, and those children now live with K.'s mother under a guardianship. On October 11, 2009, residents of a mobilehome park in Loma Linda reported that K.'s two-year-old son, N., and his two-year-old half brother had been playing and wandering in the mobilehome park for about two hours, unattended. The residents had attempted to return the children to K.'s mobilehome, but no one answered the door. When a sheriff's deputy and a social worker arrived 45 minutes later, the two toddlers were still playing unattended outside. K. was not at home, and the two adults inside her mobilehome, Michelle Browning and her boyfriend, were asleep in the back bedroom with the door closed and the television on.
The other child is apparently the son of the man K. initially believed to be N.'s father, with a woman other than K. It was ultimately determined that another man is N.'s biological father. In any event, the other child is not the subject of these proceedings.
When K. was contacted by telephone, she said she had gone to Yucaipa overnight with her boyfriend and had left N. in Browning's care. Browning had been living with K. for about two weeks. K. admitted that she knew that the child lock on the front door was a poor one and that she knew the child could get out the front door. She also admitted that she knew Browning had a history of drug use, but said she had no knowledge about her recent drug use.
When the deputy entered the mobilehome, he found four glass pipes with methamphetamine residue inside and a baggie containing marijuana, all on top of a low dresser in the bedroom. K. initially denied any knowledge of those items, but later admitted that she had smoked both marijuana and methamphetamine the morning she left N. in Browning's care.
N. was detained and later placed in foster care with a maternal second cousin. A petition pursuant to Welfare and Institutions Code section 300 was filed in San Bernardino County. (All statutory citations refer to the Welfare and Institutions Code.) An amended petition was filed, and the court declared N. a dependent child. N. was continued in foster care in the home of K.'s second cousin and reunification services were ordered. The case was later transferred to Riverside County.
K.'s case plan required her to complete a substance abuse program. She attended a program briefly but then stopped going. She attended another briefly, but again stopped going. She complained that the counselors were "unprofessional." She refused to participate in random drug tests. She did not appear to be benefitting from counseling. And, although she was allowed weekly supervised visits with N., she saw N. only three times in five months. Meanwhile, N. was thriving in his foster home, and his foster parents wanted to adopt him if reunification with K. failed. She also had pending felony charges of grand theft and burglary.
At the end of the six-month reunification period, the court found that K. had not made progress toward alleviating the problems which had resulted in the dependency. The court terminated reunification services and set a hearing pursuant to section 366.26 on termination of parental rights.
K. apparently realized, belatedly, that her parental rights really were about to be terminated. She enrolled in and completed a residential drug treatment program and planned to follow it up with an intensive outpatient program. She completed a 10-week parenting program. She visited with N. monthly, as allowed by the court following termination of services, missing one visit because she lacked gas money.
After she completed the drug treatment programs, K. filed a petition pursuant to section 388 to modify the order terminating services. She requested an additional six months of services. The court found that she had made a prima facie showing that modification would be in N.'s best interest and set the petition for a hearing on the same date as the section 366.26 hearing. (We discuss this hearing in greater detail below.)
The court denied the section 388 petition and terminated K.'s parental rights. It referred N. for adoptive placement.
K. filed a timely notice of appeal.
LEGAL ANALYSIS
1.
THE JUVENILE COURT'S FAILURE TO CONTINUE THE COMBINED
SECTION 388/SECTION 366.26 HEARING DID NOT DEPRIVE K. OF DUE
PROCESS
The combined section 388 and section 366.26 hearing was calendared for February 24, 2011. In an addendum report filed on February 18, 2011, the supervising social worker recommended that the court continue the section 366.26 hearing for 45 days to allow time to investigate K.'s section 388 petition and because the alleged father's paternity test results were not yet available. At the hearing on February 24, however, county counsel reported that the paternity test results had been received and stated that the social worker no longer desired any additional time to investigate the section 388 petition. Accordingly, the social services department wished to proceed with the hearing.
K. now contends that she was denied due process because her attorney relied on the representation that the hearing would be continued and was not prepared to go forward on the section 388 petition or oppose the termination of K.'s parental rights.
A parent does of course have a due process right to notice of any hearing which might affect his or her interests in a dependency proceeding. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412.) Here, K. had notice of the hearing. The fact that the social worker had stated that she "recommended" a continuance did not operate to deny K. notice of the hearing.
Nor did the withdrawal of the request for a continuance deny K. the opportunity to present her case. She contends that her attorney was unprepared to proceed on the petition because of her reliance on the social worker's representation that she would seek a continuance. However, the record does not support that contention. When county counsel stated that the continuance was no longer necessary, K.'s attorney asked, "Well, your Honor, in that case[,] would the court like me to argue my [section 388 petition]?" The court asked if she was prepared to proceed. She replied that she felt it was a little disingenuous of the social services department to withdraw its request for a continuance at the last moment, and that she felt that the allegations of the section 388 petition merited investigation by the department. She said that she thought "we should have a continuance" in order to allow the social worker to investigate "and put it [the basis for her opposition to the section 388 petition] in writing." Taking that as a request for a continuance, the court denied it. It then asked K.'s attorney if she was prepared to proceed. In response, K.'s attorney began to argue the merits of the petition.
At no time did K.'s attorney state that she was unprepared to address the merits of the petition, nor did she say that she wished to call any witnesses who were not present in court as a result of her expectation that the hearing would be continued. She did say that "if this court had an opportunity to see N[.] here, the court could tell right away" that N. and K. had a strong bond which would justify not terminating parental rights and which would make reinstatement of reunification services in N.'s best interest. It was undisputed that N. had a bond with his mother, however, and counsel did not make an offer of proof as to how the child's presence would allow the court to determine that the bond was such that N.'s best interests dictated reinstatement of reunification services.
After presenting her argument, when the court asked if she wished to present any witnesses, counsel replied, "I argued my [section 388 petition]. And I will submit the matter to the court."
Moreover, even if K. had been denied due process because her attorney was not prepared to proceed, the error would be harmless. (In re Iris R. (2005) 131 Cal.App.4th 337, 343 [due process error subject to harmless error analysis].) A party bringing a petition for modification pursuant to section 388 has the burden of proving both that changed circumstances justify modifying a prior order and that modification of the order would be in the child's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) K. does not assert that she was denied the opportunity to meet her burden on the changed circumstances prong of the petition; she asserts only that she was denied the opportunity to present her case fully with respect to the best interest prong. As we discuss in section 3 below, the court properly found that K.'s circumstances had not changed but were at most changing. Because she did not persuade the court with respect to the changed circumstances prong, any interference with her opportunity to be heard with respect to the best interest prong did not affect the outcome of the hearing. A due process violation which does not affect the outcome of a proceeding "may be deemed harmless and reversal is not required." (In re James F. (2008) 42 Cal.4th 901, 918.)
Similarly, K.'s attorney did not ask to continue the section 366.26 hearing so that she could call witnesses who were not present or present any other evidence which she had not prepared based on her understanding that the hearing was to be continued. Her entire defense was based on the bond between K. and N., and she asked for guardianship rather than termination of parental rights and adoption. As noted above, counsel did not make an offer of proof as to how N.'s presence would allow the court to determine that the bond was of such importance that it outweighed N.'s interest in the stability and permanence he would gain by adoption. (See discussion in section 4, below.) Consequently, any due process violation was harmless. (In re James F., supra, 42 Cal.4th at p. 918.)
2.
K. HAS NOT MET HER BURDEN OF SHOWING THAT THE DENIAL OF THE
CONTINUANCE WAS AN ABUSE OF DISCRETION OR CONTRARY TO N.'S
BEST INTERESTS
K. next argues that the denial of the requested continuance of the combined section 388/section 366.26 hearing was an abuse of discretion. Her argument is based on the contention that the denial of the continuance denied her a hearing on the section 388 petition and on the parent-child bond. However, as we have discussed above, the court did not deny K. a hearing, nor was her attorney unprepared to go forward. She did not assert that there was any evidence she wished to present which was not available because she anticipated a continuance. She would have had N. present, if she had known that the hearing would proceed, but she made no offer of proof as to how his presence would have affected the outcome. In the absence of any representation that a continuance was necessary to allow counsel to produce a witness or other evidence, the court did not abuse its discretion in denying a continuance.
K. also argues that a brief continuance was in N.'s best interests because it would not have been contrary to N.'s interests. This circular argument is entirely unpersuasive: That a continuance would not have been contrary to N.'s interests does not demonstrate that a continuance would advance N.'s interests.
3.
THE COURT PROPERLY DENIED THE SECTION 388 PETITION
A party bringing a petition for modification pursuant to section 388 has the burden of proving both that changed circumstances or new evidence justify modifying a prior order and that modification of the order would be in the child's best interest. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The petition is addressed to the sound discretion of the juvenile court, and a reviewing court will not overturn the juvenile court's decision unless it exceeds the bounds of reason. (Id. at p. 318.)
Here, the court properly found that K.'s circumstances had not changed but were at most changing and that it was not in N.'s best interest to reinstate reunification services.
K. had a lengthy history of substance abuse which was very detrimental to her ability to provide for a child. She began using methamphetamine and marijuana in 1995, when she was 17 years old. At the time of the section 388 hearing, she was in her early 30's, and had a history of being in abusive relationships related to her drug dependency. Two prior attempts at drug diversion failed. She was involved in an earlier dependency proceeding because of substance abuse. At the time of the hearing, she had completed an inpatient drug and alcohol recovery program and would soon be starting an "intensive" outpatient drug and alcohol recovery program for mothers. While this is commendable, it is not sufficient to show that K. had overcome her drug dependency and had developed the ability to remain sober or provide a stable home for N. K. had been a substance abuser for her entire adult life, and for half her total life. Given that history, "real reform" requires more than being clean and sober for a few months while engaged in a supportive treatment program. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.) Accordingly, K.'s petition showed at most that her circumstances were changing; it did not show that they had changed. A petition which alleged "merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if [the] parent . . . might be able to reunify" with the child at some future point does not promote stability for the child and the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) Accordingly, the juvenile court did not abuse its discretion by denying K.'s section 388 petition.
4.
THE COURT DID NOT ABUSE ITS DISCRETION BY FINDING THAT THE
BENEFICIAL RELATIONSHIP EXCEPTION DOES NOT APPLY
Once the juvenile court has terminated reunification services, adoption becomes the presumptive plan for the child. "Whenever the court finds 'that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.' (§ 366.26, subd. (c)(1).) The circumstance that the court has terminated reunification services provides 'a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more' of specified circumstances. (Ibid.) The Legislature has thus determined that, where possible, adoption is the first choice. 'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' [Citation.] 'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.' [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 53.) Accordingly, if a child is adoptable, a juvenile court must order adoption unless the court finds, because of exceptional circumstances, that one of the exceptions provided for in section 366.26, subdivision (c)(1) applies. (In re Celine R., supra, at p. 53.) Because the statutory presumption favors adoption, the burden rests with the parent to prove that termination of parental rights would be detrimental to the child under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
One of the statutory exceptions is the so-called "beneficial parent-child relationship" exception. That exception provides that the court may decline to terminate parental rights if it finds a compelling reason for determining that termination would be detrimental to the child and the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Benefit to the child, under this exception, means that "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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The juvenile 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." (Ibid.) "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.)
K. asserted the beneficial relationship exception at the section 366.26 hearing, and the juvenile court found that it did not apply. She now contends that the termination order must be reversed because there was no substantial evidence that the exception did not apply. That is not, however, an accurate statement of the standard of review.
The standard of review which applies to a ruling that one of the statutory exceptions does not apply is the subject of some dispute. Some courts have applied the traditional substantial evidence rule, i.e., whether, when viewed in the light most favorable to the judgment, there is substantial evidence which supports the juvenile court's ruling. (See, e.g., In re Autumn H., supra, 27 Cal.App.4th at p. 575 [finding that "no exceptional circumstance exists" to justify application of the exception is challenged under substantial evidence rule].) Others have applied an abuse of discretion standard. (E.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Departing from either approach, the court in In re I.W. (2009) 180 Cal.App.4th 1517 concluded that because the burden is on the parent to demonstrate the existence of facts which support application of one of the exceptions, a ruling that the exception does not apply is, in effect, a finding that the parent failed to carry his or her burden of proof. (Id. at p. 1527.) The court rejected an argument that the substantial evidence rule applies: "In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Id. at p. 1528.) The substantial evidence test, in contrast, is implicated when the party which did not bear the burden of proof contends that the party which did bear the burden of proof succeeded at trial in spite of insufficient evidence. (Ibid.)
Although we acknowledge that In re I.W., supra, 180 Cal.App.4th 1517 correctly states and explains the standard of review of issues which turn on the appellant's failure of proof below, we nevertheless believe that, as expressed by the court in In re Jasmine D., supra, 78 Cal.App.4th 1339, a ruling that one of the statutory exceptions is inapplicable is best understood as an exercise of discretion. Section 366.26, subdivision (c)(1) requires the juvenile court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . ." That is, as the Jasmine D. court put it, "a quintessentially discretionary determination." (In re Jasmine D., supra, at p. 1351.)
Review of a determination that the exception does or does not apply "involves primarily factual matters and a judgment whether the ruling rests on a reasonable basis . . . . [Accordingly,] [b]road deference must be shown to the trial judge. The reviewing court should interfere only '"if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." [Citations.]' [Citation.]" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Of course, as the courts in both In re Jasmine D. and In re Robert L. pointed out, in evaluating the factual basis for an exercise of discretion, the reviewing court applies the substantial evidence rule. (In re Robert L., supra, 21 Cal.App.4th at p. 1067; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) And, because the trial court must find a compelling reason to decide against terminating parental rights, the rule stated in In re I.W., supra, also comes into play, in the sense that, assuming that the court applied the appropriate legal principles, it can be found to have abused its discretion only if the evidence presented in support of the exception is of "'such a character and weight'" as to compel the court to find that exception applies. (See In re. I.W., supra, 180 Cal.App.4th at p. 1528.) But this is true in any fact-based exercise of judicial discretion: As long as the trial judge applied the correct legal principles, his or her exercise of discretion can be reversed on appeal only if no judge, considering the relevant evidence most favorably to the court's action, could reasonably have made the order that he or she did. In contrast, if reasonable minds can differ as to the correct outcome, based on the same facts and legal principles, the trial court's ruling must be upheld. (See In re Robert L., supra, 21 Cal.4th at p. 1067; see also Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) It is merely a recasting of that rule to say that the court's exercise of discretion must be upheld unless the evidence, even when viewed most favorably to the ruling, required a different ruling.
Here, the evidence did not demonstrate any extraordinary circumstances which would compel the conclusion that adoption is not in N.'s best interest. All of the parties acknowledged that K. and N. had a bond, but there was no evidence that after some 15 months, or approximately half his life, living with his prospective adoptive family, N.'s bond to K. was of such strength and depth that severing it would cause such great harm to N. that it would outweigh the benefit he would obtain through adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) It may reasonably be supposed that there is "some measure of benefit" in continued contact between a parent and child who have a positive bond and that the child will suffer some negative effects from its severance, but that is not sufficient to establish that the child would be greatly harmed by termination of parental rights. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) K. did not introduce any evidence, such as a bonding study or other evidence from a psychological expert, which showed that termination of parental rights would be detrimental to N. within the meaning of In re Autumn H., supra, 27 Cal.App.4th 567. In the absence of such evidence, the juvenile court did not abuse its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at pp. 1350-1351.)
Nor did she make any offer of proof that she would have introduced such evidence if the court had granted her a continuance.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur: Ramirez
P.J.
Miller
J.