Opinion
E053322
11-08-2011
In re J.R., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. S.R. et al., Defendants and Appellants.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant S.R. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant M.C.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIJ119420)
OPINION
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant S.R.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant M.C.
Pamela J. Walls, County Counsel, and Ann M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
The parents of J.R. appeal an order terminating their parental rights. They contend that the juvenile court abused its discretion when it denied their petitions for modification of the order terminating reunification services and when it found the parental relationship exception to the preference for adoption to be inapplicable.
We will affirm the order.
FACTUAL AND PROCEDURAL HISTORY
J.R. was detained from her mother, M.C., and her father, S.R., when J.R. was 21 months old. The original petition filed pursuant to Welfare and Institutions Code section 300 alleged that the mother's use of methamphetamine and cocaine put J.R. at risk of physical and emotional harm, and that she had failed to comply with a safety plan put in place after an earlier referral. It also alleged that S.R. should reasonably have known about the mother's use of drugs but failed to intervene. It alleged that S.R., then the alleged father, was not a member of the child's household and failed to make himself available to provide for her needs. It also alleged that S.R.'s whereabouts were unknown and that he failed to provide care and support. The operative second amended petition also alleged that S.R. abused illegal substances, not limited to methamphetamine.
All statutory citations refer to the Welfare and Institutions Code.
The mother admitted to having used cocaine last in February 2010, and she tested positive on March 3, 2010, for methamphetamine, amphetamines, and cocaine. The father had been deported or had voluntarily left the country after being arrested for domestic violence, and the mother reported that she had not had any contact with him since 2009. However, a relative had seen him near the mother's apartment on March 3, 2010, and on March 4, the mother admitted that she had recently been in contact with him and that he had in fact been present in her home when she was being interviewed by a social worker on March 3, 2010.
Both parents appeared at the detention hearing. S.R. filed a statement of paternity acknowledging that he is the biological father and stating that he had previously signed a voluntary declaration of paternity. The court found that the Indian Child Welfare Act does not apply. It ordered the child placed in foster care and ordered supervised visitation and referrals to appropriate services for both parents.
The father was interviewed on March 23, 2010, and denied ever seeing the mother use illegal drugs but admitted that he knew that she used them. He admitted that he had used illegal drugs, but denied that he had failed to provide for J.R., except during the few months he was living in Mexico.
At the jurisdiction/disposition hearing, the court sustained the allegations of the petition as amended, except that it dismissed the allegation that the father's whereabouts were unknown. The court maintained J.R.'s placement in foster care and ordered reunification services for both parents. The court found S.R. to be the presumed father. The case plan included domestic violence programs, general counseling, parenting education and substance abuse treatment and testing.
J.R. was bonded to her foster parents and was doing well in their care. However, she was also bonded to her biological parents and greatly enjoyed her visits with them. She also looked forward to their telephone calls and would show disappointment if they failed to call or missed a visit. The parents' supervised visits went well and were appropriate, but they did miss several visits.
In its report for the six-month review hearing, the Department of Public Social Services (the Department) recommended that the court authorize an additional six months of services, noting that although the mother had only recently begun participating in her case plan, she had begun participating consistently and was benefitting from the services. The father had been participating in his case plan and was making progress. However, there had been an incident of domestic violence which resulted in a golf ball-sized bruise on the mother's arm. She reported that she and the father had moved in together and that he was coming home from work tired and irritable, which led in one instance to an argument and a physical altercation. The father denied that the incident had occurred.
In an addendum report, the Department changed its recommendation because the mother, who was pregnant, had tested positive for methamphetamine and had missed two drug test appointments after the positive test, and because the father had missed two drug test appointments. The Department recommended termination of services.
At the six-month review hearing, the court terminated services based on its finding that the parents had continued to engage in domestic violence and that the mother had continued to use illegal drugs. The court set a selection and implementation hearing. Neither parent filed a writ petition challenging that order.
J.R. was placed in a prospective adoptive home and was beginning to bond with her prospective adoptive parents. The parents continued to visit and telephone as permitted.
Both parents filed petitions pursuant to section 388 asking the court to reinstate reunification services because since the termination of services, they had completed their case plans and had negative drug tests. Both asserted that they had a strong bond with their daughter.
At the selection and implementation hearing, the juvenile court denied the section 388 petitions, finding that neither parent had demonstrated changed circumstances or that reinstating reunification services would be in J.R.'s best interest. It then found that J.R. was adoptable and was likely to be adopted, and found that the parental relationship exception to the statutory preference for adoption did not apply. It terminated parental rights and ordered J.R. placed for adoption.
Both parents filed timely notices of appeal. Each joins in the opening brief filed by the other.
LEGAL ANALYSIS
1.
THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE PARENTS' SECTION 388 PETITIONS
Section 388 provides that any interested person may petition for modification of an order in a dependency proceeding. A party bringing such a petition 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.)
After termination of reunification services, the court's focus is on promoting stability for the child. A petition which alleges "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.) 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. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
Here, the mother argued that her circumstances had changed because, following the termination of reunification services, she had on her own completed a drug treatment program and had tested negative "throughout the program." She attached to her petition a certificate of completion of the program. She had also completed other components of her program, including a 14-week parenting class and a 12-session program devoted to learning the differences between healthy and unhealthy relationships and helping children heal from domestic violence. Similarly, the father argued that his circumstances had changed because since the termination of services, he had completed parenting classes, was actively participating in anger management and individual counseling, and had tested negative for illegal drugs via hair follicle testing in November 2010. He attached a certificate of completion of the parenting course, letters concerning his participation in domestic violence and anger management classes and individual therapy, and a report showing negative results of the hair follicle test. Although the mother did not attach a report showing her negative drug test results, the father's petition included a report showing her negative test results, also in November 2010. Both parents asserted that they had a strong bond with J.R. and had maintained visitation with her.
At the outset of the hearing on the parents' petitions, the Department asked for a continuance to enable it to investigate the petitions to verify that the parents had indeed completed their case plans and to determine whether reinstating services would be appropriate. The court, however, denied the request. It said, "We get these all the time filed on the day of the [section 366.26] hearing, and we usually proceed on them without sending them out for investigation." The court then offered the parents the opportunity to put on testimony, but said "I reviewed both of your motions and documents attached. And based upon what I see right now I'm not going to be able to find change of circumstances or best interest of the child." The parents' attorneys elected to proceed solely by way of argument.
After the parties argued, the court found that the mother's circumstances were changing, but had not yet changed to the point that reinstating services would be in J.R.'s best interest. The court's finding was based primarily on the fact that the mother had used methamphetamine "as recently as September while pregnant with her other child." The court found that there was "some indication" that the father's circumstances were changing, but "based in part upon the continuing domestic violence," it could not find that his circumstances had changed.
It is arguable that the parents' circumstances had indeed changed, based on the documents attached to both petitions. However, although their petitions certainly made a prima facie showing of changed circumstances, we cannot find that the court abused its discretion in finding otherwise. The court's reliance on "continuing domestic violence" as a basis for finding that the father's circumstances had not changed is not supported by the evidence. The last reported incident of domestic violence occurred at the beginning of August 2010. The court ruled on the section 388 petitions on March 22, 2011. The absence of any reports of domestic violence for eight months, coupled with the father's continued participation in domestic violence and anger management counseling and therapy, is compelling evidence that the father had indeed changed one of the principal circumstances underlying the dependency. However, drug use by both parents was also a basis for the dependency. Although the father submitted reports showing that both had tested negative for illegal drugs in November, the absence of testimony to establish a foundation for the admissibility of the test reports means that the court was not compelled to find them reliable. And, the test results were six months old. There was no evidence as to whether the parents had continued to drug test since, nor any other evidence that neither had used illegal substances since the November test. As we discuss in more detail below, when a party who has the burden of proof on an issue contends that the trial court abused its discretion in finding that the party failed to carry that burden, which is the essence of the parents' arguments on appeal (i.e., because there was substantial evidence of changed rather than changing circumstances, the court abused its discretion in denying their petitions), the party can prevail on appeal only by showing that the evidence he or she presented was so compelling that no rational trier of fact could have rejected it. (See discussion below of the holding in In re I.W. (2009) 180 Cal.App.4th 1517.) For the reasons discussed above, the parents' evidence was not sufficiently compelling that the court could not reasonably reject it. Consequently, we cannot find an abuse of discretion.
2.
THE COURT DID NOT ABUSE ITS DISCRETION IN FINDING THE PARENTAL RELATIONSHIP EXCEPTION INAPPLICABLE
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 parental 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.)
Courts have applied a variety of standards of review to rulings that one of the statutory exceptions does not apply. 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., supra, 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 applicable to 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.App.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.
Applying that standard to the facts of this case, we find no abuse of discretion. As the parents point out, the Department's reports acknowledge that they had a bond with J.R. She recognized them as her biological parents, she looked forward to and enjoyed their visits and telephone calls, and showed great disappointment when one or both of her parents failed to attend a scheduled visit or to call her. However, after J.R. was placed in her prospective adoptive home in January 2011, the frequency of the parents' visits with J.R. was reduced to once a month. The record does not reveal that J.R. suffered as a result of the diminished contact with her parents. On the contrary, the evidence showed that J.R. was very happy in her prospective adoptive home and that she had bonded with her prospective adoptive parents, whom she called "mommy" and "poppy." The parents did not present any evidence, such as a bonding study, which showed that J.R. would suffer detriment from severance of her relationship with her parents sufficient to outweigh the benefit she would receive from having a stable, permanent home. Accordingly, we cannot say that the trial court abused its discretion in finding that the exception did not apply.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur:
Miller
J.
Codrington
J.