In re A.C. CA4/2

Filed 6/19/14 In re A.C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.C., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E059633
Plaintiff and Respondent, (Super.Ct.No. RIJ116058)
v. OPINION
A.C. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Tamara L. Wagner,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and
Appellant A.C.
Brent D. Riggs, under appointment by the Court of Appeal, for Defendant and
Appellant B.P.
1
Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for
Plaintiff and Respondent.
No appearance for Minor.
Defendants and appellants B.P. (Mother) and A.C. (Father) appeal the
termination of their parental rights under Welfare and Institutions Code section 366.261
as to their minor daughter A.C. (Minor). Although they have filed independently, they
join in each other’s briefs. Mother contends the juvenile court erred in not awarding
custody to Father, in terminating parental rights without making a finding that there
were active efforts made to provide reunification services, and in failing to find a
parental bond existed between Mother and Minor. Father asserts that the denial of his
modification petition following his release from prison was an abuse of discretion.
Because we find the juvenile court’s rulings correct and supported by the record, we
affirm.
FACTUAL AND PROCEDURAL HISTORY
A. FAMILY HISTORY
Minor is the only child of both Mother and Father. They are not married, and
each has had children with other partners. Mother is a member of a federally
recognized Indian tribe. Mother’s other children, A.A.J., A.M.A. and D.A. have been
subject to dependency actions. Mother had previously tested positive for
methamphetamine when she delivered A.M.A. in 2005. In March 2008, a section 300
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
petition was filed on behalf of A.A.J., A.M.A., and D.A., because Mother and D.A., had
tested positive for methamphetamine. Mother had at that time a criminal record, which
included three drug-related misdemeanor convictions and felony convictions for
burglary and theft of public services.
Although a protective custody warrant was issued on March 13 for the children,
A.A.J. and A.M.A. could not be located and it was believed that their father had
absconded with them. At a Jurisdiction/Disposition hearing on April 7, D.A. was
placed in out-of-home care and Mother was given family reunification services. The
absent father was denied services.
In February 2009, while mother was receiving services, she delivered another
child, A.H.A. When Mother informed her social worker of the birth, a section 300
petition was opened on A.H.A. Although Mother was progressing in her drug abuse
treatment, she was residing in a home with adults with criminal records. On February
27, A.H.A. was removed from Mother’s custody. She was continued in reunification
services, and D.A. and A.H.A. were returned to her care on November 12. A.A.J. and
A.M.A. were not located and that matter was dismissed.2 Mother completed her case
plan and the dependency was terminated as to A.H.A. and D.A. on May 10, 2010.
Mother was the subject of a substantiated general neglect referral on January 23,
2011. It was reported that she was receiving public assistance from two counties for
children not in her care and that she tested positive for methamphetamine after
2It appeared that as of November 15, 2011, A.A.J. and A.M.A. were residing
with M.A., their paternal grandmother (PGM).
3
unsuccessfully trying to dilute her test sample. Subsequently, Mother was arrested on
felony possession charges on November 17, 2011, which resulted in a misdemeanor
conviction. As part of her probation, she was to provide her probation officer with
proof of enrollment into a substance abuse program by December 23, 2011. Mother had
violated probation for a prior conviction in 2010 by failing a drug test, but had been
diverted to a drug abuse program for pregnant women.
Father was involved in a dependency action concerning three children he had
with another partner. On September 23, 2004, a section 300 petition was filed
following an incident of domestic violence that was witnessed by his children. In
addition, it was alleged that their mother had tested positive for methamphetamine and
was not accepting treatment. The children were placed with their mother, and Father
was given family maintenance and reunification services. Father’s participation was
unsatisfactory and he subsequently became incarcerated. The dependency terminated
on May 11, 2006, with custody returned to the children’s mother.
Father had felony convictions for domestic violence and dissuading a witness.
He also had two felony convictions for possession of drugs. One was in 2004, and the
most recent was entered on July 30, 2010.
B. MINOR
Minor was born in September 2011. A general neglect referral was made on
November 9 following Mother’s positive test for methamphetamine and her admission
that she been using when she was pregnant. Mother admitted current drug use, but
considered herself a “casual” methamphetamine user. The investigating social worker
4
considered Mother’s answers evasive and less than honest. Mother admitted that she
had recently been in prison, but claimed she didn’t know why or when. She stated that
Father was in prison “because of drugs,” and would be out in two or three years.
The social worker observed that Minor had the movements and physical
characteristics of drug-exposed infants. It appeared that Minor was accustomed to
being fed via breast and not by bottle. She was taken to Riverside County Regional
Medical Center where it was determined the infant was experiencing drug withdrawal
symptoms.
Defendant and respondent Riverside County Department of Public Social
Services (the Department) filed a section 300 petition on November 14, which was
granted on November 15. Minor was initially placed in a foster home and shortly
afterward moved to the care of PGM.
A Jurisdiction/Disposition report was filed on December 29, 2011. The report
disclosed that Father told a social worker he planned to overcome his drug habit and he
wanted to care for Minor upon his release from prison. He said he was wait-listed for
drug treatment in prison; he had never before been eligible for substance abuse
treatments because this was his first drug-related conviction. He told the social worker
he had previously taken parenting, Alcoholics Anonymous, and gang diversion classes.
When interviewed for the report, Mother denied ever breastfeeding Minor. PGM
reported that Mother telephoned to set up a visit with the children for the next day, but
did not show. PGM told the social worker Father had “‘struggled’” with
methamphetamine use. She admitted she did not know much about Mother and that
5
Mother was not very forthcoming with her, but that Father called her weekly from
prison. She stated Mother was always very attentive and appropriate with Minor and
that Mother seemed to have bonded to the child. She reported Mother had a number of
pleasant visits with Minor, including one on Christmas Eve, and that Mother was
saddened when told how well Minor had bonded with her paternal grandparents.
The foster parents who had cared for Minor before her placement with PGM
reported that they thought Mother had been denied visitation because she had made no
attempt to arrange a visit.
The report included a statement from a TANF (Temporary Assistance for Needy
Families) official who stated that Mother had requested shelter, cash, and hotel voucher
aid, but she was now barred from receiving hotel vouchers because she had twice been
ejected by police due to her violating the terms of housing by lodging multiple unrelated
people in her room and by having “multiple people” coming and going late at night. In
addition, Mother did not comply with the program’s drug testing requirements.
In a section describing the services provided to the family, the report noted
Mother had previously received services as part of the 2006 dependency. The social
worker reported a meeting with Mother in December 2011 to discuss available services.
At that meeting, Mother stated she was going to enroll in a substance abuse program as
part of her probation. She agreed to take a drug test, but failed to test, and did not
provide proof of enrollment in an abuse program. Father was likewise sent information
regarding services, but, given the length of his prison term and the child’s age, he was
told that adoption or legal guardianship was the expected plan. He expressed
6
disappointment and said he did not wish to give up his parental rights. Mother,
likewise, objected to the loss of her parental rights.
On January 4, 2012, the juvenile court sustained the petition, declared Minor a
dependent, and ordered her removed from her parents’ custody. Services to Mother and
Father were bypassed pursuant to section 361.5, subdivisions (b)(13) and (e)(1),
respectively.
The Seminole Nation of Oklahoma was contacted on February 27, 2012, to
register Minor as a member prior to her adoption. Minor was registered as a tribal
member on September 13, 2012, and enrolled on October 11, 2012. The Seminole
Nation assented on October 16, 2012, to the planned adoption by PGM. While matters
were on hold for resolution of the tribal issues, Mother was arrested for felony theft on
July 23, 2012. During her time in jail, Mother’s twice-weekly visits with Minor were
discontinued, and she had only two visits with her thereafter. Father was released from
jail on August 8, 2013. The Seminole Nation denied a request for tribal customary
adoption on March 28, 2013, removing the hold on further proceedings.
C. PROCEEDINGS
In advance of the September 13, 2013, section 366.26 Selection and
Implementation hearing, a number of documents were filed. The Department filed a
Court Addendum report on December 28, 2012, which included an expert declaration
by Phillip Powers (Powers). Powers holds a Masters degree in Psychological
counseling, and was a former CPS social worker who worked 12 years for the Indian
Specialty Unit formed by San Diego County for the implementation of the Indian Child
7
Welfare Act (ICWA). He was also a member of the Cherokee Nation of Oklahoma. He
reviewed the case files and interviewed persons connected with the case to draft his
declaration, although both Mother and Father were unavailable to him. He noted
Mother failed to show up for drug testing, and she had failed to show proof of
enrollment in a drug abuse program as required by her 2011 possession conviction. In
his expert opinion, Minor’s return to either parent would cause danger of severe
physical and emotional harm. He also declared, “Active Efforts to prevent the breakup
of an Indian family were made by [the Department] in this case.”
The Department filed a subsequent Postpermanency Status Review report on
March 21, 2013, which incorporated those views. The report stated that Minor was at
“a very high risk of abuse or neglect” if the dependency were terminated and that
“neither parent has addressed the issues that brought the child to the Court’s attention.”
Following the denial of the request for tribal customary adoption, the Department filed
further Court Addendum reports on July 3, 2013, and September 3, 2013, reiterating the
risk to Minor, the appropriateness of her adoption by PGM, and the necessity of
terminating parental rights.
Father filed a JV-180 Request to Change Court Order on September 6, 2013,
which asked the court to place Minor with him and terminate the dependency, place her
with him on family maintenance, or provide him with family reunification services.
Father stated he had been released from prison, had signed up for three reformative
classes, and had been clean and sober over two years. In addition, he cited that he had a
strong bond with Minor, as he called her regularly, she recognized his voice, and called
8
him “Daddy.” He has had “good” supervised visits with her where she was excited to
see him and gives him hugs.
The request was heard at the September 9, 2013, section 366.26 hearing; the
court found that active efforts were made and were unsuccessful, that adoption was
likely, and that a basis existed for termination of parental rights. The court then ordered
Mother’s and Father’s parental rights terminated and ordered Minor referred for
adoption, with the current caretakers to be given preference. Regarding Father’s
petition, the court found his “circumstances are changing” but it could not “make a
finding of changed circumstances.” Father had requested services at the hearing on
January 4, 2012, on the basis that he was determined to change his life and desired to
participate in services. The court again denied services. Lastly, the court accepted a
stipulation from the parties that expert witness Powers’s declaration be accepted in lieu
of testimony.
DISCUSSION
Mother argues that the court should have granted custody to Father because there
was not proof beyond a reasonable doubt that doing so would have harmed Minor, that
there were no active efforts to reunify the family, and that there was a parental bond
between Mother and Minor. Father asserts it was an abuse of discretion to deny his JV-
180 petition. These contentions are unpersuasive; we affirm.
A. CUSTODY
Mother questions the court’s finding that returning Minor to Father’s custody
would expose Minor to risk of serious harm.
9
Termination of parental rights may not be ordered “in the absence of a
determination, supported by evidence beyond a reasonable doubt, including testimony
of qualified expert witnesses, that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or physical damage to the child.”
(25 U.S.C.A. § 1912(f).) Likewise, Welfare and Institutions Code section 366.26,
subdivision (c)(2)(B)(ii) requires “a determination at the hearing terminating parental
rights, supported by evidence beyond a reasonable doubt, including testimony of one or
more ‘qualified expert witnesses’ as defined in Section 224.6, that the continued
custody of the child by the parent is likely to result in serious emotional or physical
damage to the child.” Under Welfare and Institutions Code section 224.6, such
qualified experts include “a social worker, sociologist, physician, psychologist,
traditional tribal therapist and healer, tribal spiritual leader, tribal historian, or tribal
elder, provided the individual is not an employee of the person or agency
recommending foster care placement or termination of parental rights.”
We review the court’s ICWA detriment finding for supporting evidence that is
reasonable, credible, and of solid value, and uphold the juvenile court’s finding unless it
can be said that no rational fact finder could reach the same conclusion. (In re Barbara
R. (2006) 137 Cal.App.4th 941, 951.) Under this standard, we do not pass on the
credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the
evidence. Instead, we draw all reasonable inferences in support of the findings, view
the record favorably to the juvenile court’s order and affirm the order even if there is
other evidence to the contrary. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The
10
appellant has the burden of showing there is no evidence of a sufficiently substantial
nature to support the court’s finding. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
Mother asserts the sole harm to which parental custody exposed Minor was the
risk that she would be breastfed milk that was tainted by methamphetamine. Moving
Minor to Father’s care would have eliminated that risk, she argues, and Father would
likely have put Minor into the same care where the Department eventually placed her.
Mother states there was insufficient evidence for a finding beyond a reasonable doubt
that Father’s custody exposed Minor to any risk. Further, there was no finding by the
court of such risk of harm.
Mother’s argument limits the evidence regarding risk of harm to the statements
by a Department social worker regarding Minor’s withdrawal symptoms. The social
worker’s testimony does not stand alone. The specific charge is corroborated by
Mother’s admission of drug use. More broadly, the record itself discloses an extensive
history of drug abuse, criminal activity, and reckless behavior by Mother. Since Mother
is not arguing for her own custody of Minor, the court will consider whether Father’s
custody entailed any risk.
The record discloses that Father was previously part of a dependency action for
three children he had with another partner. It was alleged there was drug use in the
home and that domestic violence had taken place in front of the children. Father did not
satisfactorily participate in the proffered maintenance and reunification services, and
was incarcerated. Although Father’s imprisonment records do not appear to be part of
the record before this court, it is reasonable to assume he was incarcerated in connection
11
with the drug possession and domestic violence felonies to which he pled guilty in
2004. At the time of the institution of the dependency action, Father was in prison for
another drug possession felony and admittedly had been using methamphetamine.
Mother assumes Father would have made a safe placement for Minor had she been put
in his indirect care, but the record of his judgment is not reassuring.
Further, the court took testimony from Powers, an expert qualified under
multiple aspects of section 224.6. He conducted a thorough assessment, including
direct interviews of persons knowledgeable about the matter, and found that Minor’s
return to either parent would cause danger of severe physical and emotional harm. This
expert opinion, combined with the facts in the record concerning Father’s felony
convictions, drug use, and prior family issues, is sufficient evidence to justify the
court’s finding beyond a reasonable doubt that the continued custody of Minor by
Father was likely to result in serious emotional or physical damage to the child.
Mother asserts no such finding was made and that we may not infer one. (In re
Abram L. (2013) 219 Cal.App.4th 452, 462-463.) The court did find, “[a] sufficient
basis for termination of parental rights exists,” which must mean that the court found a
risk of serious harm. That finding, and the record before this court, is a basis for us to
imply an explicit finding. There is no bar to such a finding; Abram L. holds only that
such findings may not be presumed when it appears from the record that the juvenile
court failed to consider the correct statute. (Id. at p. 462.) As noted in that case, we
may imply such a finding when, as here, the evidence is clear and substantial. (Id. at p.
463, fn. 5; In re Corinna G (1989) 213 Cal.App.3d 73, 83-84.)
12
B. ACTIVE EFFORTS
Mother argues the denial of reunification services to her and Father violates the
requirement under ICWA that active efforts be made to prevent the breakup of an Indian
family.
“Whether active efforts were made is a mixed question of law and fact.
[Citation.] We can determine what services were provided by reference to the record.
Whether those services constituted ‘active efforts’ within the meaning of section 361.7
is a question of law which we decide independently. [Citation.]” (In re K.B. (2009) 173
Cal.App.4th 1275, 1286 (K.B.).) As noted above, we review ICWA findings for
supporting evidence that is reasonable, credible, and of solid value.
An agency seeking termination of parental rights to an Indian child “shall satisfy
the court that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.” (25 U.S.C. § 1912, subd. (d); see also
§§ 366.26, subd. (c)(2)(B)(i), 361.7.) The phrase “active efforts” means that “timely
and affirmative steps be taken to accomplish the goal which Congress has set: to avoid
the breakup of Indian families whenever possible by providing services designed to
remedy problems which might lead to severance of the parent-child relationship.”
(Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009, 1016 (Letitia V.) italics
added; see also K.B., supra, 173 Cal.App.4th at p. 1284.)
13
There is no established formula for distinguishing between active and passive
efforts. (K.B., supra, 173 Cal.App.4th at p. 1287.) “However, the following is a useful
guideline: ‘Passive efforts are where a plan is drawn up and the client must develop his
or her own resources towards bringing it to fruition. Active efforts . . . [are] where the
state caseworker takes the client through the steps of the plan rather than requiring that
the plan be performed on its own. For instance, rather than requiring that a client find a
job, acquire new housing, and terminate a relationship with what is perceived to be a
boyfriend who is a bad influence, [ICWA] would require that the caseworker help the
client develop job and parenting skills necessary to retain custody of her child.’
[Citation.]” (Id. at p. 1287.) “Although the phrase ‘active efforts’ is not defined by
either federal or state statute, California courts have construed ‘active efforts’ to be
‘essentially equivalent to reasonable efforts to provide or offer reunification services in
a non-ICWA case . . . .’ [Citations.]” (In re C.B. (2010) 190 Cal.App.4th 102, 134.)
The law requires a reasonable effort be made to reunify an Indian family whenever it is
possible that such efforts will succeed.
Both Mother and Father were contacted by social workers at the beginning of the
dependency action. As an initial matter, Mother met with a social worker who provided
a family assistance package to her and reviewed it with her. Further steps were not
taken with Mother because she made herself difficult to contact, failed to comply with
drug testing requirements and continued drug use, and was arrested on felony theft
charges. Father was interviewed in custody, but was informed he would not be offered
reunification services because of the child’s age and the length of his imprisonment.
14
The social workers had reason to suspect Mother and Father were less than honest and
forthcoming with them. Father’s imprisonment and Mother’s subsequent confinement
put an effective end to the efforts to reunify the family.
Both Mother and Father were denied reunification services at the 2012
Jurisdictional hearing. Mother’s services were denied under section 361.5, subdivision
(b)(13), which states services may be denied where “the parent or guardian of the child
has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted
prior court-ordered treatment for this problem during a three-year period immediately
prior to the filing of the petition that brought that child to the court’s attention, or has
failed or refused to comply with a program of drug or alcohol treatment described in the
case plan required by Section 358.1 on at least two prior occasions, even though the
programs identified were available and accessible.” Father was denied services under
section 361.5, subdivision (e)(1), which allows denial of services to incarcerated parents
after consideration of “the age of the child, the degree of parent-child bonding, the
length of the sentence, the length and nature of the treatment, the nature of the crime or
illness, the degree of detriment to the child if services are not offered and, for children
10 years of age or older, the child’s attitude toward the implementation of family
reunification services, the likelihood of the parent’s discharge from incarceration,
institutionalization, or detention within the reunification time limitations described in
subdivision (a), and any other appropriate factors.” Thereafter, at the Selection and
Implementation hearing, the juvenile court, following the lead of the opinion of the
expert witness, found sufficient active efforts had been made to reunify the family.
15
At worst, Mother argues, she failed during the relevant period to complete a
criminal-court-ordered drug program for pregnant women and failed to provide proof
that she enrolled in a substance abuse education program. Father, she contends, was
denied services solely because he was imprisoned.
Mother argues that active efforts to provide services must be made even where
the prospect of successful reunification is dim. She cites In re Michael G (1998) 63
Cal.App.4th 700, as authority requiring that services be provided unless they would be
harmful to the minor. There, the mother was described as “‘disturbed (and disturbing)’”
and the father as a “‘low intensity sociopath.’” (Id. at pp. 705-706.) The parents
received “a plethora of services” that “proved markedly unsuccessful” until transfer of
the case to the Navajo Nation caused services to end when the court lost track of the
parents. (Id. at pp. 714-715.) The court’s finding of “active efforts” was reversed
because of the sudden termination of the reunification services. “[T]he 12-month
statutory reunification period is not reduced simply because parents are not expected to
comply or succeed.” (Ibid.)
Further, section 361.7 requires provision of services to Indian families even
where reunification services could be denied under section 361.5. Cases to the contrary,
Mother argues, must be limited to their facts. (K.B., supra, 173 Cal.App.4th at p. 1279
[father was a child molester], Letitia V., supra, 81 Cal.App.4th at p. 1015 [active efforts
attempted before mother’s relapse].) Unless the provision of those services were an idle
act, she contends, they are required under the law. Mother’s reliance on the cited cases
is misplaced.
16
The parents in In re Michael G., supra, were performing poorly when the transfer
of the case caused their services to stop abruptly. The facts that (1) the parents were not
progressing, and (2) that their personalities made them unlikely to benefit was held to be
insufficient reason to presume they did not have a right to complete the course of
services that had been set for them. Both K.B. and Letitia V. countenanced the denial of
services to an Indian family under similar circumstances. K.B.’s facts are not similar to
the instant case, but Letitia V. has similarities. The mother there had a drug addiction,
used drugs during pregnancy, and had been frequently in dependency court with other
siblings because of drug use. The mother had been ordered to participate in a drug
treatment plan, Narcotics Anonymous, parenting classes, and counseling, and was
encouraged by her social worker to do so, but failed to follow through and ended her
interaction with child services when she was jailed on drug charges. (Letitia V., supra,
81 Cal.App.4th at pp. 1011-1014.) Mother’s history is similar.
Mother had taken drugs through three pregnancies. She does not have custody of
any of Minor’s siblings. She has twice before been through dependency court because
her drug addiction was more compelling than caring for her children. Although Mother
successfully resolved one dependency through treatment, she relapsed into drug use less
than a year later despite being responsible for the care of two infants. She violated her
probation on a criminal charge by failing a drug test and was expelled from programs
for refusing to test. She had a significant criminal history, was dishonest, and could not
refrain from further criminal activity during the pendency of this action. Denial of
reunification services is not a matter of prejudging her willingness or ability to comply
17
with the program; it is a matter of recognizing the futility of trying again. As noted in
Letitia V, “the court cannot be faulted under either state or federal law for choosing not
to expend resources which merely duplicate efforts that have already been made.”
(Letitia V., supra, 81 Cal.App.4th at p. 1018.) Similarly, father’s imprisonment was not
the sole factor in denying him services. His previous failure to benefit from or complete
services, his lack of candor, his violent criminal record, and the same destructive habit
of drug abuse supports the court’s view that it would be a pointless gesture to attempt to
unify the family.
By meeting with the Mother and informing her of the services available, the
Department began active efforts to provide reunification services to her. Mother’s prior
history and her current inability or unwillingness to conform to the expectations set
before her, which culminated in another arrest, made further provision of services
pointless. Similarly, Father’s incarceration and his record in criminal and dependency
cases justified the juvenile court deciding to deny services.
C. PARENTAL BOND
Mother asserts that the court erred by not applying the parental bond exception to
bar termination of her parental rights because of the strong bond that existed between
her and Minor.
18
On appeal, we review the order terminating parental rights under a substantial
evidence standard. (In re Jasmon O. (1994) 8 Cal.4th 398, 422-423.)3 In doing so, we
do not reweigh the evidence or exercise our independent judgment. Rather, we review
the evidence in the light most favorable to the judgment and decide if the evidence in
support of the judgment is reasonable, credible and of solid value such that a reasonable
trier of fact could find that termination of parental rights is appropriate based on clear
and convincing evidence. (Ibid.) Mother bears the burden of proving the beneficial
relationship exception applies. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-
1373.)
The beneficial parental relationship exception applies when “[t]he 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).) “[T]he 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.]’ [Citation.] The parent must show he or she occupies a parental role in
the child’s life, resulting in a significant, positive, emotional attachment from child to
parent. [Citations.]” (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954, quoting In re
Autumn H (1994) 27 Cal.App.4th 567, 575.) “In other words, for the exception to
apply, the emotional attachment between the child and parent must be that of parent and
3
Some courts have applied an abuse of discretion standard. (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1351.) Under either standard Mother’s contention fails.
19
child rather than one of being a friendly visitor or friendly nonparent relative, such as an
aunt. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
In support of her claim, Mother notes that, although she only had custody of
Minor for the first two years of Minor’s life, Mother visited her frequently and
mothered her during their regular twice-weekly visits, until Mother was again
incarcerated in July of 2012. In response to the Department’s rejoinder that Minor had
bonded to PGM, Mother rejoins that there is no evidence in the record Minor was not
bonded to Mother. That is not a sufficient response.
Minor was two months old when Mother’s drug use required that Minor be
placed in foster care. Mother visited Minor sporadically thereafter, perhaps achieving
twice-weekly visits over a 10-month period. Since Mother’s latest arrest, she has
apparently seen Minor twice in the following 18 months. On this basis, Mother
contends that she has carried her burden of proof. She has not. Mother may be bonded
to the child, but that is not the test. Mother must show that Minor thinks of her as a
parent and that she has acted as a parent to her. Finding no evidence in the record that
Minor has an emotional attachment to Mother, we affirm the court’s decision not to
apply the parental bond exception.
D. CHANGE OF CIRCUMSTANCES
Father asserts the juvenile court abused its discretion when it denied his section
388 petition to modify the order terminating his parental rights due to a change in
circumstance.
20
Section 388 provides that the juvenile court may, in its discretion, modify a prior
order on the request of any interested person, if the court finds both (1) new evidence or
a material change in circumstances justifying modification of the order, and (2) that the
requested modification would be in the child’s best interests. (§ 388, subd. (a).) A
person filing a section 388 petition has the burden to show by a preponderance of the
evidence that there is new evidence or there are changed circumstances that make
modification of a prior order in the best interests of the child. (In re Stephanie M.
(1994) 7 Cal.4th 295, 317.)
When a party having the burden of proof on an issue challenges a finding that
reflects the trier of fact’s rejection of that party’s evidence, “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 [the] finding.’ [Citation.]” (In re I.W. (2009) 180 Cal.App.4th
1517, 1528, italics added.) Stated another way, Father’s challenge to the court’s finding
that no change in circumstance had occurred amounts to a contention that the
“undisputed facts lead to only one conclusion.” (Id. at p. 1529; see also In re A.A.
(2012) 203 Cal.App.4th 597, 612.)
As noted above, Father’s prior history represented a major factor in considering
whether to offer him reunification services while in prison. His incarcerated status was
not the sole factor in denying services; as both Mother and Father noted, it could not be,
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as there is no rule that prisoners must lose custody of their children. Consequently, his
release from prison did not solve all of the infirmities he suffered in seeking to retain
custody. Father had a violent criminal record, had failed to comply with a prior family
reunification plan, and he had a serious drug problem.
Father can do nothing about his record except to not add to it. Likewise, he
cannot undo his previous family reunification failure. He can, however, take positive
steps now, and that is what he states he has done. He claims he has been clean and
sober for a significant period of time and has nearly completed treatment and a
parenting class. Further, Father argues it is significant that he has established some
degree of bonding with Minor. Minor recognizes his voice, calls him “Daddy,” and
they have pleasant interactions. Although the inception of a parental bond is a good
thing, these facts were before the juvenile court and do not establish changed
circumstances. Father has demonstrated positive intent and has begun to make positive
changes in his life.
The juvenile court recognized Father’s intent and acknowledged his
circumstances were changing. The juvenile court did not find that sufficient, nor can
we. The changes must be considered in light of a long-term addiction problem and the
fact Father has been out of prison less than eight months. When asked in 2011 about his
plans for treatment, Father stated he had not taken treatment because he had not
previously been arrested on drug related charges. That statement must be weighed
against Father’s current profession of intent. He states he has nearly completed some
programs and will continue to stay sober. While encouraging, these assurances do not
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amount to unimpeached facts that lead to only one conclusion. As noted by Minor’s
counsel at the hearing, the petition is premature. The juvenile court’s decision not to
grant Father’s section 388 petition was not an abuse of discretion.
DISPOSITION
The judgments as to Mother and Father are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RICHLI
Acting P. J.
KING
J.
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