In re A.A. CA2/6

Filed 11/20/13 In re A.A. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 SIX
In re A. A. JR., et al., a Person Coming 2d Juv. No. B247896
Under the Juvenile Court Law. (Super. Ct. Nos. J068463, J068464
J068475)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
M.Z., et al.,
Defendants and Appellants.
M. Z. (mother) appeals from an order terminating her parental rights to her
three children: Mikayla T. (eight years old), Alyssa A. (six years old), and Aaron A.,
Jr. (five years old). (Welf. & Inst. Code, § 366.26.)1 Aaron A., Sr., (father) appeals
from an order terminating his parental rights to his two children: Alyssa A. and Aaron
A., Jr. Mother argues that (1) the childrens' appointed counsel had a conflict of
1
Unless otherwise stated, all statutory references are to the Welfare and Institutions
Code.
interest that requires reversal, (2) the juvenile court abused its discretion in summarily
denying her section 388 petition seeking the reinstatement of reunification services;
and (3) the juvenile court erroneously failed to apply the beneficial relationship
exception to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) Father
makes no arguments of his own. He merely joins in mother's arguments. We affirm.
Factual and Procedural Background
In March 2011 father badly beat mother in the bedroom of their home. The
children were in the home at the time of the beating and saw mother's injuries. Mother
believed that, immediately prior to the beating, father "had a drug induced psychotic
episode." Father said that he had attacked mother because voices in his head told him
to attack her. "He denied that the voices he heard [had] ever directed him to inflict
harm on the children."2
In August 2011 someone reported the family to the Ventura County Human
Services Agency (respondent). Alyssa A. had leukemia and was hospitalized. Father
was in jail. Mother, who suffered from bipolar disorder and depression, said "that she
can't handle her children anymore."
Mother turned 26 years old in August 2011. She admitted being a
methamphetamine user since the age of 16 or 17, but claimed that she had last used the
drug in January or February 2011. She "was off and on before that." Mother said that
she had used methamphetamine while she was pregnant with Mikayla T. and that both
she and father had used drugs while the children were in their care.
At a hearing on September 14, 2011, the juvenile court ordered that Alyssa A.
be detained out of the home of her parents. When the court announced its ruling,
mother said, "Fucking bitch." Five days later, the court ordered the detention of
Mikayla T. and Aaron A., Jr. Alyssa A. was three, Mikayla T. was six, and Aaron A.,
Jr., was two years old.
2
According to the section 366.26 report, father "is now a resident in a State-run
psychiatric facility."
2
At jurisdictional-dispositional hearings in November 2011, the children were
declared dependents of the juvenile court and respondent was ordered to provide
family reunification services. On December 11, 2011, mother was arrested for being
under the influence of a controlled substance in violation of Health and Safety Code
section 11550. In January 2012 she entered "Prototypes," an inpatient treatment
program. Mother said that, a few days before her entry into the program, she had
smoked marijuana. The night before her entry, she had used methamphetamine. On
February 28, 2012, Aaron A., Jr., was placed with mother at Prototypes.
A status review report filed in March 2012 noted: "At this time [mother]
appears to be fully committed to sobriety and learning how to properly care for her
children." The report recommended that mother and father receive six more months of
family reunification services.
By the time of the filing of the March 2012 report, mother's conduct had
deteriorated. On March 15, 2012, while still residing at Prototypes, mother told
another resident that "she wanted to 'kick her ass.' " Four days later, mother said in
front of Aaron A., Jr., " 'I want to kick Aaron's . . . ass.' " On June 2, 2012, Prototypes
placed mother "in safe programming . . . for foul language and threatening another
resident at Prototypes." "Safe programming is when the client is separated from the
general population of Prototypes because of being a threat to others." Several
residents had come "forward with information that . . . mother had made derogatory
remarks and/or had threatened other residents and had used foul language in front of
the children residing at Prototypes." On June 7, 2012, mother was discharged from the
program. "The reasons for her discharge were [her] inability to follow through with
medical care of her son [Aaron A., Jr.], her continuous aggressive behavior, [and her]
combative behavior towards staff in the parenting center."
On July 17, 2012, the juvenile court sustained a supplemental petition to
remove Aaron A., Jr., from mother's custody. Respondent was ordered to provide
reunification services to mother and father. Aaron A., Jr., was placed together with his
siblings in the same foster home.
3
After her discharge from Prototypes, mother did not comply with her case plan.
On June 21, 2012, she enrolled in "A New Start for Moms" (ANSFM) as required by
the plan. But she tested positive for drugs on September 17, 2012, although her other
tests at ANSFM were negative. In September 2012 mother was absent from 12
sessions at ANSFM and told respondent that she was homeless. In September and
October 2012 mother failed to appear for four random drug tests to be performed by
respondent. According to the case plan, these missed tests are considered to be
positive tests. From July 11, 2012, through September 19, 2012, mother did not attend
three scheduled visits with her children.
In a status review report dated October 9, 2012, respondent concluded: "Due to
. . . mother's lack [of] housing, current homelessness, recent erratic behavior of
missing classes and visits with her children, skipped random drug tests, and lack of
sober support, there is not a good prognosis that the children will be returned to the
care of their mother." Pursuant to respondent's recommendation, the juvenile court
terminated reunification services and set the matter for a section 366.26 hearing.
Aaron A., Jr., "is thriving in his current placement." He "is especially close to his
foster father." Mikayla T. suffers from anxiety because of the domestic violence
between mother and father. She feels safe in the foster home and "was able to
demonstrate comfort and trust in the [foster] caregivers."
The section 366.26 report praises the foster parents, who want to adopt all of
the children: "The prospective adoptive parents . . . have consistently and selflessly
cared for these children. They have boldly advocated for Mikayla's mental health
needs, scrupulously cared for and managed Alyssa's delicate health care needs and
have been able to equally attend to the needs of Aaron Jr. who has now been in the
only stable home environment he has ever known in his short four years of life."
On January 22, 2013, mother filed a section 388 petition to reinstate
reunification services. On March 27, 2013, immediately prior to the section 366.26
hearing, the juvenile court denied the petition.
4
Several witnesses testified at the section 366.26 hearing. One of the witnesses
was Josephine Figueroa-Lemus, a social worker who supervised visits between mother
and the children. She testified as follows: The foster father drives the children to the
location of the visit. The children refer to him as "Dad" and appear to have a good
relationship with him. The children are happy to see mother. Mother "is affectionate"
with them, and they are affectionate with her. When the visit ends, the children are
excited to see their foster Dad and "typically run to [his] van." They do not appear to
be sad about leaving mother.
The childrens' foster and prospective adoptive mother, K.H., testified that both
she and her husband have "bonded" with Mikayla T. Mikayla T. calls K.H. "Mom"
and calls K.H.'s husband "Dad." K.H. enrolled Mikayla T. in "a specialized program
for children that have witnessed domestic violence." Aaron A., Jr., came to the foster
home after Mikayla T. When he arrived, Mikayla T. told him, " 'You're going to like it
here.' " K.H. invited mother to her home for lunch. The children were excited to see
her and were "fine" when she left. The children do not talk about mother between
visits with her. If the children become available for adoption, K.H. and her husband
are committed to adopting all three of them.
Mother's testimony was brief. She testified that the children are very excited to
see her when she visits them. They call her "Mommy."
At the conclusion of the section 366.26 hearing, the juvenile court terminated
parental rights. It selected adoption as the permanent plan for the children.
Conflict of Interest
Mother contends that the juvenile court committed reversible error by
appointing attorney Andrew Wolf to represent the children. Mother argues that Wolf
had a conflict of interest because he had previously represented mother in a
dependency proceeding when she was a minor.
Before he was appointed, Wolf disclosed the conflict in open court: "The case
will be mine if -- Mother and . . . Father would be required to waive conflict. I have
represented Mother in her dependency years ago. If there's no waiver of conflict, then
5
the case will go to Ms. Sanderson." Counsel for mother and counsel for father waived
the conflict in the presence of their clients. Thereafter, neither mother nor father
mentioned the conflict issue.
Because mother waived the conflict in the juvenile court, she is precluded from
raising the issue on appeal. " '[A] party is precluded from urging on appeal any point
not raised in the trial court. [Citation.] Any other rule would " ' "permit a party to
play fast and loose with the administration of justice by deliberately standing by
without making an objection of which he is aware and thereby permitting the
proceedings to go to a conclusion which he may acquiesce in, if favorable, and which
he may avoid, if not." ' [Citations.]" [Citation.]' [Citation.]" (In re Aaron B. (1996)
46 Cal.App.4th 843, 846.)
If mother were permitted to raise the conflict issue, the alleged error would not
be reversible because she has failed to show prejudice. (Vaughn v. Jonas (1948) 31
Cal.2d 586, 601 ["The burden is on the appellant in every case affirmatively to show
error and to show further that the error is prejudicial"].) We reject mother's contention
that the alleged error was structural, requiring automatic reversal. "A court should set
aside a judgment due to error in not appointing separate counsel for a child or relieving
conflicted counsel [in a dependency proceeding] only if it finds a reasonable
probability the outcome would have been different but for the error." (In re Celine
R. (2003) 31 Cal.4th 45, 60, italics added.)
Denial of Section 388 Petition
Mother argues that the juvenile court erred in summarily denying her section
388 petition seeking the reinstatement of reunification services. " 'Such petitions are
to be liberally construed in favor of granting a hearing to consider the parent's request.
[Citations.] The parent need only make a prima facie showing to trigger the right to
proceed by way of a full hearing. [Citation.]' [Citation.] 'There are two parts to the
prima facie showing: The parent must demonstrate (1) a genuine change of
circumstances or new evidence, and that (2) revoking the previous order would be in
the best interests of the children. [Citation.] If the liberally construed allegations of
6
the petition do not show changed circumstances such that the child's best interests will
be promoted by the proposed change of order, the dependency court need not order a
hearing. [Citation.] We review the juvenile court's summary denial of a section 388
petition for abuse of discretion.' [Citation.]" (In re C.J.W. (2007) 157 Cal.App.4th
1075, 1079.)
"Whether [m]other made a prima facie showing entitling her to a hearing
depends on the facts alleged in her petition, as well as the facts established as without
dispute by the court's own file . . . ." (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)
In support of the section 388 petition, mother declared: She obtained employment with
Carl's Jr. for a minimum of 25 hours per week. She completed a drug and alcohol
recovery program, a parenting program, and an anger management program. She
continues to "receive services . . . for [her] bipolar condition" and has been regularly
taking prescribed drugs "for approximately the past 3 months." She now has "a stable
place to live." She is "renting a large room in Oxnard in a house." Mother's
declaration concluded: "My children have a close relationship with each other as well
as a close relationship with me and it is important they all remain together and that
they be able to return to my care. During the period of time that
the children have been detained from my care they have each had at least 3 different
placements. If the court orders that reunification services be reinstituted I believe that
I will be able to provide the children with greater stability than they have had in the
past while they have been detained."
The juvenile court found "that there is a showing of changed circumstances."
Respondent does not dispute this finding. The juvenile court denied the petition
because mother had failed to make a prima facie showing that the reinstatement of
reunification services "would be in the best interest of the children because of the
stability that they [now] have."
The juvenile court did not abuse its discretion. Mother's conclusionary
allegation that she would be able to provide the children with greater stability is
insufficient. "[T]here was no showing whatsoever of how the best interests of these
7
young children would be served by depriving them of a permanent, stable home [with
the prospective adoptive parents] in exchange for an uncertain future. [Citations.]" (In
re C.J.W., supra, 157 Cal.App.4th at p. 1081.) Mother's declaration in support of the
petition is particularly inadequate in view of her long history of drug use with periods
of sobriety followed by relapses. "[R]elapses are all too common for a recovering
drug user." (In re Clifton B. (2000) 81 Cal.App.4th 415, 423.)3
Beneficial Relationship Exception
"By the time of a section 366.26 hearing, the parent's interest in reunification is
no longer an issue and the child's interest in a stable and permanent placement is
paramount. [Citations.] . . . The child has a compelling right 'to [have] a placement that
is stable, permanent, and that allows the caretaker to make a full emotional
commitment to the child.' [Citation.] Adoption is the Legislature's first choice
because it gives the child the best chance at such a commitment from a responsible
caretaker. [Citations .]" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
"If the court finds that a child may not be returned to his or her parent and is
likely to be adopted, it must select adoption as the permanent plan unless it finds that
termination of parental rights would be detrimental to the child under one of [several]
specified exceptions. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
During the section 366.26 hearing, mother's counsel told the court, "[T]he only
exception available at this point to my client is . . . the beneficial relationship
exception." This exception applies if "[t]he parents have maintained regular visitation
and contact with the child and the child would benefit from continuing the
relationship." (§ 336.26, subd. (c)(1)(B)(i).) The parents have the burden of
establishing this exception. (In re Derek W., supra, 73 Cal.App.4th at p. 826; In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
3
We do not consider respondent's contention that, even if the juvenile court had erred,
the error would be harmless because reunification services previously provided to
mother exceeded the statutory 18-month maximum.
8
" 'To trigger the application of the parental relationship exception, the parent
must show the parent-child relationship is sufficiently strong that the child would
suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one that
"promotes the well-being of the child to such a degree as to outweigh the well-being
the child would gain in a permanent home with new, adoptive parents." [Citation.]' "
(In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
Standard of Review
We review the juvenile court's determination under the substantial evidence
standard. (In re Marcelo B., supra, 209 Cal.App.4th at p. 642; In re Naomi P. (2005)
132 Cal.App.4th 808, 824; In re Derek W., supra, 73 Cal.App.4th at p. 827; contra, In
re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [reviewing court should apply abuse
of discretion standard].) We view the evidence in the light most favorable to
respondent, giving it the benefit of every reasonable inference and resolving all
conflicts in its favor. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) "It is not our
task to weigh conflicts and disputes in the evidence; that is the province of the trier of
fact." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) "The appellant
has the burden of showing the [juvenile court's] finding . . . is not supported by
substantial evidence. [Citation.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
"Substantial evidence is reasonable, credible evidence of solid value such that a
reasonable trier of fact could make the findings challenged . . . . [Citation.]" (In re
Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539.)
Substantial Evidence Supports the Juvenile Court's Finding
That Mother Failed to Establish the Second Prong of the Exception
The first prong of the beneficial relationship exception is that "[t]he parents
have maintained regular visitation and contact with the child." (§ 336.26, subd.
(c)(1)(B)(i).) We need not consider the first prong because substantial evidence
supports the juvenile court's finding that mother failed to establish the second prong:
"the child would benefit from continuing the relationship." (Ibid.) "Satisfying the
second prong requires the parent to prove that 'severing the natural parent-child
9
relationship would deprive the child of a substantial, positive emotional attachment
such that the child would be greatly harmed. [Citations.] A biological parent who has
failed to reunify with an adoptable child may not derail an adoption merely by
showing the child would derive some benefit from continuing a relationship
maintained during periods of visitation with the parent.' [Citation.] Evidence that a
parent has maintained ' "frequent and loving contact" is not sufficient to establish the
existence of a beneficial parental relationship.' [Citation.]" (In re Marcelo B., supra,
209 Cal.App.4th at p. 643.) [A] child should not be deprived of an adoptive parent
when the natural parent has maintained a relationship that may be beneficial to some
degree but does not meet the child's need for a parent." (In re Jasmine D., supra, 78
Cal.App.4th at p. 1350.)
Viewing the evidence in the light most favorable to respondent, we conclude
that a reasonable trier of fact could find that mother's contact with the children had not
continued or developed " 'a substantial, positive emotional attachment such that the
[children] would be greatly harmed' " if the relationship were terminated. (In re
Marcelo B., supra, 209 Cal.App.4th at p. 643.) When Aaron A., Jr., was living with
mother at Prototypes, he "refuse[d] to adhere to [her] directions" and "crie[d] out for
the foster family." The section 366.26 report notes that "the children have exhibited
signs of distress (anxiety and fear) following" contact with mother. Mother "utilized a
visit with the children to discipline [Mikayla T.] to the extent of excess." "[T]he entire
visit involved [mother's] repeated reminders of poor choices that
. . . Mikayla made." Alyssa A. "has . . . nightmares on the nights following visitation
with the mother and when the mother mentions her father." Aaron A., Jr., "has
exhibited nightmares and enuresis [bedwetting] following visits with the mother and
mention of his father."
Accordingly, "[t]his is not the extraordinary case where an adoption should
have been foreclosed by the exception provided in section 366.26, subdivision
(c)(1)(A) [now (c)(1)(B)(i) ]." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1352.)
"The juvenile court properly found there was no beneficial parental relationship
10
sufficient to overcome the statutory preference for adoption," especially since the
foster parents are committed to adopting all three children. (In re Marcelo B., supra,
209 Cal.App.4th at p. 644.)
11
Disposition
The judgment (order terminating parental rights and selecting adoption
as the permanent plan) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
12
Ellen Gay Conroy, Judge
Superior Court County of Ventura
______________________________
Marisa Coffey, under appointment by the Court of Appeal, for Mother
M. Z., Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal, for Father A.
A., Appellant.
Leroy Smith, County Counsel, County of Ventura and Alison L. Harris,
Assistant County Counsel, for Respondent.
13