Contra Costa Cnty. Children
v.
D.Y. (In re A.Y.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWOSep 12, 2018
A153525 (Cal. Ct. App. Sep. 12, 2018)

A153525

09-12-2018

In re A.Y., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. D.Y., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1700030)

D.Y. (Mother), mother of one-year-old A.Y., appeals from the juvenile court's order denying her petition for modification, filed pursuant to Welfare and Institutions Code section 388, and its order terminating her parental rights and selecting adoption as the permanent plan, pursuant to section 366.26. Mother contends the court (1) abused its discretion when it denied her oral section 388 petition for modification, and (2) erred when it found inapplicable the beneficial parent-child relationship exception to adoption. We shall affirm the juvenile court's orders.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

The court also terminated the parental rights of A.Y.'s presumed father (Father). Father is not a party to this appeal and facts pertaining to him will be included to the extent they are relevant to Mother's appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant factual background prior to Mother's filing of a petition for extraordinary writ, pursuant to California Rules of Court, rule 8.452, is set forth in this court's December 28, 2017 opinion, in which we denied the petition based on our conclusion that substantial evidence supported the juvenile court's "finding that, in light of Mother's dishonesty, lack of insight, and willingness to endanger A.Y. by exposing her to Father, there was not a substantial probability that A.Y. may be returned to Mother's care if she were to receive an additional six months of reunification services. [Citations.]" (D.Y. v. Superior Court (Dec. 28, 2017, A152665) [nonpub. opn.].)

The juvenile court set the section 366.26 hearing at the conclusion of the October 5, 2017 six-month review hearing. Shortly thereafter, on October 18, the Contra Costa County Children and Family Services Bureau (Bureau) filed a request for a restraining order to protect A.Y., her "Non-Related Extended Family Member" (NFREM) caregiver, and the assigned social worker from contact with Father, who had threatened to harm the caregiver and the social worker and kidnap A.Y. On October 19, the court granted a temporary restraining order and suspended Father's visitation. On October 26, following a hearing, the court granted a permanent restraining order.

On January 18, 2018, the date of the permanency planning hearing, the social worker filed a section 366.26 report in which she described A.Y. as a healthy, active, and cheerful 11-month-old baby who was developmentally on target and liked having the attention of her prospective adoptive parent—the NFREM caregiver, who was the fiancée of the maternal grandfather.

A.Y. had lived with the 58-year-old prospective adoptive parent since February 17, 2017, and the home was "appropriate for her care and wellbeing. The caregiver ha[d] demonstrated her commitment to caring for [A.Y.] and ha[d] expressed the desire to adopt her." The caregiver, with whom A.Y. had "bonded well," was "very nurturing, affectionate and provide[d] for [her] physical and emotional needs." The prospective adoptive parent was currently going through the home study update approval process. She had "been supportive of mother throughout the process," but "was willing to provide permanency for [A.Y.] if the parents were unsuccessful in reunifying with the child."

A.Y. had initially been placed with Father after her birth in early January 2017, but was removed in early February and placed briefly in a foster home before being placed with the current caregiver on February 17.

Mother was complying with her monthly supervised visitation, and the visits reportedly had been going well.

The Bureau recommended that the court terminate the parental rights of both parents and make adoption the permanent plan for A.Y.

At the January 18, 2018 section 366.26 hearing, Mother's counsel first made an oral petition for modification, pursuant to section 388, submitting two documents and alleging changed circumstances. The court considered the documents, but denied the section 388 petition.

The parties presented no evidence at the subsequent section 366.26 hearing. Following arguments by counsel, the court found A.Y. adoptable, found the beneficial parent-child relationship exception to adoption inapplicable, and terminated both parents' parental rights.

On January 31, 2018, Mother filed a notice of appeal.

DISCUSSION

I. Denial of Mother's Section 388 Petition

Mother contends the juvenile court abused its discretion when it denied her oral section 388 petition for modification.

A. Juvenile Court Background

In support of Mother's oral section 388 petition, her counsel submitted two documents that purportedly showed changed circumstances. The first document was a domestic violence support group attendance log from "STAND! For Families Free of Violence" (STAND!), showing that Mother had attended 18 sessions between September 5, 2017 and January 8, 2018. The second document was a mental health assessment by a marriage and family therapist who had met with Mother three times to complete the assessment. The therapist believed that Mother's "current length of and commitment to sobriety, her work with STAND! [a]s well as her established sober living environment now position her to be able to address and heal from deeper issues of trauma while continuing to explore and employ healthier coping tools. In doing so her chances of maintaining a safe and sober lifestyle will continue to increase. . . ."

Mother's counsel argued that the assessment demonstrated changed circumstances because it showed that Mother had the ability to stay clean and sober and exercise good judgment that would keep A.Y. safe. Counsel believed the documents also showed that it would be in A.Y.'s best interest for the court to order additional reunification services for Mother.

The court acknowledged Mother's efforts to improve her situation, but noted that the primary issues of concern, as discussed at the previous hearing, were Mother's "deception and manipulation and her untruthfulness and her judgment." The court found that Mother had shown no change of circumstances as to those issues and further found that it would not be in A.Y.'s best interest to continue the dependency and provide Mother with additional services. The court therefore denied the section 388 petition.

At the conclusion of the October 5, 2017 six-month review hearing, the court had explained its reasons for terminating Mother's reunification services and setting the matter for a section 366.26 hearing despite the significant progress Mother had made in achieving sobriety. The court stated that Mother was "deceptive and manipulative" and a "pathological liar" who intentionally exposed A.Y. to danger by repeatedly allowing Father to have contact with her. The court concluded that it "would never trust her not to keep [lying and exposing A.Y. to danger] in another way or form even if I give her more time."

B. Legal Analysis

Section 388, subdivision (a)(1) provides in relevant part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . ." In addition, "[i]f it appears that the best interests of the child . . . may be promoted by the proposed change of order," "the court shall order that a hearing be held . . . ." (§ 388, subd. (d).)

"At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) "A primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citations.]" (Ibid.)

We review the juvenile court's denial of Mother's section 388 petition for an abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) As our Supreme Court has "warned: ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' [Citations.]" (Id. at pp. 318-319.)

In the present case, we conclude the juvenile court reasonably found that while the two documents submitted at the hearing demonstrated Mother's commendable efforts at overcoming her addiction and history of domestic violence, they did not even address—much less show a change of circumstances regarding—the issues the court had found continued to endanger A.Y., i.e., Mother's "deception and manipulation and her untruthfulness and her judgment." The court thus did not abuse its discretion when it concluded Mother had not shown a change of circumstances warranting reinstatement of her reunification services. (See § 388, subd. (a)(1); Stephanie M., supra, 7 Cal.4th at pp. 317-318.) Likewise, the court did not abuse its discretion when it found that it would not be in A.Y.'s best interest to continue the dependency, which would delay the opportunity for stability and permanency that would come with adoption. (See § 388, subd. (d); Stephanie M., at pp. 317-318; see also pt. II., post.)

Mother argues that evidence of changed circumstances includes the permanent restraining order she obtained against Father in the months between the termination of her reunification services and the hearing on the section 388 petition. However, Mother presented no evidence regarding or discussion about the restraining order at the hearing. Moreover, when the court terminated her reunification services and set the matter for a section 366.26 hearing, its concerns about Mother's dishonesty, judgment, and manipulative behavior went beyond her relationship with Father and included the court's belief that it "would have a hard time believing anything else she tells the court."

Because we have found that the court did not abuse its discretion when it denied Mother's section 388 petition, we need not address Mother's contention that "[b]ecause the juvenile court erred in denying [her] section 388 petition, all subsequent orders of the juvenile court must be vacated, including the order terminating [her] parental rights. [Citation.]"

II. Applicability of the Beneficial Parent-Child

Relationship Exception to Adoption

Mother contends the court erred when it found she failed to establish the applicability of the beneficial parent-child relationship exception to adoption.

A. Juvenile Court Background

At the January 18, 2018 permanency planning hearing, Mother did not present any evidence, but counsel did argue that prior to the reduction in visitation following the six-month review hearing, Mother had regularly visited A.Y. and had a significant attachment to the child.

At the conclusion of the hearing, the court found by clear and convincing evidence that it was likely A.Y. would be adopted. In finding the beneficial parent-child relationship exception to adoption inapplicable, the court explained: "I do know the child is in a residential caregiver's home, which I think is in the best interest of this child. [¶] And I do find that the need for this child to find the stability and safety required for the child's growth and development far exceeds any visitation orders for the mother. [¶] I think it's nice to have a visit, but I don't find it outweighs the need for this child to have stability and safety, which I think is paramount in this case."

Although the Bureau had recommended posttermination visitation between Mother and A.Y. at the discretion of the prospective adoptive parent, the court declined to order visitation, stating that she did not "trust the mother and her discretion as to what she would do with a visit at this time," describing her as being "incredibly manipulative." The court further stated that it was "not trying to control this for the future, but I want the caregiver to know that." --------

B. Legal Analysis

When the court finds that a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds by clear and convincing evidence, pursuant to one of the statutorily-specified exceptions, "compelling reason[s] for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The parent has the burden of proving detriment under any of these exceptions. (In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).)

At issue here is the beneficial parent-child relationship exception, which applies if the juvenile court finds by clear and convincing evidence that the "parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)

There is no dispute that Mother maintained regular, positive visitation with A.Y., initially progressing from supervised visits to unsupervised overnight visitation until reunification services were terminated, when visits again became supervised and were reduced to once a month.

With respect to the second prong of the exception—whether the child would benefit from continuing the relationship with the parent—the appellate court in C.F. "interpreted the phrase 'benefit from continuing the relationship' in section 366.26, subdivision (c)(1)(B)(i) to refer to a 'parent-child' relationship that '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 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.' [Citation.]

"A parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. . . .' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.] Further, to establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. [Citation.]" (C.F., supra, 193 Cal.App.4th at p. 555, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.), fn. omitted.)

"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.) "Application of this exception is decided on [a] case-by-case basis and a court takes into account such factors as the minor's age, the portion of the minor's life spent in the parent's custody, whether interaction between parent and child is positive or negative, and the child's particular needs." (In re Scott B. (2010) 188 Cal.App.4th 452, 471, citing Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)

Appellate courts have differed on the correct standard of review for determining the applicability of a statutory exception to termination of parental rights. (Compare, e.g. Autumn H., supra, 27 Cal.App.4th at p. 576 [applying substantial evidence standard]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying abuse of discretion standard]; In re K.P. (2012) 203 Cal.App.4th 614, 621-622 (K.P.) [applying substantial evidence standard to whether beneficial parent-child relationship exists and applying abuse of discretion standard to whether that relationship provides a compelling reason to apply exception].) Although the "practical differences" among these various standards of review "are not significant" (Jasmine D., at p. 1351), we believe that use of the hybrid standard of review, which incorporates both the substantial evidence and the abuse of discretion standards, is appropriate when reviewing juvenile court determinations regarding the statutory exceptions to adoption. (See K.P., at pp. 621-622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)

In the present case, although the record shows that Mother and A.Y. enjoyed their visits together and that Mother was loving and attentive to A.Y.'s needs during those visits, the record also shows that one-year-old A.Y. never lived with Mother and had lived with the prospective adoptive parent for all but the first six weeks of her short life. (See In re Scott B., supra, 188 Cal.App.4th at p. 471.) A.Y. had bonded well with the prospective adoptive parent, who was the fiancée of the maternal grandfather and was committed to adopting A.Y. and providing for her physical and emotional needs. (See ibid.)

We conclude substantial evidence supports the court's finding that Mother did not satisfy her burden of showing that she occupied a parental role with A.Y. (See C.F., supra, 193 Cal.App.4th at p. 555; § 366.26, subd. (c)(1)(B)(i); see also K.P., supra, 203 Cal.App.4th at pp. 621-622.) Moreover, in light of this evidence showing that Mother did not occupy a parental role with A.Y. and that it is the prospective adoptive parent who occupies that role and who continues to provide A.Y. with stability and security, we also conclude the court did not abuse its discretion when it found that a continued relationship with Mother would not promote A.Y.'s well-being " 'to such a degree as to outweigh the well-being [she] would gain in a permanent home with [a] new adoptive [parent].' " (C.F., at p. 555; see § 366.26, subd. (c)(1)(B)(i); K.P., at p. 622.)

DISPOSITION

The juvenile court's orders denying Mother's oral section 388 petition for modification, terminating Mother's parental rights, and selecting adoption as the permanent plan are affirmed.

/s/_________


Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.