In re L.C. CA4/1

Filed 9/10/15 In re L.C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re L.C., A Person Coming Under the
Juvenile Court Law.
D067399
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518623)
Plaintiff and Respondent,

v.

AMANDA S.,

Defendant and Appellant.

APPEAL from a judgment and order of the Superior Court of San Diego County,

Kenneth J. Medel, Judge. Affirmed.

Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent.
 Appellant Amanda S. (Amanda) appeals a juvenile court judgment and order

terminating her parental rights to L.C., age 2 (L.C. or the child), and selecting adoption as

her permanent plan. (Welf. & Inst. Code, § 366.26; all further statutory references are to

this code unless noted.) Amanda also appeals the court's order denying her modification

motion, which sought a transition plan for placement of the child with her. (§ 388.)

On appeal, Amanda argues the court abused its discretion in denying her motion

for modification, based on her showing of significantly changed circumstances since her

reunification services had been terminated at the 12-month review hearing in May 2014.

(§ 388.) As of October 2014, she had graduated from a substance abuse treatment

program and she was now successfully caring for her new baby, born in June 2014 to

Amanda and the presumed father of L.C. (M.C.).

Amanda further challenges the sufficiency of the evidence to support the court's

finding that no exception to adoption preference applied, i.e., the beneficial parent-child

relationship. (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th 567,

576 (Autumn H.).) M.C.'s parental rights were also terminated, and he did not appeal.

The record does not show any abuse of judicial discretion or lack of supporting

evidence, and we affirm the judgment and order.

FACTUAL AND PROCEDURAL BACKGROUND

A. Jurisdiction, Disposition, and Termination of Reunification Services

When L.C. was born in February 2013, Amanda had two older daughters. They

were subject to dependency court jurisdiction based on Amanda's drug use, arrests and

domestic violence. They were removed from Amanda's care and placed in the

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guardianship of her father and stepmother. In 2011 and 2012, Amanda and M.C. had

each been arrested several times for drug offenses and Amanda, for prostitution. Amanda

was again arrested for drug possession on January 26, 2013.

At L.C.'s birth, both she and Amanda tested positive for amphetamines. The San

Diego County Health and Human Services Agency (the Agency) investigated and L.C.

was taken into protective custody. The Agency filed a dependency petition in February

2013. (§ 300, subd. (b)(1) [parents unable to provide regular care because of substance

abuse that posed substantial risk of child's serious physical harm/illness].) The parents

were given supervised visitation opportunities. They requested a contested jurisdictional

hearing, but they were both arrested for theft crimes before it could take place. They then

agreed that jurisdiction could be determined at a document trial and settlement

conference in April 2013. The petition was sustained and custody was removed from the

parents, and reunification services were ordered.

The Agency had the discretion to detain L.C. with relatives or with a nonrelative

extended family member (NREFM), and in April 2013, when she was about two months

old, she was placed in foster care in the home of a steppaternal aunt, Mrs. R. (with her

husband, "the caregivers"). There the matter rested until August 2013, when Amanda

was released from custody. Both she and M.C. requested visitation opportunities and at

the recommendation of the social worker, the court extended reunification services for

another six months, until the next scheduled hearing in April 2014. Amanda had positive

drug tests in October and November 2013 and did not visit L.C. for a while after October.

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 While Amanda was still on probation, she was arrested for use of

methamphetamine in December 2013. At that time, she was expecting another child with

M.C. Amanda was placed in the Kiva drug treatment program in January 2014. Starting

in February 2014, she began weekly supervised visits with L.C.

The next hearing was set for May 14, 2014. By that time, the caregivers had been

designated as de facto parents. Amanda had recently been reported by the dependency

drug court to be sober and in compliance with the treatment program, and she was due for

release from it. Her new baby was born in June 2014.

At the contested 12-month review hearing, the court ruled that the parents had

been provided with reasonable services, but had not made substantive progress on their

reunification plans. The court made a finding that L.C.'s return to parental custody would

be detrimental, and reunification services were terminated. The court scheduled a

permanency planning hearing in September 2014. (§ 366.26.) Amanda requested a

contested hearing and eventually, the matter was continued until December 2014.

Amanda filed a request to challenge the orders of the juvenile court at the 12-

month review hearing. (Cal. Rules of Court, rule 8.452.) However, this Court dismissed

the case on July 1, 2014 after Amanda's attorney indicated there were no viable issues for

review. (In re L.C. (dism. July 1, 2014, D065973).)

B. Modification Motion and Permanency Planning Hearing

On October 21, 2014, Amanda filed a motion under section 388 for modification

of the prior order terminating her reunification services. She requested a transition plan

for L.C.'s placement with her, since she had completed the residential Kiva drug

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treatment program and was maintaining her sobriety in aftercare. Amanda was now

caring for her new baby and all of L.C.'s siblings had been attending visits with her and

were establishing a strong bond.

The modification petition was heard together with the permanency planning

hearing in December 2014, and the same evidence was considered. (§§ 366.26, 388.) It

will be outlined in some detail in the discussion portion of this opinion. Regarding

modification, the Agency stipulated that Amanda had successfully shown changed

circumstances, but it argued that the other prong of section 388, that the requested

modification would be in the best interests of L.C., had not been proven. The court

denied the petition and proceeded with the contested section 366.26 hearing. The

Agency stipulated that Amanda had complied with the visitation and contact requirement,

but it contested her claim that the beneficial parental relationship exception to adoption

should apply. (§ 366.26, subd. (c)(1)(B)(i).)

At the close of the hearing, the court found L.C. was adoptable and the asserted

parental relationship exception did not apply. Rather, adoption was found to be in her

best interests as the permanent plan, and the parental rights were terminated. Amanda

appeals.

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 DISCUSSION

I

MODIFICATION MOTION

Amanda contends the juvenile court erred or abused its discretion in denying her

petition for modification under section 388. Amanda was seeking a transition plan for

L.C.'s placement with her where she was living with her own parents.

A. Applicable Standards: Two Prongs; Prima Facie Case

The parties stipulated that Amanda, as the petitioner, had made an adequate

showing that changed circumstances existed. (In re Marilyn H. (1993) 5 Cal.4th 295,

309-310; In re Stephanie M. (1994) 7 Cal.4th 295, 316-317; § 388, subd. (a).) Amanda

next had the burden to show by a preponderance of the evidence that the proposed change

would promote the best interests of the child. (Stephanie M., supra, at pp. 316-317; In re

Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).)

In deciding whether the petition makes the necessary showing, the juvenile court

may consider the entire factual and procedural history of the case. (In re Justice P.

(2004) 123 Cal.App.4th 181, 189.) Appropriate modification factors for the court to

consider, as set out in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, include (1) the

seriousness of the problem leading to the dependency; (2) the relative strength of the

child's bonds with the parent and with the caretaker; and (3) the degree to which the

problem could be easily resolved.

This court reviews the grant or denial of a petition for modification under section

388 for abuse of discretion. (In re Shirley K. (2006) 140 Cal.App.4th at p. 71; In re

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Casey D. (1999) 70 Cal.App.4th 38, 47.) We inquire if the lower court exceeded the

limits of legal discretion by making any arbitrary, capricious, or patently absurd

determinations. (In re Stephanie M., supra, 7 Ca1.4th at p. 318; In re Marcelo B. (2012)

209 Cal.App.4th 635, 642.)

B. Analysis on Best Interests Criterion

Amanda's modification petition attached certificates of completion of her

residential drug recovery program and parenting class. Since her reunification services

were terminated in May 2014, she had maintained her sobriety in aftercare. She was

successfully caring for her new baby at her parents' home, where her two older daughters

had been placed in guardianship.

The Agency filed addendum reports in October and December 2014, opposing the

modification request. Amanda had not visited L.C. for five weeks beginning in

September 2014, in part because she and her other children were sick. L.C. had hernia

repair surgery in mid-September 2014, and recovered well, in part due to the excellent

care given by the caregiver, as noted by the doctor and nurse. Although Amanda's

supervised visits with L.C. in October had been positive and interactive, L.C. did not

have any difficulty separating from Amanda when the visits were over. The Agency

believed that there was a moderate bond between them, but L.C. did not look for Amanda

in her absence, or remain in distress when Amanda was not present. L.C. recognized and

enjoyed being with her half sisters and the baby, but she did not demonstrate any sibling

bond with them.

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 The Agency reported that Amanda was now employed. She and M.C. wanted to

get married and move in together, but right now, they felt that staying at their separate

parents' homes was working for them. M.C. was no longer opposing termination of his

parental rights. The Agency had continuing concerns about whether Amanda would be

able to maintain her sobriety outside of the supportive environment she had built over the

past year, including living with her parents. Since her birth, L.C. had never lived with

Amanda. L.C. was attached to her caregivers, calling them Mom and Dad, and she

related to the caregivers' children as her siblings.

Amanda testified that she had been sober since December 2013, and she continued

to go to support groups, see her sponsor, and attend meetings if she needed to do so. She

had almost completed her drug court obligations. At their weekly visits, L.C. usually

went to see the other children before she turned to Amanda to say hello, and then the

children played well together. Amanda did not call the caregiver at the time that L.C. had

her surgery, because she did not know exactly when it took place. Amanda said that she

and M.C. were no longer together as a couple and she did not know whether that would

change.

The court received into evidence the Agency's reports and Amanda's attachments

to the modification petition. The same evidence was considered for the permanency

planning hearing as well. (§§ 366.26, 388.) The social worker was not called to testify.

In making its ruling on the modification petition, the court first acknowledged the efforts

that Amanda had made to improve her parenting skills and health, as well as the

caregivers' efforts, and it noted that it was not disparaging anyone. The court focused on

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the child's need for stability and whom she believed to be her parents and caregivers.

Even though L.C. would not now be in mortal danger if returned to Amanda, the court

found that keeping the child in the home of the caregivers would greatly promote her best

interests, because she was bonded to them and they were aware of and coping with her

special medical and other needs. Based on Amanda's history, including drug abuse and

criminal behaviors when together with M.C., the court was concerned that Amanda might

not be able to adhere to her new lifestyle if she got back together with him, which was

still a possibility.

In its ruling, the court addressed the appropriate factors for evaluating the best

interests aspect of section 388, in a balanced and thorough manner. The court

acknowledged the seriousness of the problems leading to dependency, as well as

analyzing the relative strength of the bonds between L.C. and Amanda, and L.C. and her

caregivers. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.) The court discussed the

relative ease with which the dependency issues were being resolved, by acknowledging

that Amanda had made great strides in addressing her problems, but she was also exposed

to certain risks of relapsing. (Ibid.)

The juvenile court had a sufficient basis in the evidence to conclude that Amanda

had not demonstrated that removing L.C. from her placement with the caregivers would

be in the child's best interests. On this record, it was not an abuse of discretion for the

court to deny the modification petition.

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 II

TERMINATION OF PARENTAL RIGHTS

A. Applicable Standards; First and Second Prongs

It is not disputed that L.C. is likely to be adopted, either by the interested

caregivers or by other approved local families wishing to adopt a child with such

characteristics. Amanda contends the beneficial parental relationship exception to

adoption properly applies to this case. (§ 366.26, subd. (c)(1)(B)(i); Autumn H., supra,

27 Cal.App.4th at p. 575.) She argues that insufficient evidence supports the court's

decision to terminate her parental rights, in light of the bond she had established with

L.C. and the benefits to the child of experiencing that extended family environment.

"Regular visitation and contact" are statutory threshold requirements for a claim

that a beneficial parental relationship has been maintained. (§ 366.26, subd. (c)(1)(B)(i).)

It was not disputed that Amanda's efforts to maintain contact and visitation, especially

since February 2014 when she was at the Kiva program, met the first criterion for this

exception to apply. However, the court also had to determine if Amanda showed the

child would substantially benefit from continuing the relationship. (Ibid.; In re

Justice P., supra, 123 Cal.App.4th at p. 191; Zachary G., supra, 77 Cal.App.4th at

pp. 810-811.) To support this exception to adoption, the court must find "a compelling

reason for determining that termination would be detrimental to the child." (§ 366.26,

subd. (c)(1)(B); In re C.F. (2011) 193 Cal.App.4th 549, 553.)

The juvenile court considers the detriment issue on a case-by-case basis, taking

into account the many variables that can affect the parent-child relationship. (Autumn H.,

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supra, 27 Cal.App.4th at pp. 575-576; In re J.C. (2014) 226 Cal.App.4th 503, 532.)

Among the variables to be considered in evaluating the benefits of a parental relationship

are the child's age, the amount of time the child spent in the parent's care, whether the

interactions are positive or negative, and whether the child has particular needs that the

parent can satisfy. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)

The court in In re J.C., supra, 226 Cal.App.4th at pages 530 to 531 applied a

substantial evidence standard of review to the preliminary factual issue of whether the

parent had proved she had a beneficial parental relationship with the child. However, as

to the weighing test under section 366.26, subdivision (c)(1)(B)(i), in which the juvenile

court balances the parent-child relationship against the benefits the child would derive

from adoption, the appellate court opined that the abuse of discretion test may apply to

evaluate this " ' " 'quintessentially' " discretionary decision.' " (In re J.C., supra, at

p. 531; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) Based on the respective

showings, the court must balance "the strength and quality of the natural parent[-]child

relationship in a tenuous placement against the security and the sense of belonging a new

family would confer." (Autumn H., supra, 27 Cal.App.4th at p. 575.)

The weight of authority still applies the substantial evidence test to appeals from

decisions about the beneficial parental relationship exception. (Autumn H., supra, 27

Cal.App.4th at pp. 575-577.) In reviewing the sufficiency of evidence, the reviewing

court makes presumptions in favor of the judgment, views the evidence in the light most

favorable to the Agency, and gives the order the benefit of all reasonable inferences. (In

re C.F., supra, 193 Cal.App.4th at p. 553; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

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 B. Application of Criteria: Benefits of Parental Relationship

In its ruling, the court noted that both the sibling and the parental benefit

exceptions were being asserted, and its ruling applied to both. Only the parental benefit

exception is argued on appeal, however.

Amanda points to her consistent, positive visitation interactions with L.C. as

showing the child would benefit from continuing a parental relationship with her.

(§ 366.26, subd. (c)(1)(B)(i); In re Justice P., supra, 123 Cal.App.4th at p. 191; In re

C.F., supra, 193 Cal.App.4th at p. 555.) The assessment social worker reported that

Amanda and L.C. had a moderate bond. In stating its ruling, the juvenile court expressed

its wish to the parties that Amanda should be able to continue to have visitation with

L.C., even after termination of her rights, because it recognized that such a bond existed.

Amanda argues that the court could have implemented that wish by ordering

guardianship, rather than termination of parental rights.

Although visitations were positive, the social worker who observed them noticed

that L.C. was consistently able to separate from Amanda without difficulty at the end of

the visits. Amanda had never progressed to unsupervised or overnight visits. L.C.

preferred socializing with Amanda over visiting with the social worker, but L.C.'s

behavior was basically the same at their visitation, or at day care, or in the care of the

social worker. The social worker attributed L.C.'s sociability and resilience, and her

ability to regulate her own emotions and explore her surroundings, to the secure

attachment that she had developed with her primary caregivers, rather than to Amanda's

influence.

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 Although there was clearly a moderate bond between Amanda and L.C., Amanda

had never behaved in a consistent parental role toward her, except during visitation hours.

L.C., still under two years old at the time, had never lived with Amanda and the half

sisters, and even though they were all comfortable at visitation, the court appropriately

found that the positive aspects of such relationships did not outweigh the benefits to L.C.

of a permanent placement in an adoptive home. The caregivers were seen to be the ones

who were meeting L.C.'s medical, developmental, and emotional needs. If the caregivers

became unable to adopt, there were other approved local families interested in adopting a

child like this one.

Based on the nature of the relationship Amanda had developed with L.C., it was

unlikely to be detrimental to L.C. if her parental ties were severed. L.C. did not have any

real opportunity to develop a significant attachment to Amanda as a parental figure.

(Autumn H., supra, 27 Cal.App.4th at pp. 575-576; In re C.F., supra, 193 Cal.App.4th at

pp. 558-559 [parent cannot establish applicability of parent-child beneficial relationship

exception by showing the child derives only incidental benefits from maintaining parental

contact].) Amanda's presentation fell short of the required showing in support of the

parental benefit exception, i.e., evidence of a substantial, overriding benefit to the child

when a parental role exists, such that it would be detrimental to terminate it. (Id. at

p. 555.) Conversely, the evidence did not support a finding that L.C. would be harmed if

she stayed with the caregivers. The benefits and stability that their home had provided

and would provide to her evidently outweighed any harm that might occur to the child by

severing her relationship with Amanda.

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 Moreover, the juvenile court had an adequate basis to conclude that L.C. did not

have any special needs that only Amanda could satisfy. (In re Angel B., supra, 97

Cal.App.4th at p. 467.) Without more evidence of a substantial, overriding benefit to the

child if her parental relationship with Amanda were continued, the court was justified in

concluding this exception to adoption did not apply here. (Autumn H., supra, 27

Cal.App.4th at pp. 575-576.) Substantial evidence supports the juvenile court's findings

and orders. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)

DISPOSITION

The judgment and order are affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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