In re Isaiah B. CA2/7 ( 2022 )

Filed 5/16/22 In re Isaiah B. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Isaiah B., a Person Coming B313578
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK23300B
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.T.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Philip L. Soto, Judge. Affirmed.
David M. Yorton, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Deputy
County Counsel, for Plaintiff and Respondent.
___________________________
E.T., mother of now-eight-year-old Isaiah B., appeals the
juvenile court’s May 13, 2021 order denying her request for
reinstatement of family reunification services (Welf. & Inst. Code,
§ 388)1 and the court’s order the same day terminating parental
rights (§ 366.26). E.T. contends the court erred in concluding
additional reunification services were not in Isaiah’s best interest
and the beneficial parent-child relationship exception to
termination (§ 366.26, subd. (c)(1)(B)(i)) did not apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Sustained Section 300 Petition and Disposition
On January 16, 2018, following E.T.’s no contest plea, the
juvenile court sustained a first amended section 300 petition,
finding three-year-old Isaiah and his older brother, 11-year-old
Matthew, were at substantial risk of serious physical harm
inflicted nonaccidentally (§ 300, subds. (a), (j)) after E.T. used
excessive corporal punishment on Isaiah.2 In particular, the
court found that, in disciplining Isaiah after he ran away from
E.T. during an outing, E.T. grabbed Isaiah by his shirt, picked
him up and slammed him to the ground, causing pain to his head.
She was restrained by a bystander and arrested for felony child
endangerment. The court also found true allegations that E.T.
had a history of substance abuse, including alcohol and
marijuana, and was a current abuser of marijuana and that her
1 Statutory references are to this code.
2 Because Matthew is not the subject of E.T.’s appeal, we
refer to him only occasionally.
2
substance abuse placed both children at substantial risk of
serious physical harm (§300, subd. (b)).3
At the contested February 14, 2018 disposition hearing, the
court declared Isaiah and Matthew dependent children of the
court, removed them from parental custody, and placed them
under the care and supervision of the Los Angeles County
Department of Children and Family Services for suitable
placement. The court ordered family reunification services for
E.T., including four on-demand consecutive drug tests, a full
drug/alcohol program if she missed or failed any test, completion
of a one-year parenting program, and individual counseling to
address anger management and child discipline. It limited E.T.
to monitored visitation, granting the Department discretion to
liberalize visits.
2. The Review Hearings
At the six-month review hearing (§ 366.21, subd. (e)) on
August 15, 2018, the court found E.T. in partial compliance with
her case plan and continued family reunification services, this
time with unmonitored visitation and discretion to the
Department to liberalize with overnight visits. The court ordered
that Isaiah was to have no contact with E.T.’s then-boyfriend,
Frederick Y., until Frederick submitted to a criminal background
check and the court approved the contact.4
3 The petition also alleged Isaiah’s father, who was
incarcerated, had an extensive criminal history, including violent
crimes and drug offenses.
4 E.T. told the social worker she had not wanted to “put
Frederick” through the burden of submitting to a criminal
background check.
3
At the 12-month review hearing (§ 366.21, subd. (f)) on
May 14, 2019, the Department reported E.T. was in substantial
compliance with her case plan, but questioned whether she had
learned anything from her programs. The Department stated
that E.T. was quick to anger during wraparound sessions in her
home and unable to adjust, either on her own or when assisted by
a wraparound services parent partner. The Department also
informed the court E.T. had been somewhat inconsistent in
visiting with Isaiah. The Department recommended
reunification services be terminated.
The court found E.T.’s compliance with her case plan
substantial and, over the Department’s objection, ordered Isaiah
(and Matthew) returned to E.T.’s custody with family
maintenance services. The court ordered E.T. to drug and alcohol
test “on demand with reasonable suspicion,” to attend group
anger management, to complete her one-year parenting course as
ordered by the criminal court when it sentenced her in the child
endangerment case, and to make Isaiah available for
unannounced visits by the Department. The court ordered E.T.
“not to allow” her children to have any contact with Frederick
until Frederick submitted to a criminal background check and
was cleared by the Department. The court set a section 364
review hearing for November 13, 2019.
3. The Section 342 Subsequent Petition, Section 387
Supplemental Petition and Isaiah’s Redetention
On October 31, 2019 the Department filed a
section 342 subsequent petition alleging E.T. and Frederick had a
history of violent altercations in the children’s presence; on
October 24, 2019 Frederick struck E.T. in the face and stomach
while she was pregnant; and E.T. was a current abuser of
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marijuana and alcohol whose substance abuse rendered her
incapable of providing regular care and supervision for her
children. The Department contemporaneously filed a section 387
supplemental petition alleging the court’s prior order was
ineffective in protecting Isaiah: E.T. had physically abused
Isaiah in October 2019 by striking him on the face, leg and all
over his body; failed to submit to random drug testing; and failed
to make Isaiah available for the Department’s unannounced
home visits despite the court’s order.
According to the Department’s report prepared for the
detention hearing, Isaiah and his brother observed drug and
alcohol use by E.T. and Frederick in the children’s presence, and
E.T. “added black rocks” and sometimes “white stuff” to her
cigarette. Isaiah reported his mother “gets mad” and hits him
“everywhere, 100 times” with an open hand. Matthew confirmed
E.T. hit Isaiah. Isaiah was not afraid of E.T; he was afraid of
Frederick, whom he observed hitting E.T., and did not want
Frederick to pick him up from school. Matthew reported that,
when E.T. was under the influence of alcohol, he would have to
take care of her and prevent her “from doing anything stupid.”
When the social worker interviewed E.T., the social worker
observed her to be under the influence of alcohol. Wraparound
team members also reported E.T. being under the influence of
alcohol on several occasions.
The court ordered Isaiah and his brother detained from
E.T. and placed in the temporary custody of the Department with
monitored visitation for E.T.
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4. Jurisdiction Hearing on the Subsequent and
Supplemental Dependency Petitions
At the December 4, 2019 jurisdiction hearing the court
sustained the new counts of physical abuse and failure-to-protect
in both the section 342 subsequent petition and the section 387
subsequent petition, found by clear and convincing evidence that
removal was necessary to protect Isaiah and his sibling,
terminated family reunification services for both parents and set
a section 366.26 hearing for April 1, 2020 to consider terminating
parental rights. The court ordered monitored visitation for E.T.
5. E.T.’s Section 388 Petition and Hearing and the
Section 366.26 Selection and Implementation Hearing
The section 366.26 hearing, continued numerous times,
occurred on April 30, 2021. On April 29, 2021 E.T. filed a
section 388 petition seeking reinstatement of family reunification
services and/or return of E.T. to her custody. The court continued
the section 366.26 hearing to May 13, 2021 and set a hearing on
E.T.’s section 388 petition for the same date.
At the section 388 hearing E.T. and her counsel orally
modified E.T.’s section 388 petition to request reinstatement of
reunification services while E.T. completed an alcohol program,
not a return of Isaiah to her custody. E.T. testified she had
completed a domestic violence/restorative justice class and
learned techniques to manage anger without violence. She also
completed a six-month drug and alcohol class and learned about
a 12-step program, although she acknowledged she needed, but
never had, a sponsor, did not formally do the 12-steps and still
required a formal program to effectively address her alcoholism.
E.T. asserted she had not used alcohol or any drugs since
February 2020 when she was arrested for driving under the
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influence. (E.T. insisted she had not been driving at the time;
she was homeless and had been sleeping in her car when
arrested.) She realized she could not keep “doing this to her kids”
and needed help. She explained she was currently in individual
counseling—she had attended eight sessions since February
2021—and said it was helping her. She had not been able to
start individual counseling sooner because programs were
difficult to find during the height of the COVID-19 pandemic.
Her failure to see Isaiah in more than a year, she asserted, was
because of a lack of available visitation sites during the
pandemic, a claim the Department disputed. E.T. also found it
difficult working with Isaiah’s prospective adoptive parent to
reschedule visits when necessary. E.T. talked with Isaiah on the
telephone regularly and insisted they shared a familial bond.
Isaiah referred to her as “mommy.”
The Department and Isaiah’s counsel urged the court to
deny E.T.’s section 388 petition. Both advised the court E.T. had
not visited Isaiah regularly; E.T. cancelled visits and then failed
to reschedule despite requests by the prospective adoptive parent
for E.T. to call back for that purpose. Although E.T. seemed to be
taking action to address her sobriety and anger issues, she had
not kept her word in the past; and Isaiah needed permanency
and stability. Moreover, Isaiah’s counsel argued, Isaiah’s
therapist observed Isaiah frequently destabilized after being with
E.T. and when she failed to keep her visitation dates.
Meanwhile, Isaiah was thriving in the care of his prospective
adoptive parent. Isaiah reported he wanted to remain with his
prospective adoptive parent but did not want to be adopted if that
meant losing contact with E.T.
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The court commended E.T. for her honesty with the court,
her insight into her alcohol problem and her recent efforts toward
addressing her anger management and sobriety; it also agreed
with E.T., despite the Department’s contrary argument, that
circumstances had changed since December 4, 2019 when it had
terminated her family reunification services. However, the court
found reinstatement of family reunification services was not in
Isaiah’s best interest for all the reasons the Department and
Isaiah’s counsel identified. Accordingly, the court denied the
section 388 petition.
Proceeding directly to the section 366.26 hearing and
incorporating the testimony from the section 388 hearing, the
court terminated parental rights after finding the beneficial
parent-child relationship exception to termination did not apply.
Although it was clear to the court that Isaiah was protective of
E.T. and loved her, the court found that any bond they shared did
not outweigh the benefits of stability and permanency that Isaiah
would receive with his prospective adoptive family: “[W]hen we
look at the mere possibility that mom might be able to do what
needs to be done versus the stability of the home that he’s in, I
have to come down on the side of stability.”
DISCUSSION
1. The Court Did Not Err in Denying E.T.’s Section 388
Petition
a. Governing law and standard of review
Section 388 provides for modification of juvenile court
orders when the moving party (1) presents new evidence or a
change of circumstance and (2) demonstrates modification of the
previous order is in the child’s best interest. (In re Jasmon O.
(1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th
8
295, 317; In re Y.M. (2012) 207 Cal.App.4th 892, 919; see Cal.
Rules of Court, rule 5.570(e); see also In re Zacharia D. (1993)
6 Cal.4th 435, 455 [“‘[s]ection 388 provides the “escape
mechanism” that . . . must be built into the process to allow the
court to consider new information’”].)
When, as here, a section 388 petition is filed after family
reunification services have been terminated, the juvenile court’s
overriding concern is the child’s best interest. (In re
Stephanie M., supra, 7 Cal.4th at p. 317.) The parent’s interests
in the care, custody and companionship of the child are no longer
paramount; and the focus shifts to the needs of the child for
permanency and stability. (Ibid.; In re Malick T. (2022)
73 Cal.App.5th 1109, 1123.) Nonetheless, a parent may rebut the
presumption that, once family reunification services have been
terminated, reunification is not in the best interest of the child by
showing that circumstances have changed and that the best
interest of the child warrants further reunification services.
(In re Marilyn H. (1993) 5 Cal.4th 295, 309; Stephanie M., at
p. 317.)
“[B]est interests is a complex idea” that requires
consideration of a variety of factors. (In re Kimberly F. (1997)
56 Cal.App.4th 519, 531; see In re Jacob P. (2007)
157 Cal.App.4th 819, 832-833.) In determining whether a
section 388 petitioner has made the requisite showing, the
juvenile court may consider the entire factual and procedural
history of the case, including factors such as the seriousness of
the reason leading to the child’s removal, the reason the problem
was not resolved, the passage of time since the child’s removal,
the relative strength of the bonds with the child, the nature of the
change of circumstance, and the reason the change was not made
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sooner. (In re Mickel O. (2011) 197 Cal.App.4th 586, 616; In re
Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447; In re Justice P.
(2004) 123 Cal.App.4th 181, 188-189.)
We review the court’s decision to grant or deny a
section 388 petition based on its best interest finding for abuse of
discretion and may disturb the exercise of that discretion only in
the rare case when the court has made an arbitrary or irrational
determination. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-
319; In re Malick T., supra, 73 Cal.App.5th at p. 1123; In re I.B.
(2020) 53 Cal.App.5th 133, 153.) We do not inquire whether
substantial evidence supports the order, nor do we reweigh the
evidence and substitute our judgment for that of the juvenile
court. (Stephanie M., at pp. 318-319.) We ask only whether the
juvenile court abused its discretion with respect to the order it
actually made. (In re M.H. (2018) 21 Cal.App.5th 1296, 1305.)
b. The court did not abuse its discretion in
concluding reinstatement of reunification services
was not in Isaiah’s best interest
E.T. contends the court abused its discretion in
determining reinstatement of family reunification services was
not in Isaiah’s best interest. She observes the reason for the
dependency was “a single incident” of corporal punishment that
she resorted to in a moment of panic when Isaiah ran away from
her in a public setting. That overly simplistic characterization of
events, however, ignores not only E.T.’s acknowledged alcohol
abuse, but also the troubling incidents that occurred within
months of Isaiah’s return to her custody, including her disregard
of court orders to keep Isaiah away from Frederick, which led to
Isaiah witnessing incidents of domestic violence; E.T.’s infliction
of additional physical abuse on Isaiah; and numerous other
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occasions when she was under the influence of alcohol when the
children were in her custody, as reported by both the children
and members of her wraparound team. To be sure, the court
found circumstances had changed since it terminated family
reunification services nearly one year earlier: E.T. had appeared
to gain insight into her alcoholism as a disease that required
treatment, Frederick was no longer in E.T.’s life, and E.T. had
expressed a renewed and sincere commitment to doing whatever
was necessary to regain custody of Isaiah. However, the court
determined that E.T.’s history, including the very recent, and
limited, nature of her efforts to address her alcoholism in the
more than one year since family reunification services were
terminated, while commendable, was too little, too late. The
potential for reunification if additional family reunification
services were ordered, the court found, was simply too
speculative to risk Isaiah’s stability. (See In re Marilyn H.,
supra, 5 Cal.4th at p. 310 [“[c]hildhood does not wait for the
parent to become adequate”].) E.T. disagrees with that finding,
but it was well within the court’s discretion.
2. The Court Did Not Err in Concluding the Beneficial
Parent-child Relationship Exception to Termination Did
Not Apply
a. Governing law and standard of review
The express purpose of a section 366.26 hearing is “to
provide stable, permanent homes” for dependent children.
(§ 366.26, subd. (b).) Once the court has decided to end parent-
child reunification services, the legislative preference is for
adoption. (§ 366.26, subd. (b)(1); In re S.B. (2009) 46 Cal.4th 529,
532 [“[i]f adoption is likely, the court is required to terminate
parental rights, unless specified circumstances compel a finding
that termination would be detrimental to the child”].)
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Section 366.26 requires the juvenile court to conduct a two-
part inquiry at the selection and implementation hearing. First,
it determines whether there is clear and convincing evidence the
child is likely to be adopted within a reasonable time.
(Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250;
In re D.M. (2012) 205 Cal.App.4th 283, 290.) Then, if the court
finds by clear and convincing evidence the child is likely to be
adopted, the statute mandates judicial termination of parental
rights unless the parent opposing termination can demonstrate
one of the enumerated statutory exceptions applies. (§ 366.26,
subd. (c)(1)(A) & (B); see In re Caden C. (2021) 11 Cal.5th
614, 630.)
One of the statutory exceptions to termination is contained
in section 366.26, subdivision (c)(1)(B)(i), which permits the court
to order some other permanent plan if “[t]he parents have
maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.” The
exception requires the parent to establish, by a preponderance of
the evidence, (1) the parent has maintained regular visitation
and contact with the child, “taking into account the extent of
visitation permitted”; (2) the child has a substantial, positive,
emotional attachment to the parent such that the child would
benefit from continuing the relationship; and (3) terminating the
relationship “would be detrimental to the child even when
balanced against the countervailing benefit of a new, adoptive
home.” (In re Caden C., supra, 11 Cal.5th at p. 636; see id. at
p. 630 [“[t]he language of this exception, along with its history
and place in the larger dependency scheme, show that the
exception applies in situations where a child cannot be in a
parent’s custody but where severing the child’s relationship with
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the parent, even when balanced against the benefits of a new
adoptive home, would be harmful for the child”].) When the
benefits of a stable, adoptive, permanent home outweigh the
harm the child would experience from the loss of a continued
parent-child relationship, the court should order adoption. (Id. at
p. 634.)
We review the juvenile court’s findings as to whether the
parent has maintained regular visitation and contact with the
child and the existence of a beneficial parental relationship for
substantial evidence. (In re Caden C., supra, 11 Cal.5th at
pp. 639-640; see In re R.V. (2015) 61 Cal.4th 181, 200-201
[“[t]here is, however, no single formulation of the substantial
evidence test for all its applications”; where a party fails to meet
its burden on an issue in the juvenile court, “the inquiry on
appeal is whether the weight and character of the evidence . . .
was such that the juvenile court could not reasonably reject it”].)
We review the third step—whether termination of parental rights
would be detrimental to the child due to the child’s relationship
with his or her parent—for abuse of discretion. (Caden C., at
p. 640.)
b. The court did not abuse its discretion in
concluding termination of parental rights would
not be detrimental to Isaiah
At the threshold, E.T. and the Department dispute whether
the juvenile court made any findings as to E.T.’s regular
visitation with Isaiah. E.T. insists she carried her burden to
demonstrate regular visitation with Isaiah within the unique
circumstances presented by her depleted financial resources and
the COVID-19 pandemic and by showing regular and consistent
telephone contact with Isaiah; and, she insists, the court made no
13
contrary findings at the hearing, despite the findings in the
minute order. (See In re T.G. (2020) 58 Cal.App.5th 275, 298,
fn. 20 [noting that minute orders in the case had expressed
findings that were never made at the hearing and that, on
occasion, were in direct conflict with the statements reported].)
The Department, in contrast, emphasizes the court’s express
findings during the section 388 hearing concerning a lack of
regular visitation as well as findings in the court’s minute order
from the section 366.26 hearing that E.T. did not demonstrate
regular visitation.
While the Department has the better argument, we need
not resolve the parties’ dispute on that question. Even if E.T. had
demonstrated regular visitation under the unique circumstances
of the COVID-19 pandemic, the court, carefully weighing E.T.’s
expressed commitment to maintaining her sobriety with the
assistance of a formal program and Isaiah’s statements that he
did not want to be adopted if it meant losing contact with E.T.
against evidence that Isaiah had been out of his mother’s custody
for nearly half his life and was thriving in the care of his
prospective adoptive parent, found the stability and permanency
of adoption far outweighed any benefit to him that might exist if
parental rights were preserved. That finding was well within the
court’s discretion.
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DISPOSITION
The juvenile court’s May 13, 2021 orders denying E.T.’s
section 388 petition and terminating parental rights are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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