In re L.L. CA2/5 ( 2024 )

Filed 2/13/24 In re L.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 L.L., a Person Coming B329878 c/w B330968
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct.
AND FAMILY SERVICES, No. 19CCJP01556A)
Plaintiff and Respondent,
v.
K.L.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Jean M. Nelson, Judge. Affirmed.
John Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and
Respondent.
Mother appeals from the orders denying her petition under
Welfare and Institutions Code section 3881 and terminating
parental rights to L.L. (minor).2 Mother contends the court
abused its discretion when it summarily denied her section 388
petition, and it erred in denying application of the parental
relationship exception to termination of parental rights under
section 366.26, subdivision (c)(1)(B)(i). Mother also contends that
the court erroneously failed to ensure that the Los Angeles
County Department of Children and Family Services
(Department) complied with requirements of the Indian Child
Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and related
California statutes (Welf. & Inst. Code, § 224 et seq.). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The details of the first portion of the dependency case
involving mother and minor, from March 2019 to November 2021,
are discussed in detail in a previous opinion of this court, in
which we affirmed an order sustaining a petition under section
387. (In re L.L. (March 30, 2023, B317886) [nonpub. opn.].) For
purposes of the current opinion, we limit our review of the facts
and procedural background to an overview of minor’s time in and
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 On October 6, 2023, this court ordered mother’s two
appeals—the June 7, 2023 appeal of the order summarily denying
mother’s section 388 petition and the July 17, 2023 appeal of the
order terminating of parental rights—consolidated.
2
out of mother’s custody, and mother’s participation in
reunification services.
Minor was initially detained from mother in March 2019,
when minor was six months old and mother was placed on an
involuntary psychiatric hold. The juvenile court sustained
petition allegations that mother was incapable of providing
regular care to minor based on her March 2019 psychiatric
hospitalization and her “mental and emotional problems
including visual and auditory hallucinations, Post-Traumatic
Stress Disorder, depression and anxiety,” and that mother’s
“criminal activities, alcohol and illicit drug use” placed minor at
risk of harm. At disposition, the court removed minor from
mother’s custody and ordered mother to participate in mental
health counseling and services, including meeting with a case
manager, therapist, and psychiatrist. Mother was to take all
prescribed psychotropic medications, and participate in a 12-step
drug and alcohol program and a parenting program.
Minor remained out of mother’s custody from March 2019
until May 2021. The juvenile court terminated reunification
services in November 2019, and mother was either not engaged
or minimally engaged in reunification services until June 2020.
After mother began complying with her case plan, the juvenile
court partially granted her section 388 petition in November
2020, reinstating reunification services. Minor was placed with
maternal family members (maternal grandfather, his wife and
their adult daughter) in January 2021. Mother’s visits were
liberalized, and in May 2021, she regained custody of minor with
juvenile court supervision.
Four months later, in September 2021, law enforcement
found mother in a hotel room in Fresno, suffering from delusions.
3
Minor was detained from mother’s custody and placed with a
different foster family. In November 2021, the juvenile court
sustained a section 387 petition, ordering minor to remain
removed from mother’s custody. The court ordered reunification
services for mother, including monitored visits. Mother appealed,
and we affirmed the court’s orders. (In re L.L., supra, B317886.)
In January 2022, the Department changed minor’s
placement to the home of her current caregivers and prospective
adoptive parents. The social worker reported difficulties
communicating with mother, whose erratic behavior and
communications created a situation where a visitation schedule
could not be established. The communication challenges
continued into July 2022, and the Department recommended
terminating reunification services and setting a permanency
planning hearing under section 366.26. In August and
September 2022, the Department was unable to contact mother.
Mother, who had not been in recent contact with her attorney,
did not appear at a contested review hearing in October 2022,
and the court ordered mother’s reunification services terminated.
In February 2023, mother made a remote appearance at
the section 366.26 hearing, and provided a new address. The
juvenile court continued the hearing, ordered mother to cooperate
with the Department’s efforts to provide notice, and ordered the
Department to provide mother with a written visitation schedule.
Mother agreed to weekly phone visits with minor. Minor was
well bonded with her prospective adoptive parents. In May 2023,
the Department reported that minor was not very engaged with
mother during the phone visits, and made sarcastic comments to
mother.
4
On May 16, 2023, mother filed a petition to change court
orders pursuant to section 388, seeking to reinstate the
reunification services the juvenile court had terminated in
October 2022. In her description of changed circumstances,
mother stated she had participated in programs to address her
mental health and was making progress at an inpatient program,
where she was receiving psychiatric care and individual
counseling. The program also provided daily medication
assistance and group therapy. Mother attached a January 27,
2023 letter from a New York City non-profit organization, stating
that mother was enrolled into case management services on
January 24, 2023 after referring herself for services. She also
attached an April 20, 2023 letter from Los Angeles Centers for
Alcohol and Drug Abuse, stating she had been enrolled in a crisis
residential treatment program since April 12, 2023, and was
receiving psychiatric care, individual substance use counseling,
individual therapy, and case management services. The letter
described mother’s program as “a short term residential program
focused on stabilization, medication management, and linking
the client to additional resources and long term treatment.”
Mother’s petition asserted that reinstating reunification services
was in minor’s best interests because mother had maintained
regular contact with minor, and increased contact was in minor’s
interest to further strengthen her bond with her mother, who was
“able and willing to apply her parental skills to take care of her
child.”
On May 17, 2023, mother’s counsel argued mother was
seeking a hearing on her section 388 petition. When the court
asked mother’s counsel about mother’s visits with minor,
mother’s counsel acknowledged that the visits had only been
5
telephonic, but argued that mother had been asking for in-person
visits and the Department had not set up in-person visits that
worked for mother’s schedule. The Department urged the court
to deny a hearing because mother’s petition did not make out a
prima facie case for relief. The Department argued that mother
had only recently enrolled in treatment, and a prior section 388
petition had already resulted in mother receiving additional
reunification services in November 2020. Minor’s counsel joined
in the Department’s argument, noting that mother had only
recently requested visits, and there was no bond between minor
and mother.
The juvenile court denied mother’s section 388 petition
without a hearing, explaining that mother had only shown
changing, not changed circumstances, and it was not in minor’s
best interests to further delay permanency where minor had been
in foster care for longer than her time with mother and that
minor showed no interest in speaking with mother.
At the section 366.26 hearing on July 17, 2023, mother
objected to termination of parental rights. The court found minor
was adoptable, and that no parental bond exception applied. The
court ordered parental rights to minor terminated and mother
filed a timely appeal.
DISCUSSION
A. Mother’s Section 388 Petition
Mother contends the court’s summary denial of her section
388 petition without an evidentiary hearing was an abuse of
discretion. We disagree.
6
On receipt of a section 388 petition, the court may either
summarily deny the petition or order a hearing. (In re Lesly G.
(2008) 162 Cal.App.4th 904, 912.) The court may summarily
deny the petition unless the petitioner makes a prima facie
showing in his or her favor. (Ibid.; see also In re Marilyn H.
(1993) 5 Cal.4th 295, 310.) We review the summary denial of a
section 388 petition for abuse of discretion. (In re G.B. (2014) 227
Cal.App.4th 1147, 1158.)
A petition to change or modify a juvenile court order under
section 388 must factually allege that there are (1) changed
circumstances or new evidence to justify the requested order, and
(2) that the requested order would serve the minors’ best
interests. (In re G.B., supra, 227 Cal.App.4th 1147, 1157; Cal.
Rules of Court, rule 5.570(d)(1) & (2).) “ ‘A prima facie case is
made if the allegations demonstrate that these two elements are
supported by probable cause. [Citations.] It is not made,
however, if the allegations would fail to sustain a favorable
decision even if they were found to be true at a hearing.
[Citations.] While the petition must be liberally construed in
favor of its sufficiency [citations], the allegations must
nonetheless describe specifically how the petition will advance
the child’s best interests.’ [Citation.] In determining whether the
petition makes the required showing, the court may consider the
entire factual and procedural history of the case. [Citation.]” (In
re K.L. (2016) 248 Cal.App.4th 52, 61–62; see also In re Anthony
W. (2001) 87 Cal.App.4th 246, 250 [“ ‘[S]pecific allegations
describing the evidence constituting the proffered changed
circumstances or new evidence’ is required”].)
When, as here, a section 388 petition is filed after family
reunification services have been terminated, the juvenile court’s
7
overriding concern is the child’s best interest. (In re Stephanie M.
(1994) 7 Cal.4th 295, 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.,
supra, 5 Cal.4th at p. 309; In re Stephanie M., supra, 7 Cal.4th 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, 530; 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 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.)
Here, the juvenile court did not abuse its discretion when it
summarily denied mother’s section 388 petition because the
petition did not make a prima facie case of changed
circumstances or minor’s best interests. Minor was only six
8
months old when this dependency case was initiated and mother
was involuntarily hospitalized for psychiatric problems. While
mother was able to reunify with minor for a short period of time
in May 2021, the child was removed again in September 2021,
after mother stopped taking her psychiatric medications and
became delusional. There is no evidence that mother re-engaged
in services again until January 2023, at which point minor was
over four years old and was well bonded with her current
caregivers, who wanted to adopt her.
While mother’s brief takes issue with the court’s
characterization of the nature and quality of mother’s telephonic
visits, the broader factual and procedural background establish
that reinstating reunification services, and thereby further
delaying permanency for minor, was not in minor’s best interests.
Having failed to establish a prima facie case on the best interests
prong, mother was not entitled to an evidentiary hearing on her
section 388 petition.
B. Parental Relationship Exception
Mother contends the juvenile court erred when it
determined that the parental relationship exception to adoption
did not apply. However, at the section 366.26 hearing, mother
made only a very general objection to the termination of her
parental rights, and never asserted the parental relationship
exception to adoption nor offered to prove that it applied.
Mother bore not just the burden of asserting the parental
relationship exception, but also the burden of proof to show that
it applied. “The application of any of the exceptions enumerated
in section 366.26, subdivision (c)(1) depends entirely on a detailed
9
analysis of the relevant facts by the juvenile court. [Citations.] If
a parent fails to raise one of the exceptions at the hearing, not
only does this deprive the juvenile court of the ability to evaluate
the critical facts and make the necessary findings, but it also
deprives this court of a sufficient factual record from which to
conclude whether the trial court’s determination is supported by
substantial evidence.” (In re Erik P. (2002) 104 Cal.App.4th 395,
402–403.) “The party claiming an exception to adoption has the
burden of proof to establish by a preponderance of evidence that
the exception applies.” (See In re Rachel M. (2003) 113
Cal.App.4th 1289, 1295; In re Melvin A. (2000) 82 Cal.App.4th
1243, 1252.) Having failed to raise the parental relationship
exception in the juvenile court, mother cannot demonstrate that
she met her burden of proof to establish that the exception
applied.
Moreover, mother’s argument on appeal focuses on the
juvenile court’s purported failure to make express factual
findings about mother’s visitation and a purported
misunderstanding of the underlying facts. We are unconvinced
by any of mother’s arguments, either because the juvenile court
was not required to make express findings (In re A.L. (2022) 73
Cal.App.5th 1131, 1156), or because mother has not shown that
any error was prejudicial (In re Brianna S. (2021) 60
Cal.App.5th 303, 315).
C. ICWA
Mother contends the Department failed to present
substantial evidence it asked L.L.’s alleged father or extended
paternal family members about possible Indian ancestry, as
10
required under ICWA and related California law. We disagree
that ICWA required the Department to engage in any ICWA
inquiry efforts with regard to the alleged father here.
The definition of a parent under ICWA expressly excludes
an “unwed father where paternity has not been acknowledged or
established.” (25 U.S.C. § 1903(9); see also In re Daniel M. (2003)
110 Cal.App.4th 703.) The alleged father in this case
acknowledged he had a one-night stand with mother, but told the
social worker he did not know if he was L.L.’s father, and he did
not want to participate in the court proceedings. Without any
acknowledgment of paternity, the Department had no duty to
conduct any inquiry under ICWA as to the alleged father or his
extended family.
11
DISPOSITION
The juvenile court’s May 17, 2023 order denying mother’s
petition under Welfare and Institutions Code section 388, and the
July 17, 2023 order terminating parental rights as to L.L. are
affirmed.
NOT TO BE PUBLISHED.
MOOR, Acting P. J.
We concur:
KIM, J.
LEE, J.
 Judge of the San Bernardino Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
12