Filed 7/25/22 In re L.R. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Rudolph A. Diaz, Judge. Affirmed.

Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

The juvenile court terminated the parental rights of L.E. (mother) with respect to her son, L.R., under Welfare and Institutions Code[1] section 366.26. On appeal, mother challenges the juvenile court’s orders: (1) summarily denying her section 388 petition to modify the order terminating her reunification services; and (2) terminating her parental rights based on the court’s finding that the beneficial parent-child relationship to adoption did not apply. We affirm.

background

Mother and E.R. (father)[2] are the parents of L.R., who was born in December 2019. When this case arose in January 2020, he was one month old. L.R. lived in an apartment with his parents and other paternal relatives.

On January 28, 2020, the Department of Children and Family Services (Department) received a referral alleging L.R. was at risk of physical abuse, emotional abuse, and neglect. The reporting party stated she has often heard mother yelling at her child and “‘telling the child to shut up and shut the [expletive] up[.]’” Children in the area told the reporting party that they heard mother yell at the child, and that “‘they have seen mother hit the child, threaten to throw the child[,] and on one occasion threaten to kill the child.’” Upon receiving the referral, the Department asked the police to conduct a welfare check at the family residence.

When the police went to the home, mother stated “she was very upset and frustrated with [L.R.] because he is always crying.” She reported “she had a history of mental health problems[.]” Since L.R. was born, “she has been feeling even more depressed, and has had thoughts of taking a knife or razor blade to cut herself.” While speaking to the police, mother stated she was currently having thoughts of self-harm. She admitted she yelled at L.R. several times, and has said “if he did not shut up she would kill him.” While she “said she had never hit or struck [L.R.,] . . . she did admit to throwing [him]” about a distance of one foot “onto a bed pillow.” Based on her comments, the police placed mother on a 72-hour psychiatric hold under section 5150.

The police then spoke to L.R.’s paternal aunt, M.R. M.R. reported that about two weeks before, mother “struck [L.R.] in the back repeatedly with an open palm[ ]” five or six times while “yelling ‘Shut up, shut up, shut the [expletive] up.’” When M.R.’s niece and nephew told mother to stop, she “replied that she was going to throw [L.R.]” and went into the apartment while M.R. stayed outside. Minutes later, L.R.’s paternal grandmother told M.R. that mother “tossed” L.R. from “the front doorway[ ]” to the bed in the living room. M.R. also stated mother “constantly grabs [L.R.] by the bicep area of the arm and yells at him.”

L.R.’s other paternal aunt, A.R., similarly told the police that while she was in the apartment about two weeks before, mother “came in through the front door . . . and under-hand tossed [L.R.] from there to the bed . . . located inside of the living room.” A.R. estimated L.R. was thrown a “distance . . . over three feet[.]” She stated that since the incident, mother “continues to hit [L.R.] on the back ‘[c]oncerningly hard for a baby.’” The police later told the Department that the distance between the apartment’s front door and the bed in the living room was approximately eight to nine feet.

On January 30, 2020, the Department filed a section 300 petition on L.R.’s behalf. The petition alleged L.R. was at substantial risk of serious physical harm due to: (1) mother’s physical abuse and father’s failure to protect him from her abuse (counts a-1 and b-1); (2) her “mental and emotional problems,” which “includ[ed] homicidal ideation and suicidal ideation,” and father’s failure to protect him from those problems (count b-2); and (3) father’s “mental and emotional problems,” which “includ[ed] Schizophrenia, Depression, and auditory hallucinations,” and mother’s failure to protect him from those problems (count b-3).

On February 4, 2020, mother was discharged from her psychiatric hold and arrested by the police. She was charged with one count of willful child endangerment under Penal Code section 273a. Per a criminal protective order filed on February 6, 2020, mother was ordered not to have contact with L.R. and not to come within 100 yards of him.

At the adjudication hearing held on July 15, 2020, the juvenile court sustained counts a-1 and b-1 as pled. The court struck the allegations regarding father’s failure to protect from count b-2, revised a few of the allegations pertaining to father in count b-3, and sustained both counts as amended.

Proceeding to disposition, the juvenile court declared L.R. a dependent of the court under section 300, subdivisions (a) and (b), removed him from both parents, found him suitably placed in foster care by the Department, and granted the parents reunification services. It granted mother monitored visits, which were to commence upon modification of the criminal protective order. Her court-ordered case plan required her to take developmentally appropriate parenting classes, attend individual and mental health counseling, undergo a psychiatric evaluation, and take all psychotropic medication as prescribed.

In August 2020, the Department was informed that mother “pled to one count of abusing [L.R.]” and was sentenced to five years of probation, one year in county jail, a 52-week parenting program, and mental health counseling “as deemed necessary by probation and [the Department].” She was ordered to comply with a “stay away protective order[,] which would mirror the [juvenile] court’s orders[.]” Around the same time, mother completed her time in jail and was released from custody. At some point, the criminal protective order was modified, and mother began having monitored visits with L.R. in the first week of September 2020.

In the first week of October 2020, L.R. was placed with his maternal aunt, H.E. (maternal aunt), in San Diego, where he has remained since.

On October 19, 2020, mother began a 52-week parenting program. Four days later, she started individual counseling with a therapist. Mother began seeing a psychiatrist on December 14, 2020, who stated her “working diagnosis” was “Unspecified Mood Disorder.”

The six-month status review hearing took place in January 2021. There, the juvenile court found continued jurisdiction was necessary because the conditions giving rise to dependency still existed, and that returning L.R. to his parents would place him at substantial risk of detriment. It continued the parents’ reunification services.

The contested twelve-month status review hearing was held on May 5, 2021. After hearing evidence and argument, the juvenile court found that continued jurisdiction was necessary, and that returning L.R. to his parents would place him at substantial risk of detriment. It also found that although the parents “have had over a year” to complete their case plans, they had not made sufficient progress in addressing the issues giving rise to jurisdiction. With respect to mother, the court noted she has not taken responsibility for her actions resulting in dependency, and that she “hasn’t even begun to address [case] issues in counseling.” Accordingly, it found that even if reunification services were extended, the parents were unlikely to be “in full compliance or appropriate compliance sufficient to return [L.R.] to their custody[ ]” within 18 months of his initial removal. Thus, the juvenile court terminated their reunification services and set a permanency planning hearing under section 366.26.

On September 15, 2021, mother filed a petition under section 388 seeking to modify the order terminating her reunification services. She asked the juvenile court to grant her six months of reunification services.

The section 366.26 hearing took place the next day. At the beginning of the hearing, the juvenile court summarily denied mother’s section 388 petition. In so doing, it found: (1) mother made “no showing of change[d] . . . circumstances; at best, [she showed] changing circumstances[ ]”; and (2) mother did not “demonstrate[ ] that ordering further reunification services at [the] time [of the hearing] is in the best interest of [L.R.]”

The juvenile court then held the section 366.26 hearing. After mother testified, her counsel argued that her parental rights should not be terminated because the beneficial parent-child relationship to adoption applied. The court rejected the argument and terminated the parents’ parental rights. Mother timely appealed.

DISCUSSION

I. Denial of Section 388 Petition

1. Legal Principles and Standard of Review

Under section 388, subdivision (a)(1), a parent may petition for a hearing to change, modify, or set aside any order previously made by the juvenile court based on changed circumstances or new evidence. “To obtain an evidentiary hearing on a section 388 petition, a parent must make a prima facie showing that circumstances have changed since the prior court order, and that the proposed change will be in the best interests of the child. [Citations.] To make a prima facie showing under section 388, the allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory. [Citation.] A section 388 petition must be liberally construed in favor of granting a hearing to consider the parent’s request. [Citation.]” (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.)

We review a juvenile court’s denial of a section 388 petition without a hearing for abuse of discretion. (In re G.B. (2014) 227 Cal.App.4th 1147, 1158.) “It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion[.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 522.)

2. Analysis

Mother contends the juvenile court abused its discretion by summarily denying her section 388 petition because she “demonstrated a material change of circumstances and made a sufficient prima facie showing that granting her section 388 petition would be in [L.R.’s] best interest.” We disagree. As discussed below, even assuming, arguendo, mother established changed circumstances, the juvenile court could reasonably find she did not make a prima facie showing that L.R.’s best interests would be served if she were granted six more months of reunification services. Consequently, the court did not abuse its discretion by denying her petition without a hearing.

Although not entirely clear, mother appears to contend she made a prima facie showing that her requested order was in L.R.’s best interests for two reasons. We address each in turn.

First, mother seems to argue that an order granting her additional reunification services would be in L.R.’s best interests because she has made progress in addressing the issues giving rise to dependency, and would be able to safely reunify with L.R. if given the opportunity to receive services for six more months. In support of her position, she emphasizes she has continued to attend her parenting program, participate in mental health services, and take psychotropic medications as prescribed. We are not persuaded.

In support of her section 388 petition, mother submitted two exhibits: (1) a progress letter from her parenting program showing she completed 44 weeks of parenting classes without absences and has participated in group discussions; and (2) a “Notice of Action” from the Medi-Cal Specialty Mental Health Program showing mother was ineligible for “specialty mental health services” because her mental health condition was not severe enough to justify those services. We commend mother’s progress and her continued efforts to address the issues giving rise to dependency. Courts, however, have made clear that a parent’s “simple completion of [services] . . . does not, in and of itself, show prima facie that either the requested modification or a hearing would be in the minor’s best interests. [Citations.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 463.) The exhibits attached to mother’s petition only reflect her continued participation in and anticipated completion of her parenting program, and that she did not qualify for “specialty mental health services” based on “the results of an assessment of [her] mental health condition[.]” Neither of mother’s service providers, however, spoke to whether she would be able to provide L.R. with suitable care or supervision within six months, nor did they recommend his return to her care upon her participation in services for six more months. Under these circumstances, the juvenile court could appropriately find her continued participation in services was insufficient to show that granting her further reunification services was in L.R.’s best interests. (See In re Angel B., supra, at p. 463, 469 [affirming summary denial of section 388 petition notwithstanding the mother’s completion of a drug program].)

Second, mother contends “[r]eunification with a parent, when it can safely be done, is in a child’s best interest.” In so doing, she implies that a child’s best interests are necessarily served by reunification with a biological parent.

Her contention is without merit. “The presumption favoring natural parents by itself does not satisfy the best interests prong of section 388.” (In re Justice P. (2004) 123 Cal.App.4th 181, 192.) To the contrary, where, as here, reunification services have been terminated, “there is a rebuttable presumption that continued foster care is in the child’s best interests. [Citations.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 448.) Further, “[w]hen, as here, the permanent plan is adoption, that presumption is even more difficult to overcome. [Citation.]” (Id. at pp. 448-449.)

Regarding L.R.’s best interests, mother’s petition alleged: “It is undoubtedly in [L.R.’s] best interests to maintain a parental relationship with . . . mother[,] . . . to allow visitation to continue[,] and [to] provide . . . mother with family reunification.” In so alleging, she did not “describe specifically how [granting further reunification services] will advance [L.R.’s] best interests. [Citations.]” (In re G.B., supra, 227 Cal.App.4th at p. 1157.) Nor did mother make “specific [allegations] regarding the evidence to be presented” on the issue. (In re Alayah J., supra, 9 Cal.App.5th at p. 478.) Faced with nothing but her conclusory assertions, the juvenile court reasonably found mother did not make a prima facie showing that she could rebut the presumption that continued foster care was in L.R.’s best interests.

In sum, even assuming, arguendo, mother made a prima facie showing of changed circumstances, the juvenile court appropriately concluded she did not make a prima facie showing that the requested order was in L.R.’s best interests. Accordingly, the juvenile court did not abuse its discretion by summarily denying mother’s section 388 petition without a hearing.[3]

II. Termination of Parental Rights

A. Legal Principles and Standard of Review

“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.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348, disapproved on another ground in In re Caden C. (2021) 11 Cal.5th 614, 636, fn. 5 (Caden C.).) “At that hearing, the court determines whether to terminate parental rights, making way for adoption, or to maintain parental rights and select another permanent plan.” (Caden C., supra, 11 Cal.5th at p. 625.)

“‘Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 53.) Consequently, if the court finds the child is adoptable, “the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances [set forth in section 366.26] provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—‘must be considered in view of the legislative preference for adoption when reunification efforts have failed.’ [Citation.]” (Ibid.)

One of these exceptions is the “beneficial parent-child relationship exception[.]” (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) This exception permits the selection of another permanent plan if “[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).)

In Caden C., supra, 11 Cal.5th 614, our Supreme Court interpreted section 366.26, subdivision (c)(1)(B)(i) and “discern[ed] three elements the parent must prove to establish the [beneficial parent-child relationship] exception[.]” (Id. at p. 631.) The court explained: “[T]he parent asserting the [beneficial parent-child relationship] exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent—the kind of attachment implying that the child would benefit from continuing the relationship. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home.” (Id. at p. 636.)

We review the juvenile court’s findings on the first two elements of the Caden C. test for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 639.) We apply a “hybrid standard” when reviewing a ruling on the third element of the test. (Id. at pp. 640-641.) “[T]he 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.” (Id. at p. 640.) Any factual determinations made in support of that decision, however, are reviewed for substantial evidence. (Ibid.)

3. Analysis

The parties do not dispute that mother satisfied the first element of the Caden C. test.[4] Instead, their disagreement lies in whether the juvenile court erred by finding she did not satisfy the test’s second and third elements.

Mother contends “the [juvenile] court did not conduct a proper analysis to determine whether the [beneficial parent-child relationship] exception applied.” Specifically, she argues that the court considered improper factors in evaluating the second and third elements of the Caden C. test. With respect to the second element, mother contends the juvenile court “focused entirely and erroneously on (1) whether [m]other could resume custody, (2) whether she occupied a parental role, and (3) whether [m]other addressed the issues that brought the case to the [court’s] attention[.]” On the third element, she contends “the court improperly based its ruling on facts that (1) [m]other did not occupy a parental role in [L.R.’s] life, (2) [m]other’s criminal protective order barred [L.R.] from returning to her custody, (3) having more contact with [m]other was not possible, and (4) inappropriately compared [L.R.’s] relationship with his maternal aunt to that with [m]other.”

The Department responds that in considering the second and third elements of the Caden C. test, “the juvenile court correctly analyzed whether [L.R.] had a substantial, positive, emotional attachment to [mother] and whether severing his ties to mother would be detrimental to [him].” In any event, it contends that “[e]ven if . . . the juvenile court articulated an improper analysis in evaluating whether the [beneficial] parent-child relationship exception applied,” any error was harmless because “the evidence amply supports the finding against application of the . . . exception” in this case.

We begin our analysis by noting that, as mother points out, when the juvenile court applies an incorrect legal standard to a discretionary matter, the case is typically “remanded for . . . redetermination of the ultimate issue on proper grounds. [Citations.]” (In re Carmaleta B. (1978) 21 Cal.3d 482, 496; see also F.T. v. L.J. (2011) 194 Cal.App.4th 1, 26.) The second element of the Caden C. test, however, does not involve a discretionary balancing of factors. Instead, it requires courts to “essentially [make] a factual determination whether the relationship [between the parent and the child] is such that the child would benefit from continuing from it.” (Caden C., supra, 11 Cal.5th at p. 640.) Thus, even if the juvenile court considered improper factors in analyzing the second element, we may determine whether the error was harmless. (See In re Janee W. (2006) 140 Cal.App.4th 1444, 1452; see also In re Celine R., supra, 31 Cal.4th at pp. 59-60.) In so doing, we consider whether the evidence concerning the nature of mother’s relationship with L.R. is undisputed and supports a finding that she failed to show L.R. had a substantial, positive, emotional attachment to her. (See In re Janee W., supra, at p. 1452 [“f the evidence on the . . . issue was undisputed and supports [the court’s] finding . . . , we may affirm the order[.]”].)

In analyzing the second element of the [i]Caden C. test, “the focus is the child. And the relationship may be shaped by a slew of factors, such as ‘[t]he age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs.’ [Citation.]” (Caden C., supra, 11 Cal.5th at p. 632.) “[C]ourts often consider how children feel about, interact with, look to, or talk about their parents. [Citations.]” (Ibid.)

At the time of the section 366.26 hearing, L.R. was one-and-a-half years old. He had not lived with mother since he was detained from her in January 2020, when he was only six weeks old. Because mother was incarcerated until August 2020, she did not begin having monitored visits with L.R. until the first week of September 2020, when he was about nine months old. At the section 366.26 hearing, mother testified she visited L.R. in-person twice per week while he was in his initial placement. She testified that during those visits, she played with L.R., talked to him, fed him, sang to him, and changed his diaper.

After L.R. was placed with maternal aunt in October 2020, mother continued to have monitored visits with L.R. Since then, mother has had 30-minute virtual visits three times per week, and in-person visits once per week from 12:00 p.m. to 2:30 p.m. at a shopping center. At the section 366.26 hearing, mother testified that during in-person visits, she feeds L.R., changes his diaper, and walks with him. She also testified that when it is too hot, she takes him to stores, where she would give him water and walk around with him, to make sure he does not get dehydrated. She believed L.R. enjoyed the visits.

At the section 366.26 hearing, mother bore the burden of proving the beneficial parent-child relationship exception applied. (See Caden C., supra, 11 Cal.5th at pp. 636-637.) Her counsel relied solely on her testimony to satisfy that burden. At most, mother’s testimony established her visits with L.R. were positive, and that, in her view, he appeared to enjoy them. To avoid termination of parental rights, however, mother “must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that [she and L.R.] find their visits pleasant. [Citation.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Instead, she “must show that [L.R.] has a substantial, positive, emotional attachment to [her.]” (Caden C., supra, at p. 636.) Mother’s testimony did not suggest or otherwise demonstrate L.R. had an attachment to her of that nature.

Moreover, we note that at the section 366.26 hearing, mother did not call any other witnesses to testify and did not submit any additional evidence. Nor did she ask the juvenile court to order a bonding study to assist it in assessing her relationship with L.R. (See Caden C., supra, 11 Cal.5th at p. 633, fn. 4 [“Trial courts should seriously consider, where requested and appropriate, allowing for a bonding study or other relevant expert testimony.”].) Further, on appeal, mother relied solely on her testimony at the section 366.26 hearing to show reversible error, which was insufficient, as discussed above. She did not cite—and we could not locate—any other evidence in the record showing L.R. had a “substantial, positive, emotional attachment to [her.]” (Caden C., supra, at p. 636.)

On this record, we conclude the undisputed evidence establishes mother failed to show L.R. had “substantial, positive, emotional attachment to [her] . . . implying that [L.R.] would benefit from continuing the relationship.” (Caden C., supra, 11 Cal.5th at p. 636.) For this reason, the cases cited by mother in support of her request for remand do not apply. (Cf. In re B.D. (2021) 66 Cal.App.5th 1218, 1228-1229, 1231 [matter remanded for a new section 366.26 hearing where the juvenile court relied heavily on the parents’ failure to complete their reunification plans in evaluating the second element of the Caden C. test, and the parents presented evidence to support a finding they had a beneficial relationship with their children]; In re J.D. (2021) 70 Cal.App.5th 833, 855, 863-865, 870 [matter remanded for a new section 366.26 hearing where the juvenile court may have considered improper factors in analyzing the second element of the Caden C. test, and mother presented sufficient evidence to support a finding that her son had a substantial, positive, emotional attachment to her]; In re L.A.-O (2021) 73 Cal.App.5th 197, 204, 211-212 [matter remanded for the juvenile court to reconsider application of the beneficial parent-child relationship exception where its finding that the parents had not acted in “parental role” was ambiguous, and the evidence showed, among other things, the children were affectionate toward their mother during visits, the younger child turned to her mother for comfort when she was upset, and both children sometimes cried when visits ended].)

In sum, even assuming, arguendo, the juvenile court considered improper factors in analyzing the second element of the Caden C. test, any error was harmless because the undisputed evidence before us demonstrates mother did not satisfy her burden on that element. Accordingly, the juvenile court did not err by declining to apply the beneficial parent-child relationship exception in this case.[5]

DISPOSITION

The orders denying mother’s section 388 petition without a hearing and terminating mother’s parental rights are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

WILLHITE, J.

[1] All undesignated statutory references are to the Welfare and Institutions Code.

[2] Father is not a party to this appeal.

[3] In light of our conclusion on this matter, we need not address mother’s contention that she made a prima facie showing of changed circumstances.

[4] At the section 366.26 hearing, the juvenile court indicated mother satisfied the first element of the Caden C. test; specifically, it stated that “when [the parents] finally got [to] visiting, [they] have been consistent[.]” In contrast with this oral finding, however, the court’s minute order states: “The Court finds that the parent[s] ha[ve] not maintained regular visitation with the child[.]” Where, as here, “there is a conflict between the juvenile court’s statements in the reporter’s transcript and the recitals in the clerk’s transcript, we presume the reporter’s transcript is more accurate. [Citation.]” (In re A.C. (2011) 197 Cal.App.4th 796, 799-800.)

[5] In light our conclusion on this matter, we need not address mother’s contention that the juvenile court also utilized improper factors to analyze the third element of the Caden C. test.