In re M.C. CA2/5 ( 2021 )


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  • Filed 12/14/21 In re M.C. CA2/5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    In re M.C. et al., Persons Coming                               B311839
    Under the Juvenile Court Law.                                   (Los Angeles County
    Super. Ct. No. CK98742A-C)
    LOS ANGELES COUNTY
    DEPARTMENT OF CHILDREN
    AND FAMILY SERVICES,
    Plaintiff and Respondent,
    v.
    A.E. et al.,
    Defendants and Appellants.
    APPEAL from orders of the Superior Court of Los Angeles
    County, Stephen C. Marpet, Judge. Affirmed.
    Gina Zaragoza, under appointment by the Court of Appeal,
    for Defendant and Appellant A.E.
    Elizabeth Klippi, under appointment by the Court of
    Appeal, for Defendant and Appellant A.J.
    Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
    Assistant County Counsel, and Jane Eunjung Kwon, Principal
    Deputy County Counsel, for Plaintiff and Respondent.
    Mother A.E. and father A.J. appeal from orders
    terminating parental rights to their respective children. Mother
    appeals from the juvenile court’s order as to children M.C. (born
    2013), V.C. (born 2014), and D.J. (born 2016). A.J. is the father of
    only one of the three children, D.J., and appeals the termination
    of his parental rights as to D.J.
    At the selection and implementation hearing, mother’s
    counsel asked the juvenile court to hold a contested hearing to
    allow her to prove the beneficial parent-child relationship
    exception to the termination of parental rights. At the contested
    hearing, mother failed to appear but counsel submitted a letter
    mother had written. Counsel failed to present any other evidence
    or argument. The juvenile court found the parental benefit
    exception did not apply. Mother contends the juvenile court’s
    failure to articulate reasons for its finding is reversible error
    because it is unclear whether the court applied the correct legal
    standard. We find no error.
    Father adopts mother’s arguments on appeal, making none
    of his own. Father’s appeal fails for the same reasons as does
    mother’s. We affirm the challenged orders.
    FACTUAL AND PROCEDURAL BACKGROUND1
    On May 31, 2016, the Los Angeles County Department of
    Children and Family Services (DCFS) filed a petition pursuant to
    Welfare and Institutions Code section 300, subdivisions (a),
    1     Due to the length of the dependency proceedings and the
    single issue raised, we provide only an abbreviated procedural
    and factual background.
    2
    (b)(1), and (j).2 The juvenile court sustained the subdivision (a)
    and (b)(1) counts, finding mother and father engaged in domestic
    violence in the children’s presence, were current abusers of
    marijuana, and mother failed to protect the children from father’s
    substance abuse. It dismissed the subdivision (j) count that dealt
    with claims of sibling abuse or neglect.
    At the disposition hearing, the juvenile court removed D.J.
    from father and all three children from mother.3 The court
    ordered mother and father to submit to random drug testing and
    individual counseling as well as complete domestic violence
    classes and parent education classes. At the six-month and
    twelve-month review hearings, the juvenile court found mother
    and father were generally in compliance with the case plan.
    During this time, mother consistently visited the children and
    the monitors reported no problems with her visits. By
    September 13, 2017, one month after the twelve-month review
    hearing, mother had regained custody of the children and father
    was granted unmonitored visits with D.J. The juvenile court
    noted mother’s “outstanding progress” in its order.
    Two weeks later, mother was arrested for driving under the
    influence of alcohol while the children were in the car. 4 She
    admitted to the children’s social worker that she drank “two
    small glasses of wine” because she “was feeling overwhelmed by
    2    All further undesignated statutory references are to the
    Welfare and Institutions Code.
    3    M.C. and V.C.’s father died prior to the initiation of these
    proceedings.
    4     M.C. and V.C.’s paternal grandmother retrieved the
    children after mother was arrested.
    3
    everything, the case, the children . . . .” The arresting officer
    reported mother indicated at the scene she had one glass of wine
    but unintentionally disclosed at the hospital that she had one
    bottle of wine. Mother’s blood alcohol concentration at the scene
    was .242 and .244, which is slightly over three times the legal
    limit, and .20 at the hospital.
    The juvenile court authorized the children’s removal from
    mother’s custody upon DCFS’s petition. The children were placed
    with M.C. and V.C.’s paternal great-aunt. (D.J. was not related
    by blood to her half siblings’ paternal relatives.) DCFS filed a
    subsequent petition pursuant to section 342 alleging additional
    jurisdictional grounds over the children under section 300,
    subdivision (b)(1). The section 342 petition alleged mother’s
    substance and alcohol abuse rendered her incapable of providing
    regular care for her young children, citing the drunk driving
    incident.
    1.     Termination of Reunification Services
    On February 23, 2018, the juvenile court conducted the 18-
    month review hearing as well as the adjudication hearing on the
    section 342 petition. It terminated reunification services for
    mother and father. Neither parent objected to this ruling. The
    court also sustained the section 342 allegations against mother
    and changed father’s visitation from unmonitored to monitored
    due to an altercation between father and mother during one visit.
    The court initially set a 366.26 permanency plan hearing for
    June 22, 2018, which was continued several times to allow DCFS
    to assess and search for viable adoptive parents.
    Over the next 20 months, DCFS unsuccessfully explored
    adoption by maternal and paternal relatives as the permanent
    plan for the children. In April 2018, the children were placed
    4
    with foster mother C.S., with whom they had previously lived. In
    October 2019, DCFS abandoned its efforts to have the children
    adopted by relatives and recommended legal guardianship with
    C.S. In August 2020, C.S. committed to adopting the children
    despite initially preferring legal guardianship.
    After reunification services were terminated, mother
    continued to visit the children consistently. In September 2019,
    she began regular visits with the children at a visitation center
    near C.S.’s home. The monitors reported mother was nurturing
    and engaged with the children during her weekly visits. C.S. also
    reported mother was consistent with her weekly visits. On the
    other hand, DCFS reported that during this time father’s visits
    with D.J. were inconsistent. The record shows he only visited her
    once.
    Mother transitioned to virtual visits with the children in
    2020 due to restrictions imposed by the COVID-19 pandemic.
    C.S. reported the children, aged seven, six, and four, sometimes
    were not interested in speaking to mother but generally enjoyed
    her virtual visits. Mother resumed in-person visits on June 21,
    2020, with a DCFS monitor and COVID-safety measures in place.
    Mother consistently visited the children every other week during
    this time.
    On November 12, 2020, mother filed a petition under
    section 388, seeking custody of the children or reinstatement of
    reunification services and unmonitored visitation “to maintain
    important familial ties.” In support, mother stated she was
    focused on her sobriety and presented evidence she previously
    completed alcohol and drug programs in 2017 and 2018. She
    asserted she was no longer involved with father, had completed
    domestic violence and parenting classes in 2017, and was
    5
    currently enrolled in individual therapy and attending AA
    meetings. Copies of various completion certificates were
    attached. She stated she had a close and bonded relationship
    with each child, she visited them weekly, and each child
    expressed that she missed mother and wanted to live with her.
    The juvenile court summarily denied the request, finding it was
    not in the children’s best interest and there was no change of
    circumstance.
    Mother had three virtual visits in November and December
    2020, but no in-person or virtual visits after December 10, 2020.
    Mother explained to the court she missed two scheduled visits
    because she was sick and had to work.
    2.     Termination of Parental Rights
    On February 17, 2021, mother appeared with counsel at the
    section 366.26 selection and implementation hearing via WebEx.
    Counsel for mother requested the court order a bonding study
    and set a contested hearing on the issue of adoptability. Counsel
    stated, “Mother here is asking to set this matter for contest and
    she and/or the children will testify as to the details of their
    relationship and their bond which has been previously
    documented by the county in the October 2020 RPP report at
    pages 12 and 13.” Mother’s counsel further requested DCFS
    interview the children regarding their desire for continued
    visitation with mother to eliminate the need to call them to
    testify. Father joined mother’s request for a contested hearing.
    The juvenile court denied the request for a bonding study but set
    the contested hearing for March 26, 2021. Mother does not
    challenge on appeal the court’s denial of the request for a bonding
    study.
    6
    On March 11, 2021, DCFS interviewed the children to
    discuss their wishes regarding adoption and visitation with
    mother. The children’s social worker emphasized to the children
    the importance of knowing their wishes so they can be conveyed
    to the court. All three children were enthusiastic about adoption
    by C.S.
    Each child reported she had issues with their contacts with
    mother. Eight-year-old M.C. reported she felt nervous during her
    calls with mother because “she might scream at me or be mad
    [C.S.] is going to adopt me.” She observed her sisters behaved
    badly after mother’s calls, including screaming and hitting one
    another. She told the social worker, after the adoption, she
    wanted to speak with mother on the phone “but no FaceTime or
    [in-person] visits.”
    V.C., who was almost seven years old, admitted she
    sometimes did not talk with mother because she was distracted.
    She described feeling “happy, angry, scared, nervous” during her
    calls and chats with mother because mother told her C.S. was not
    her real family, which made V.C. mad and angry. When asked
    what kind of contact she wanted with mother after the adoption,
    V.C. said, “I don’t never want to see my mom. I can see her in my
    dreams.” She elaborated she wanted to talk to mother but only if
    she cannot see her face.
    Five-year-old D.J. reported she sometimes liked speaking
    with mother and sometimes did not like it. She explained, “When
    I don’t talk to her she screams at me.” She also stated, “I never
    talk to her. I never like talking to her.” D.J. initially indicated
    she did not want any contact with mother after the adoption but
    upon further questioning, said she would be willing to speak to
    mother “only with voice.”
    7
    At the contested section 366.26 hearing, neither mother nor
    father appeared. At counsel’s request, the court admitted a letter
    that mother had written:
    “I would like for the court to know that I love my daughters
    with all of my heart and I take accountability for the terrible
    mistakes I made. I started working very hard to better myself
    and my life to be able to make better choices for myself and my
    children. But no matter how hard I tried and how much I
    changed my life it was never enough in the eyes of the system, a
    system that did not serve its justice by tearing me and my girls
    apart. I just as [sic] they don’t deserve this, I am not a bad
    mother, I am not a bad person, yes I made bad choices but that
    does not define me or who I have become today. An independent
    woman who works hard, has morals, is educated, and is not
    afraid of whatever life has to throw in her path. I deserve to have
    my children just like they deserve to have me. Please don’t
    overlook my case and give me the opportunity to be in their life. I
    will continue to do whatever it takes to prove that I am not the
    person that I’m portrayed to be. Please don’t take the easy route
    and give my daughters up for adoption.”
    The court stated it had read and considered mother’s letter.
    Father’s counsel did not introduce any evidence or make any
    argument before the court’s ruling. The court found the parental
    benefit exception did not apply. The court also found by clear and
    convincing evidence the children would be adopted. It
    terminated parental rights. Counsel for mother and father
    objected to the termination of their parental rights for the record.
    Mother’s counsel argued mother had made progress toward her
    case plan and asked the court to elect any other permanent plan
    besides adoption. The court did not change its findings or orders.
    8
    Mother and father timely appealed.
    DISCUSSION
    Mother’s – and by extension, father’s – sole contention on
    appeal is that the juvenile court erred when it found the parental
    benefit exception did not apply without articulating its reasons
    for the finding. According to mother, it is unclear which legal
    standard the juvenile court applied to reach its conclusion and
    she urges us to remand the matter so the court may apply the
    standard recently set forth by the California Supreme Court in In
    re Caden C., supra, 
    11 Cal.5th 614
    .
    Before we reach mother’s contention, we first address
    DCFS’s assertion that she has forfeited her claim by failing to
    raise the parental benefit exception below. This argument is
    meritless. The record discloses mother’s counsel requested a
    contested hearing at the February 17, 2021 selection and
    implementation hearing to allow mother to demonstrate the
    parental benefit exception and avoid the termination of her
    parental rights. The juvenile court granted this request and set
    the contested hearing for March 26, 2021.
    As to the merits of her claim, mother relies on section
    366.26, subdivision (b) and In re Bernadette C. (1982)
    
    127 Cal.App.3d 618
    , 625 (Bernadette C.), to argue the juvenile
    court was required to articulate its reasons for finding the
    parental benefit exception did not apply.
    First of all, Bernadette C. has nothing to do with the
    parental benefit exception or termination of parental rights. It
    deals with the appropriate burden of proof at a jurisdiction
    (preponderance of the evidence) and disposition (clear and
    convincing evidence) hearing. (127 Cal.App.3d at pp. 624–625.)
    The court observed: “ ‘The question of need to articulate the
    9
    standard of proof employed by a trial court has recently been
    addressed by our Supreme Court. In essence it held that where a
    new standard of proof recently has been announced, or where the
    issue of the applicable standard is unclear, articulation is
    required. [Citations.] On the other hand, where the issue is well
    settled, it is presumed that the trial judge applied the
    appropriate standard and no articulation is required. [Citation.]’
    [Citation.]” (127 Cal.App.3d at p. 625.) Bernadette C. is nearly
    40 years old and its “recent articulation theory” has no apparent
    bearing on the current appeal where the standard of proof is well
    settled.
    We start with the applicable statute. Section 366.26,
    subdivision (b) specifies that the juvenile court “shall review the
    [applicable DCFS] report . . . , shall indicate that the court has
    read and considered it, shall receive other evidence that the
    parties may present, and then shall make findings and orders”
    regarding the court’s selection of a permanent plan for the
    dependent child. Although the “clear and convincing standard” is
    to be applied in determining whether the child is likely to be
    adopted, even on that issue the statute does not require the
    juvenile court to articulate the standard of proof. As for the
    parental benefit exception to adoption in which the parent must
    prove the exception by a preponderance of the evidence (In re
    Valerie A. (2007) 
    152 Cal.App.4th 987
    , 1007 (Valerie A.), the court
    is not required to make express findings unless it finds the
    exception applies and adoption no longer is the permanent plan.
    (In re Jesse B. (1992) 
    8 Cal.App.4th 845
    , 851.) “If the court finds
    that termination of parental rights would be detrimental to the
    child pursuant to clause (i), (ii), (iii), (iv), (v), or (vi), it shall state
    its reasons in writing or on the record.” (§ 366.26, subd.
    10
    (c)(1)(D).) When the juvenile court finds, instead, that the
    parental benefit exception does not apply and adoption remains
    the permanent plan (as was the case here), no express findings
    are required.
    “It is apparent from the statutory provisions that the
    Legislature demands an express finding on the matter of
    detriment only when the juvenile court determines detriment
    exists and relies upon it to refuse to enter an otherwise proper
    termination order. [¶] . . . [¶] Otherwise, when the court issues a
    termination order the appellate court will assume, in the absence
    of a contrary indication in the record, that the juvenile court
    considered the question of detriment and found none of the four
    statutory conditions had been established. In other words, we
    will imply, from the entry of a termination order, a negative
    finding on the question of detriment.” (In re Jesse B., supra,
    8 Cal.App.4th at p. 851.) As for the burden of proof, appellate
    courts have long applied the preponderance of the evidence
    standard to cases involving exceptions to the termination of
    parental rights. (See Valerie A., supra, 152 Cal.App.4th at
    p. 1007; Seiser & Kumli, Cal. Juvenile Courts Prac. & Proc.
    (2021) § 2.171[5][b][ii][A].)
    Mother implies Caden C., supra, 11 Cal.5th at p. 636,
    established a new standard to evaluate the statutory exceptions
    to adoption, thus requiring an articulation of reasons for the
    finding. Mother is mistaken. Caden C. used the preponderance
    of the evidence standard and did not set forth a new standard of
    proof. (Ibid.) Given these authorities, the juvenile court did not
    err when it failed to articulate reasons for its finding the parental
    benefit exception did not apply. There is also nothing in the
    record that suggests the juvenile court failed to use the
    11
    preponderance of the evidence standard in evaluating mother’s
    claim of parental-benefit exception.
    Even if the juvenile court was required by In re Bernadette
    C. to articulate its reasoning because the criteria used to evaluate
    the parental benefit exception was unclear prior to Caden C., any
    error was harmless because mother failed to meet her burden of
    proof. In Caden C., the Supreme Court identified “three elements
    the parent must prove [by a preponderance of the evidence] to
    establish the [parental benefit] exception: (1) regular visitation
    and contact, and (2) a relationship, the continuation of which
    would benefit the child such that (3) the termination of parental
    rights would be detrimental to the child.” (Caden C., supra,
    11 Cal.5th at p. 631.)
    Here, mother did not present sufficient evidence to satisfy
    her burden of proof as to the second element of a beneficial
    relationship. While her counsel indicated she and the children
    would testify regarding their relationship and bond, she failed to
    present any evidence of it. Counsel offered only a letter in which
    she stated she loved her children, acknowledged her mistakes,
    and described her efforts to improve. The letter said nothing
    about her relationship or bond with the children. By contrast,
    DCFS’s interviews with the children, which mother’s counsel
    indicated the court could consider in lieu of their testimony,
    showed the children’s ambivalence towards visits and contact
    with mother. Each indicated a desire for limited contact with
    mother after the adoption.
    By any standard, the evidence was insufficient to
    demonstrate the children had “a substantial, positive, emotional
    attachment to the parent.” (Caden C., supra, 11 Cal.5th at
    p. 636; In re Autumn H. (1994) 
    27 Cal.App.4th 567
    , 575.) Given
    12
    this, we need not address the remaining two elements identified
    in Caden C. In short, mother was not prejudiced by the court’s
    failure to state reasons for its finding that the parental benefit
    exception did not apply. (In re Vincent S. (2001) 
    92 Cal.App.4th 1090
    , 1093; see Andrea L. v. Superior Court (1998)
    
    64 Cal.App.4th 1377
    , 1387 [refusal to reverse for a contested
    hearing because it was an idle act and no prejudice arose from
    error].)
    DISPOSITION
    The orders terminating mother’s and father’s parental
    rights are affirmed.
    RUBIN, P. J.
    WE CONCUR:
    MOOR, J.
    KIM, J.
    13
    

Document Info

Docket Number: B311839

Filed Date: 12/14/2021

Precedential Status: Non-Precedential

Modified Date: 12/14/2021