In re Marjorie E. CA2/2

Filed 12/10/20 In re Marjorie E. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re Marjorie E., a Person B302052
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. DK18837A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
HECTOR R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Jean M. Nelson, Judge. Affirmed.
James S. Lochead for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Jacklyn K. Louie, Principal Deputy County
Counsel, for Plaintiff and Respondent, Los Angeles County
Department of Children and Family Services.
******
Nearly three years after asserting dependency jurisdiction
over now-five-year-old Marjorie E., the juvenile court (1) denied a
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petition under Welfare and Institutions Code section 388 filed by
Hector R. (father) to reinstate reunification services, and (2)
terminated father’s parental rights over Marjorie E. Although
father’s opening brief on appeal is so lacking in content as to
waive any errors on appeal, our review of these two orders
reflects no error in any event. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Marjorie was born in May 2015 to father and Maria E.
(mother).
On July 17, 2016, father punched mother in the face and
body 20 to 25 times. Father’s barrage of punches started while
mother was still holding Marjorie in her arms. Both parents had
been drinking wine.
II. Procedural Background
A. Assertion of dependency jurisdiction
On August 17, 2016, the Los Angeles County Department
of Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
Marjorie. In the operative First Amended Petition filed on
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
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November 21, 2016, the Department alleged that dependency
jurisdiction was appropriate because (1) the history of domestic
violence between mother and father placed Marjorie at
substantial risk of serious physical harm (rendering dependency
jurisdiction appropriate under section 300, subdivisions (a) and
(b)(1)), (2) father’s and mother’s histories of substance abuse did
the same (rendering dependency jurisdiction appropriate under
section 300, subdivision (b)(1)).
On December 21, 2016, the juvenile court sustained all of
the allegations in the First Amended Petition, removed Marjorie
from her parents’ custody, and ordered reunification services for
each of the parents.
B. Reunification period
The Department offered father reunification services for
the next 21 months. During that time, father had regular
monitored visits with Marjorie on a weekly basis, interspersed
with some periods where father would not visit. Although the
juvenile court in August 2017 authorized brief unmonitored
visits, father did not avail himself of those visits. During his
monitored visits, he and Marjorie were affectionate with one
another and displayed a bond, although Marjorie thought of
father as a “visitor” and called him by his first name. From
February 2018 onward, Marjorie was living with Mr. and Mrs. S.,
with whom she developed a strong bond.
Also during the reunification period, father completed
portions of his case plan—chiefly, a 16-week parenting class and
a 52-week domestic violence course. He did not complete the
2 There was a delay in the proceedings because mother
absconded with Marjorie and was not located until October 31,
2016.
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individual counseling portion. Just a month before finishing his
52-week domestic violence course, father in February 2018
punched mother several times in the face, threw her to the
ground and kicked her. Father pled no contest to a misdemeanor
count of battery (Pen. Code, § 242), was sentenced to three years
of summary probation and 64 days of jail, and was enjoined from
contacting mother for three years. On August 15, 2018, the
juvenile court terminated reunification services for father after
finding him only in “partial” compliance with his case plan.
C. Father’s section 388 motion
On March 29, 2019, father filed a motion under section 388
asking the court to reinstate reunification services and place
Marjorie back in his custody on the ground that he had finished
his individual counseling requirement and was voluntarily
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participating in further individual counseling. The trial court
set the matter for a contested hearing, and the hearing occurred
over four days in August and September 2019. Father testified.
Among other things, he denied engaging in any domestic violence
with mother, acknowledging only that he may have “possibly”
“punched” mother “without realizing [it].” Father also denied
being subject to the previously issued criminal protective order.
The juvenile court found father “not credible,” and that father’s
steadfast refusal to take responsibility for his past domestic
violence meant that father continued to pose a risk of danger to
Marjorie and that reinstated reunification services was not in
Marjorie’s best interests.
3 This was father’s second section 388 motion. He filed the
first motion in August 2018, which the juvenile court summarily
denied a few days later. That motion is not before us.
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D. Termination of parental rights
On September 13, 2019, which was the same day the
juvenile court denied father’s section 388 motion, the court also
terminated his parental rights over Marjorie. The court found
Marjorie to be adoptable, and rejected father’s argument that the
beneficial parent-child bond exception applied because father had
no “parental [role]” in Marjorie’s life and because the loving
“bond” between father and Marjorie did not “outweigh[] the
benefits of permanency the child will have with adoption and
enjoying the very strong bond she has with [her] caregivers.”
E. Appeal
Father filed this timely appeal.
DISCUSSION
Father’s notice of appeal encompasses the denial of his
section 388 motion and the termination of his parental rights
over Marjorie. His opening brief offers no argument whatsoever
regarding why the denial of the section 388 was erroneous and
offers only cursory argument as to why the trial court erred in
rejecting his argument that the beneficial parent-child bond
exception to termination of rights applies. On this basis, we
would be well within our rights to treat father’s appeal as waived.
(Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) However,
the juvenile court’s rulings are not erroneous in any event.
I. Denial of Section 388 Motion
To establish entitlement to modification of a prior juvenile
court order under section 388, the petitioning parent must show
(1) “a change of circumstances,” and (2) that the “modification of
the prior order would be in the best interests of the minor child.”
(In re Ernesto R. (2014) 230 Cal.App.4th 219, 223; In re Mickel O.
(2011) 197 Cal.App.4th 586, 615 (Mickel O.).) In evaluating the
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petition, the juvenile court “may consider the entire factual and
procedural history of the case.” (Mickel O., at p. 616.)
The burden of making each showing rests with the parent
(In re Angel B. (2002) 97 Cal.App.4th 454, 461 (Angel B.)), and
that burden is particularly heavy where, as here, reunification
services have been terminated. That is because, by that time, the
focus of dependency proceedings has shifted to addressing the
child’s need for a “‘stable [and] permanent’” home rather than the
parent’s desire for reunification. (In re Jasmon O. (1994) 8
Cal.4th 398, 419-420; cf. In re William B. (2008) 163 Cal.App.4th
1220, 1228 [focus is on reunification at the outset of a juvenile
dependency case].) Thus, courts insist that the circumstances be
changed, not merely changing because “stability for the child” is
not “promote[d]” by “delaying” “the selection of a permanent
home for a child” “[just] to see if a parent, who has repeatedly
failed to unify with the child, might be able to reunify at some
future point.” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) And
“stability and continuity” “assume[] an increasingly important
role” in evaluating “the child’s best interest.” (Angel B., at p. 464;
In re Marilyn H. (1993) 5 Cal.4th 295, 310 [“after termination of
reunification services,” “continued care [by her current caregiver]
is [presumptively] in the best interest of the child”].) We review
the denial of a section 388 motion for an abuse of discretion. (In
re Alayah J. (2017) 9 Cal.App.5th 469, 478.)
The juvenile court did not abuse its discretion in denying
father’s section 388 motion. Even if father’s completion of
additional individual counseling is viewed as a changed
circumstance, the court acted well within its discretion in
determining that it was not in Marjorie’s best interests to
reinstate reunification services. By this time, Marjorie had been
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living with her presumptive adoptive parents for 18 months and
exhibited a strong bond toward them. Father, however,
continued to be in denial about the very conduct that underlay
the entire juvenile dependency proceeding—namely, his penchant
for engaging in domestic violence with mother. Indeed, father’s
testimony denying the existence of the criminal protective order
that maintained that he brutally assaulted mother on two
occasions “without realizing it” shows a breathtaking lack of self-
awareness and translates into a continued danger to Marjorie,
particularly in light of his willingness to batter mother while she
was holding Marjorie in her arms. (In re Gabriel K. (2012) 203
Cal.App.4th 188, 197 [“One cannot correct a problem one fails to
acknowledge”].) As between granting Marjorie the stability and
permanency of living in a settled family unit with her
presumptive adoptive parents and granting additional
reunification services to a parent whose completion of 18 months
of such services had failed to yield an iota of insight into why he
needs to improve his parenting skills, the juvenile court did not
abuse its discretion in opting for the former.
II. Termination of Parental Rights
Once a juvenile court has terminated reunification services
over a child within its dependency jurisdiction, it “shall terminate
parental rights” once it finds, “‘by clear and convincing evidence,’”
“‘that it is likely the [child] will be adopted’” within a reasonable
time. (§ 366.26, subds. (a) & (c)(1); Cynthia D. v. Superior Court
(1993) 5 Cal.4th 242, 249-250.) Thus, a juvenile court must
terminate parental rights and order adoption unless the parent
opposing termination proves that one of six statutory exceptions
applies. (§ 366.26, subds. (c)(1) & (c)(1)(B); In re I.W. (2009) 180
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Cal.App.4th 1517, 1527, overruled in part on other grounds as
stated in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010.)
One of the six exceptions is the beneficial parent-child
relationship exception. It applies when (1) “the parents have
maintained regular visitation and contact with the child,” and (2)
“the child would benefit from continuing the relationship.”
(§ 366.26, subd. (c)(1)(B)(i).) Because “‘[i]nteraction between
natural parent[s] and [a] child will always confer some incidental
benefit to the child,’” the second element of the exception requires
a parent to show (1) “he or she occupies a parental role in the
child’s life, resulting in a significant, positive, emotional
attachment between child and parent,” and (2) “the child would
suffer detriment if . . . her relationship with the parent were
terminated.” (In re C.F. (2011) 193 Cal.App.4th 549, 555.) In
assessing whether termination of parental rights would be
detrimental to a child, courts look to “(1) the age of the child, (2)
the portion of the child’s life spent in the parent’s custody, (3) the
positive or negative effect of interaction between the parent and
the child, and (4) the child’s particular needs.” (In re Angel B.
(2002) 97 Cal.App.4th 454, 467.) We review the first “factual
issue” of whether there is a beneficial parent-child relationship
for substantial evidence, and the discretionary decision of
whether the child would suffer detriment for an abuse of
discretion. (In re J.C. (2014) 226 Cal.App.4th 503, 530-531.)
The juvenile court did not abuse its discretion in declining
to apply the beneficial parent-child relationship exception
because father did not occupy a parental role in Marjorie’s life.
She has been out of his custody since she was 14 months old
(when mother absconded with her); she is now five years old.
Father also never progressed beyond monitored visits with her.
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Marjorie herself viewed father more as a “visitor” than a parent.
Father had the burden of establishing that he occupied a
parental role (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343),
and he failed to do so.
III. Father’s Arguments
In his brief, father argues that the juvenile court erred in
rejecting his testimony as “not credible,” that the court “did not
weigh the evidence,” that the court “did not apply the clear and
convincing evidence” standard, and that it “abused its authority”
in finding that he had a bond with Marjorie but did not occupy a
parental role in her life.
These arguments lack merit. As to the first, it is not our
job to re-weigh a juvenile court’s credibility findings (In re T.W.
(2013) 214 Cal.App.4th 1154, 1161), and even if it were, the
juvenile court absolutely made the right call here. As to the
second, the record reveals that the trial court examined (and
thus, “weighed”) the evidence in making both of its rulings. The
clear and convincing evidence standard is irrelevant to a section
388 motion, and only applies to the Department’s initial showing
of adoptability in the termination-of-rights context (which father
does not attack on appeal). And there is no inconsistency
between the court’s finding that father had a bond with Marjorie
and that he still did not occupy a parental role; they are separate
inquiries directed at different attributes of their relationship.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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