Filed 3/9/22 In re A.S. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.S., a Person Coming B311634
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK22883A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
H.W.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Martha A. Matthews, Judge. Affirmed.
Janelle B. Price, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Principal
Deputy County Counsel, for Plaintiff and Respondent.
******
H.W. (father) appeals from the denial of his Welfare and
Institutions Code section 3881 petition, filed on the eve of the
permanency planning hearing, and from the termination of his
parental rights. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A.S. came to the attention of the Los Angeles County
Department of Children and Family Services (Department) in
May 2017 when she was less than a week old. The Department
filed a petition against A.S.’s mother and her male companion,
who was deemed the alleged father, pursuant to section 300,
subdivisions (a), (b) and (j) based on allegations of domestic
violence and substance abuse. During the Department’s
investigation, it was determined mother and alleged father had
violent altercations and mother regularly used
methamphetamines during her pregnancy. (Mother and alleged
father are not parties to this appeal.)
A.S. was placed in the care of foster parents, Mr. and
Mrs. G.
Father contacted the Department and reported he believed
he was A.S.’s biological father. In July 2017, DNA testing
requested by father established his paternity. Father agreed to a
home assessment by the Department and to attend a parenting
class. A month later, the court sustained the petition as to
mother and alleged father, denied reunification services to both of
them, found father to be the presumed father and placed A.S. in
his home with family maintenance services.
1 All further undesignated section references are to the
Welfare and Institutions Code, unless otherwise noted.
2
Shortly thereafter, father obtained permission to take A.S.
on a two-week vacation to visit family in South Carolina. The
agreed-upon return date was September 10, 2017. Father did not
return as agreed. Once the Department was able to reach father
by telephone, he explained that a hurricane was causing
problems with his ability to travel home by bus. A Department
social worker flew to South Carolina to meet with father and see
how A.S. was doing. The social worker provided father with
supplies, including diapers and formula. A.S. appeared to be fine
and bonding with father. Father said he would likely return to
California after his birthday in early October.
By November 2017, father still had not returned to
California with A.S. and it was increasingly difficult to reach him
by phone or e-mail. The social worker returned to South
Carolina, met with father and found A.S. to have a cold. She
advised father A.S. needed to see a doctor for her cold and her
six-month immunizations. Father again said he planned to
return to California soon, but he failed to do so.
On November 14, 2017, the Department filed the first of
four petitions stating allegations against father. The petition,
filed pursuant to section 342, alleged father had failed to enroll in
or complete a parenting class, failed to keep in contact with the
Department and failed to return A.S. to California. The court
issued a protective custody warrant for A.S. With the assistance
of local law enforcement in South Carolina, the Department
regained custody of A.S. without incident and the protective
custody warrant was recalled.
A.S. was returned to the foster home of Mr. and Mrs. G,
who reported being “grateful” the child could be returned to their
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care and that they remained willing to facilitate visitation with
father and eventual reunification.
The contested adjudication hearing was continued to March
2018. Father contacted the Department in late February and
reported he was back in California but was now homeless. The
Department was unsure whether father had in fact returned to
California. The Department advised the court father was not
responding to its efforts to keep in contact and schedule visitation
with A.S.
In March 2018, the court, in father’s absence, sustained the
section 342 petition, ordered reunification services for father and
monitored visitation with A.S.
According to a September 2018 status report, A.S. was
doing well in the home of Mr. and Mrs. G, who were “lovingly”
attentive to her needs. A.S. also appeared happy in the company
of her foster siblings. During this time, Dr. Lyn Laboriel
diagnosed A.S. with partial fetal alcohol syndrome (FAS),
microcephaly and some developmental delays. Dr. Laboriel told
the social worker that A.S. would need lifelong care and needed
to be placed with “somebody who can understand her slow pace,
provide structure, consistency and a stable home environment.”
Dr. Laboriel said the foster parents were doing “extremely well”
in that capacity. Mr. and Mrs. G remained committed to
providing A.S. the care she needed.
The Department also learned that despite father’s earlier
claims, he did not return to California until April 2018. Father’s
return home was delayed in part because he was arrested for an
altercation with his brother that resulted in him serving time in
jail. However, since his return, father was staying in contact
with the Department. Because of father’s absence from A.S.’s life
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for about six months, father’s visits with A.S. were difficult. A.S.
was having trouble bonding with father and usually cried in his
presence and resisted being held by him.
Several months later, the Department reported father was
attending a class for parents with children suffering from FAS
and was attempting to understand A.S.’s diagnosis and resulting
special needs. Father called A.S. his “angel.” He had obtained
housing (a studio apartment) and was acquiring the necessary
items to make the home a safe environment for A.S. Father was
still attempting to form a bond with A.S. during monitored visits.
The bonding process was complicated by the fact father often
missed or canceled visits. The approved monitor for the visits
reported A.S. often reacted negatively when she saw father. In
contrast, the social worker reported that A.S. remained strongly
bonded to her foster parents and siblings.
At the review hearing in January 2019, the court ordered
six more months of services for father and continued monitored
visitation with A.S. but granted discretion to the Department to
liberalize father’s visits to unmonitored.
In April 2019, just before the 18–month review hearing, the
Department filed its second petition against father pursuant to
section 342 based on a domestic violence incident between father
and his female companion, L.P. L.P. filed a domestic violence
complaint with the police, stating she and father had argued and
that father later had pushed his way into her apartment, pushed
her down on the bed, forcibly kept her there for about 30 minutes
and threatened to kill both her and himself. During the
Department’s investigation of the circumstances, L.P. changed
her story, claiming it was just a misunderstanding, and the
problems she was having were not with father but with a former
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boyfriend. The Department’s investigation also revealed prior
incidents of domestic violence with A.S.’s mother and another
former girlfriend.
In August 2019, the Department reported it was unable to
locate father’s girlfriend to be available for the adjudication
hearing on the domestic violence allegations. The Department
therefore withdrew the petition and asked the court to proceed
with a contested review hearing on the original petition.
The Department reported that due to continued
“inconsistencies” with father’s visitation, A.S. still had not formed
a strong, close bond with father. Father had “some periods of
regular visitation” but was otherwise inconsistent and unreliable.
The Department also expressed its concern that father continued
to minimize A.S.’s emotional and developmental needs and had
failed to demonstrate an ability to provide her with the support
and guidance she needed. Mr. and Mrs. G reported that after
visits with father, A.S. was “very clingy” and her sleep patterns
were disrupted, but she usually returned to her normal behaviors
within one to two days.
Dr. Laboriel, A.S.’s doctor, continued to express concern
over father’s unwillingness to accept A.S.’s diagnosis. Father
regularly said A.S. was “ ‘fine’ ” and did not have special needs.
The doctor cautioned that if father reunified with A.S. and did
not follow through with her services and therapy, she could
experience developmental declines very quickly.
The social worker described father as showing genuine love
and affection for A.S. but often having difficulty in guiding her
behaviors and being a consistent, reliable adult in her life. The
Department acknowledged father had nonetheless made
progress, had followed through with taking the parenting class
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and had maintained stable housing and a job. The Department
remained “apprehensive” about returning A.S. to father’s care
because of his unreliability, his tendency to be “easily agitated”
and resolve problems with aggression, and his inability to accept
responsibility for his own actions. The Department
recommended termination of father’s reunification services.
The court continued the contested review hearing on the
original petition to September 2019 and then again to November
2019. At both hearings, the court granted father extended
visitation with A.S., including overnights, weekends and then a
50/50 split with the foster parents in an effort to facilitate
father’s bonding with the child.
On November 4, 2019, the court found that father’s
progress had been substantial and released A.S. to father with
family maintenance services.
On April 28, 2020, the Department filed a third petition
pursuant to section 342 against father arising from allegations of
a new incident of domestic violence by father with another female
companion, M.M. The Department also filed a supplemental
petition pursuant to section 387 alleging father had repeatedly
failed to comply with the court’s order to complete drug and
alcohol testing.
On May 1, 2020, the court removed A.S. from father’s care.
A.S. was returned to the home of Mr. and Mrs. G.
According to the Department’s investigation of the latest
domestic violence allegations, M.M. told police father became
aggressive during a verbal argument, threw papers at her face,
grabbed her by her shirt collar and pressed his fists into her jaw
and face. She said father had been aggressive with her once
before. She requested an emergency protective order because she
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feared father would retaliate against her for reporting him to the
police.
M.M. told the social worker that father “constantly” put
A.S. “in the middle of their arguments” and she did not think that
was appropriate for the child. She said shortly after father had
regained custody of A.S., he left her apartment after an
argument, leaving A.S. with her for over a week without contact.
M.M. also said that if she told father to leave her apartment
because he was acting volatile, he would tell A.S. something like,
“she’s kicking us out, treating us like dogs.” A.S. often cried in
those circumstances. M.M. told father he needed to take a
domestic violence class and learn to control his anger, and he said
he would but did not want the Department to know about it.
M.M.’s children from another relationship also reported to the
social worker that father argued often with their mother.
In the jurisdiction and disposition report, the Department
reported that father’s visitation with A.S. remained “sporadic.”
Because of the COVID–19 pandemic, the visits were virtual.
Father said reception was not good in downtown Los Angeles
which made the virtual visits difficult. Mrs. G reported the
quality of the visits was “poor” because father failed to engage
with A.S. Mrs. G said they remained committed to adoption or
legal guardianship of A.S. if father was unable to reunify. The
Department recommended that father be allowed continued
monitored visitation with A.S. but not offered further
reunification services as he had already exceeded the period
allowed by statute. (§ 361.5, subd. (a).)
At the hearing on August 13, 2020, the court amended the
section 342 petition by interlineation, sustaining the allegations
of domestic violence at paragraphs (a)(2) and (b)(1)–(3). The
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court dismissed without prejudice the section 387 petition. A
contested disposition hearing was set for September 11, 2020.
In the period leading up to the disposition hearing, father’s
visitation continued to be problematic, as he often canceled or cut
visits short.
On September 11, 2020, the court terminated reunification
services for father because he had exceeded the time allowed for
reunification and set the section 366.26 hearing. Father filed
notice of intent to challenge the court’s setting of the permanency
planning hearing but did not follow through with the filing of a
writ. This court dismissed the writ, deeming it nonoperative
(case No. B307781).
In the section 366.26 report, the Department stated father’s
visitation with A.S. remained sporadic. Father lost his temper
with the monitor during a virtual visit on November 2, 2020, and
A.S. told father he was being “scary.” Father appeared to get
“very upset” and even though A.S. said she wanted to play a
game with father, he disconnected the call. The social worker
reported that A.S. was strongly bonded to her foster family.
According to an addendum report in March 2021, A.S. was
“thriving and doing well in the home” of the prospective adoptive
parents. Mrs. G told the social worker she loved A.S. “very much”
and only wanted the best for her. A home study had been
approved. It was reported that father had gotten sick with
COVID-19 and had therefore missed visits. After father reported
he was better, the Department offered to assist in arranging
makeup visits but father never followed up. Father sent an e-
mail in February 2021, claiming the reason he missed visits was
because he was not being forwarded the Zoom links. The
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Department reported that Mr. G had passed away but that
Mrs. G remained committed to adoption.
On April 8, 2021, father filed a section 388 petition
requesting the court modify its order of September 11, 2020, and
reopen reunification for another six months of services so that he
could reunify with A.S. Father said he had been making progress
in anger management and domestic violence classes and wanted
time to complete those classes. The petition included attached
letters indicating father had attended five sessions of a domestic
violence course and three sessions of an anger management
course and had begun individual mental health therapy once a
month.
The next day, the permanency planning hearing was held.
After entertaining argument, the court denied father’s
section 388 petition without an evidentiary hearing, reasoning
father had not shown it was in A.S.’s best interest to reopen the
reunification period. The court then heard argument on
terminating parental rights. The court found the parental-
benefit exception to adoption did not apply because father had
not shown the benefits of maintaining his relationship with A.S.
outweighed the benefits she would obtain from a permanent plan
of adoption. The court terminated parental rights.
This appeal followed.
DISCUSSION
1. Father’s Section 388 Motion
Father’s section 388 petition was filed on the eve of the
section 366.26 hearing and some six months after reunification
services had been terminated. Father requested six more months
of reunification services so he could complete anger management
and domestic violence programs he had recently started in order
10
to regain custody of A.S. Father contends the court abused its
discretion in denying his petition without a hearing and holding
him to a higher standard than is required by a prima facie
showing of changed circumstances.
“We review the juvenile court’s summary denial of a section
388 petition for abuse of discretion.” (In re Anthony W. (2001)
87 Cal.App.4th 246, 250.) We find no abuse.
The allegations of a section 388 petition are to be liberally
construed, but a parent filing such a petition must nevertheless
establish, by a preponderance of the evidence, both changed
circumstances and that the requested change would promote the
best interests of the child. (In re Zachary G. (1999)
77 Cal.App.4th 799, 806.) If the parent fails to show these
two elements, the court need not conduct a hearing on the
petition. (Ibid. [“prima facie requirement is not met unless the
facts alleged, if supported by evidence given credit at the hearing,
would sustain a favorable decision on the petition”].)
Because of the late stage of the proceedings, father’s prima
facie burden was necessarily difficult. Where, as here,
reunification services have been terminated, “a parent’s interest
in the care, custody and companionship of the child is no longer
paramount. [Citation.] Rather, at this point, the focus shifts to
the needs of the child for permanency and stability. [Citation.]
In fact, there is a rebuttable presumption that continued foster
care is in the best interest of the child [citation]; such
presumption obviously applies with even greater strength when
the permanent plan is adoption rather than foster care. A court
hearing a motion for change of placement at this stage of the
proceedings must recognize this shift of focus in determining the
ultimate question before it, that is, what is in the best interest of
11
the child.” (In re Angel B. (2002) 97 Cal.App.4th 454, 464; accord,
In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
We are not persuaded the court held father to an improper
higher standard. The court properly viewed the circumstances
from the perspective of the late stage of the proceedings.
Moreover, the comments by the court in denying father’s petition
do not show it applied the wrong standards. The court said, “I do
understand that a prim[a] facie showing is a low bar. The thing
is that it’s not zero. There just—under the facts of this case,
there is just no conceivable way that father could show that given
all of the things that have happened in the past that it would be
in this child’s best interest to reopen reunification again.”
The record supports the juvenile court’s exercise of
discretion in denying the petition. Father says there was
evidence of an “enduring” bond between him and A.S. and a
potential for reunification. It is true that in the summer of 2017,
while father was nonoffending and A.S. was an infant, the social
worker reported that father acted lovingly toward A.S. and they
appeared bonded. A.S. was then placed in father’s custody. But,
after father failed to timely return home with A.S. from South
Carolina, he had difficulties making A.S. his priority and
maintaining regular visitation. He went over six months without
visiting A.S., and his efforts to rebuild their initial bond were
fraught. The Department and the court acknowledged father’s
love for A.S. appeared to be genuine but that he nevertheless had
difficulty making her a priority which impacted the nature of
their relationship as she continued to mature into a toddler.
Father had occasional periods of regular visitation but overall
was inconsistent, canceling visits, and showing up late. The
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foster mother reported A.S. experienced difficulties, including
increased tantrums, related to father’s visitation.
The record does not support father’s assertion he was the
most significant parental figure in A.S.’s life and therefore it was
in her best interest to reunify with him. The record establishes
that Mr. and Mrs. G had been the most significant parental
figures. With the exception of a few months, A.S. had been in
their care for most of her life and she was strongly bonded to
them and their other children.
As father acknowledges, “[i]n determining whether the
petition makes the necessary showing, the court may consider the
entire factual and procedural history of the case.” (In re
Justice P. (2004) 123 Cal.App.4th 181, 189.) The juvenile court
here had been involved with the case since its inception in May
2017, when A.S. was just a few days old. The court was fully
aware of father’s efforts over an extended period to reunify with
his daughter and his failure to do so. The court acted well within
its discretion in concluding father had not shown his requested
modification on the eve of the permanency planning hearing was
in A.S.’s best interest.
To the extent father appears to challenge the court’s orders
issued on September 11, 2020, when the section 366.26 hearing
was set, those arguments are not cognizable on appeal. (In re
Anthony B. (1999) 72 Cal.App.4th 1017, 1022–1023.) As father
concedes, he did not pursue a writ of those rulings as required by
statute. (§ 366.26, subd. (l).)
2. Termination of Parental Rights
Father contends the juvenile court abused its discretion in
concluding the parental-benefit exception to adoption did not
apply. We disagree.
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Where, as here, “a court proceeds to select a permanent
placement for a child who cannot be returned to a parent’s care,
the parent may avoid termination of parental rights in certain
circumstances defined by statute. One of these is the parental-
benefit exception. What it requires a parent to establish, by a
preponderance of the evidence, is that the parent has regularly
visited with the child, that the child would benefit from
continuing the relationship, and that terminating the
relationship would be detrimental to the child.” (In re Caden C.
(2021) 11 Cal.5th 614, 629 (Caden C.); see also § 366.26,
subd. (c)(1)(B).) If the parent demonstrates these three things,
the parental-benefit exception to adoption applies and the
juvenile court should not terminate parental rights but “should
select a permanent plan other than adoption.” (Caden C., at
pp. 636–637.)
Father contends the court found he had demonstrated the
first two elements. While the minute order from the
section 366.26 hearing states otherwise, the transcript of the
hearing does reflect the following statement by the court,
“although the father has maintained regular visitation with the
child and has established a bond with the child, the court finds
that the benefit accruing to the child from the relationship with
her father is outweighed by the physical and emotional benefit
the child will receive through the permanency and stability of
adoption.”
In concluding father had not established the parental-
benefit exception to adoption, the court’s focus was almost
entirely on the third element of the exception—whether
termination of the parental relationship would be detrimental to
the child.
14
In resolving whether the parent has established this third
element, the court necessarily makes a series of factual
determinations. (Caden C., supra, 11 Cal.5th at p. 640.) But “the
court must also engage in a delicate balancing of these
determinations . . . by weighing the harm of losing the
relationship against the benefits of placement in a new, adoptive
home. And so, the ultimate decision—whether termination of
parental rights would be detrimental to the child due to the
child’s relationship with his [or her] parent—is discretionary and
properly reviewed for abuse of discretion.” (Ibid., citation
omitted.)
Father contends the court abused its discretion in finding
the first two elements but in concluding A.S. would not suffer
detriment from the termination of her relationship with father by
focusing on improper considerations like father’s past struggles
and the possibility that father might be able to maintain contact
with A.S. with a postadoption contract.
Caden C. made clear that a permanency planning hearing
“is decidedly not a contest of who would be the better custodial
caregiver.” (Caden C., supra, 11 Cal.5th at p. 634.) A parent’s
continued “struggles with the issues that led to the dependency
are ‘relevant to the application of the [parental-benefit] exception’
because it may be probative of whether interaction between
parent and child has a negative effect on the child.” (In re D.M.
(2021) 71 Cal.App.5th 261, 270.)
As we already explained above, the juvenile court had
handled this case for almost four years at the time of the
permanency planning hearing in April 2021. The court was well
informed of the issues father had confronted and the impact his
inability to address those issues had on A.S. The court explained
15
that, while father had maintained a relationship with A.S. and
loved her, “the reality [was] that that relationship has been kind
of on-and-off depending on other things happening in the father’s
life.” Despite father’s efforts, he was “really unable to maintain
his focus on the child as his priority” throughout the lengthy
reunification period. We are not persuaded the court improperly
used any factor in undertaking the “delicate balancing” Caden C.
requires.
Father also suggests the court improperly relied on the
possibility of a postadoption contract. The record does not
support the conclusion the court considered this a factor in
finding the exception to adoption did not apply. It appears plain
the court was simply attempting to offer some words of comfort to
father who expressed his upset with the court’s decision to
proceed with adoption.
DISPOSITION
The April 9, 2021 order of the juvenile court denying
father’s petition pursuant to Welfare and Institutions Code
section 388 is affirmed.
The April 9, 2021 order of the juvenile court terminating
parental rights to the minor A.S. is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J. WILEY, J.
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