Filed 9/7/17 In re Christian K. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

After appellant Julie K. (mother) failed to reunify with her son, Christian K., the juvenile court terminated her parental rights and decided that Christian should be adopted by his paternal grandparents. In this appeal, mother argues that the juvenile court erred in failing to find that statutory exceptions to adoption applied and in failing to return Christian to her care. Because we conclude that mother met her burden of establishing the applicability of the beneficial-relationship exception to adoption under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i),[1] we reverse and remand for further proceedings.

I.
Factual and Procedural
Background

Christian has two siblings: N.K., who is around 11-and-a-half years older than him, and M.K., who is around 14 years older than him. Before Christian was born, N.K. and M.K. became the subject of dependency proceedings in Contra Costa County. Mother ultimately reunified with both children and was awarded full custody. But while they were out of her care, they were placed with a maternal uncle. The children’s paternal grandmother (grandmother) also sought access to the children during this time, but according to the uncle, she called so often that it was disruptive. The uncle reported that after the children visited grandmother they had behavior problems and were defiant. He eventually asked that the children be removed from his care because “his family was not able to provide the level of care needed for [the children] after [grandmother’s] reported interference.”

Respondent Alameda County Social Services Agency (Agency) initiated the current proceedings in February 2014 by filing a dependency petition as to Christian and N.K.[2] The petition alleged that the parents could not regularly care for the children and had placed the children at a substantial risk of harm because of the parents’ long history of abusing, and continuing to use, methamphetamine.[3] (§ 300, subd. (b).) N.K. was 15, and Christian was 4. At first, Christian and N.K. remained in mother’s home. In May 2014, the juvenile court sustained the petition following a hearing, found the children to be dependent minors, and ordered family maintenance services.

For a little over a year, mother continued to struggle with drug addiction and did not satisfactorily participate in her case plan. In early October 2014, she and father were arrested when a methamphetamine lab allegedly was found in their home. The children were taken into protective custody, and the Agency filed a supplemental petition (§ 387) alleging that the methamphetamine lab and mother’s drug usage put the children at a risk of harm. The children were ordered detained and removed from their parents’ custody. Later in October, the juvenile court sustained an amended supplemental petition alleging that the parents’ home was found to have drug paraphernalia within reach of the children and that mother continued to use drugs, ordered that the children be placed outside the home, and ordered reunification services. Christian and N.K. were placed together in a foster home.

In November, mother entered a residential-treatment program, but she left it the following month and maintained only sporadic telephone contact with the Agency for the next few months. In April 2015, Christian and N.K. were continued as dependent children following a hearing, and the juvenile court continued reunification services for mother. For several months after the hearing, mother continued to have difficulty staying sober and reunifying with her children.

Things changed in early July 2015, when mother entered a 90-day residential treatment program and did well. Our record contains no evidence that mother has used drugs since she entered this program. Mother visited with her children, and they were happy to see her. The Agency reported in October 2015 that mother had made “considerable progress” but was “still in the very early stages of recovery.” The Agency stated mother still needed to fully address her substance abuse before her children could safely be returned to her care. At the 12-month review hearing in October 2015, the juvenile court continued the children as dependent minors and ordered an additional six months of reunifications services for mother. Mother left her treatment program in November before she had officially “graduated,” though she had “nearly completed the program.”

Grandmother and her husband (step-grandfather), whose primary residence is Denmark, filed a two-page letter with the court in March 2016 stating they were concerned about their grandchildren living in foster care as the result of the parents’ substance abuse. They asked that Christian be placed with them so they could provide him with stability and so that he would be “safe from toxic chemicals and the [parents’] drug use of 23 years.” The Agency reported that since the grandparents lived overseas, it “would need to thoughtfully and carefully consider this placement option as Christian has lived all of his life in the United States and has a number of important connections and family in the United States, including . . . his sister N.K.” Grandmother reported that Cristian would be able to maintain regular contact with N.K. and mother because step-grandfather was employed by an airline and had “permanent flying privileges.” Grandmother appeared at a brief hearing in March and was present at most subsequent reported hearings.

Also in March, the Agency recommended that mother’s reunification services be terminated and asked the juvenile court to schedule a section-and-implementation hearing under section 366.26. Mother was employed, living in a sober-living house, and looking for housing that could accommodate her children. She consistently tested negative for drugs and was doing well. The Agency was concerned, however, that mother was “still new in her recovery” and was “feeling the pressure of trying to reunify with her children, acquire housing and make a home for her children, while prioritizing her recovery.” The Agency also was concerned that mother lacked secure housing where she could live with her children, and she had “yet to fully address the underlying causes of her inability to adequately care for and meet the needs of her children.” Still, mother was permitted to have Christian stay with her twice a month for overnight visits at the sober-living house.

Grandmother again wrote to the court in April 2016 to share research she had done at the county sheriff’s office about the parents’ criminal history. She stated she and her husband were concerned for Christian’s safety and wanted Christian placed with them “for his well being and his future.” Christian and N.K. visited with grandmother and step-grandfather in May, then again later that summer.

Mother first intended to contest the Agency’s recommendation that her reunification services be terminated, apparently with the hope that her children could be returned to her. But at a hearing in May 2016, mother’s attorney stated mother was withdrawing the contest and would submit based on the Agency’s report. The attorney informed mother that should her situation change, she could file a motion for a change of court order under section 388. The juvenile court terminated mother’s reunification services and scheduled a selection-and-implementation hearing under section 366.26. Because N.K. was turning 18 within six months, the juvenile court summarized the plans for her to transition to independence. Mother continued to have twice monthly overnight visits with Christian.

Christian’s foster mother reported difficulties in the communications between grandmother and Christian. According to the foster mother, grandmother sometimes called several times in a row if the foster mother did not answer the phone, and grandmother was “demanding.” The foster mother also was offended when grandmother expressed discomfort with the foster mother’s leaving Christian alone with the foster mother’s developmentally delayed teenaged son.

In advance of the selection-and-implementation hearing, the Agency in September 2016 recommended that Christian remain in his current foster home until an adoptive placement was found and that parental rights not be immediately terminated. The Agency requested 180 days to either find an adoptive home or to have grandmother’s home approved for adoption. Christian’s court appointed special advocate (CASA) recommended that Christian be placed with grandmother and step-grandfather in Denmark and that the Agency arrange a plan for regular phone and in-person contact with Christian’s family in the United States. Around this time, grandmother and step-grandfather again wrote a detailed letter to the juvenile court characterizing mother as “unfit” and advocating for Christian’s placement with them. A home assessment was completed through the Danish consulate, and the couple was cleared to have Christian in their home.

In early October 2016, mother filed a petition to change court order under section 388 (section 388 petition) asking Christian to be returned to her care. She attested that she had remained sober and now had stable housing that could accommodate Christian. The juvenile court ordered that a hearing on the petition be held at the same time as the selection-and-implementation hearing.

The Agency reported in early November that it would defer to the juvenile court on whether Christian should be returned to mother or placed with grandmother, as “[b]oth homes would provide loving parents to Christian” but there also were “concerns about both homes as well.” It stated it was “not in complete opposition” to mother resuming care of Christian, because she had stable housing and had adequately supervised him during weekend visits. Grandmother had shown commitment to Christian by repeatedly flying from Denmark, but the Agency was concerned over grandmother’s “overzealous communication style” and the possibility of cutting ties between Christian and his loved ones if he were to move abroad. Then, in early January 2017, the Agency changed its recommendation and asked that Christian be adopted by grandmother and step-grandfather and that parental rights be terminated. Christian’s CASA, meanwhile, submitted a report to the court stating, “Based on the very strong ties to his mother and sister, and assuming that his mother has complied with the case plan objectives for her, I would support returning custody of Christian to his mother. If this is not the case, then I believe awarding custody to his paternal grandmother would be appropriate.”

At the beginning of the combined hearing on mother’s section 388 petition and the selection-and-implementation hearing, Christian’s attorney said he was “tentatively in favor” of mother’s request to have Christian returned to her care. N.K.’s attorney likewise said she agreed with mother’s petition and informed the court that N.K. wanted “to keep Christian close to her.”

An assigned social worker testified that she had personally seen mother and Christian together only once during a Christmas 2016 visit but that they seemed to have a “positive relationship.” Christian was always excited to talk “at length” with the social worker about his visits with mother, he generally “seem[ed] happy” about the visits, and he was “always positive” about the visits. The social worker confirmed that there was no indication that mother had recently abused substances and that there was no recent evidence that Christian would be at risk of physical or emotional harm in mother’s care. She was concerned, however, about the history of the case, given that mother’s children had been taken from her care three times. Christian had a positive relationship with his grandparents, according to the social worker, and her only concern was with grandmother’s “overzealous” communication style. In response to questioning by N.K.’s attorney, the social worker testified that Christian and N.K. had a “strong bond” and that it would be detrimental to Christian’s well-being if contact between the siblings were discontinued.

Mother testified that she had spoken with Christian’s foster mother, and they had agreed that if Christian were returned to mother’s care it should be at the end of the school year in order to minimize any disruption to Christian’s routine. She explained that she could stay in her current sober-living house indefinitely and have Christian live with her, but she was looking into moving into her own residence along with a roommate. Christian told mother that he wanted to be returned to her care. Mother acknowledged that she had a history of abusing methamphetamine, but she emphasized that she had been clean and sober for 18 months and that she had engaged in programs to maintain her sobriety in a way she had not previously done. She was employed, attended weekly recovery meetings, and was reenrolling in therapy. Mother was opposed to Christian’s grandparents adopting him because he would be in another country and unable to see the family and friends with whom he was close.

After mother testified, the parties stated there was no further evidence to be presented, and the juvenile court called for a short break before hearing argument. After the recess, the court heard argument. County counsel argued that although mother had presented evidence of positive visits with Christian, she had not met her high burden of establishing that the beneficial-relationship exception to adoption under section 366.26, subdivision (c)(1)(B)(i), applied. She was the only person to argue that parental rights should be terminated.

Mother’s attorney argued that mother had established that the beneficial-relationship exception to the termination of parental rights applied. Christian’s counsel agreed that Christian was “extraordinarily bonded to his mother,” and that everyone believed this was the case except grandmother. He further argued that both the beneficial-relationship and the sibling-relationship exceptions to adoption applied.

According to N.K.’s counsel, N.K. felt “very strongly that the sibling relationship exception applies,” and she wanted to testify to that effect if the juvenile court would allow her to do so. County counsel objected to the presentation of more evidence since “everyone ha[d] rested their case in chief.” N.K.’s counsel stated N.K.’s concerns that Christian would not be able to see her if he moved to Denmark and that Christian’s “bond with his grandparents is just not that strong and his primary bonds are with his mother and sister. And to sever those would be devastating for him, and she [N.K.] strongly believes that.” The juvenile court never addressed whether it would accept testimony from N.K., but she did not testify.

After hearing argument, the court said it would take a recess until 1:30 p.m. to review “additional case law on the parental beneficial connection and also the sibling one.” According to the juvenile court’s minute order, however, the juvenile court denied mother’s section 388 petition before passing the matter until 1:30 p.m. A review of the reporter’s transcript does not reveal that the court ever specifically ruled on the section 388 petition.

Following the recess, the juvenile court heard additional argument, and it then issued its ruling on the selection-and-implementation hearing. The juvenile court concluded that mother had not established that her relationship with Christian outweighed the benefits of adoption and that neither the beneficial-relationship nor the sibling-relationship exceptions to adoption had been established. The court terminated mother’s parental rights as to Christian and selected adoption as the permanent plan.[4]

II.
Discussion

A.The Case Must Be Remanded for the Juvenile Court to Rule on Mother’s Section 388 Petition.

The parties first dispute whether the trial court erred in denying mother’s section 388 petition asking that Christian be returned to her care. Section 388 allows interested parties to petition for a hearing to change or set aside a prior court order on the grounds of “change of circumstances or new evidence.” (§ 388, subd. (a)(1).) “The burden of proof at any such hearing is on the moving party to show by a preponderance of the evidence both that there are changed circumstances or new evidence and that also a change in court order would be in the best interest of the child.” (In re D.B. (2013) 217 Cal.App.4th 1080, 1089.) We review a juvenile court’s ruling on a section 388 petition for abuse of discretion and will not set aside the ruling unless an abuse of discretion is clearly established. (Id. at pp. 1088-1089.)

Our ability to apply this standard here, however, is hampered because the court never ruled on mother’s section 388 petition and conflicting evidence was presented on whether Christian should be returned to mother’s care.[5] True, the juvenile court’s ultimate termination of mother’s parental rights suggests that the court was not inclined to grant mother custody of Christian, and the parties both contend in their supplemental briefing that the record is sufficient for the court to review the denial of the section 388 petition. Were we inclined to affirm the termination of parental rights, we would agree. But in light of our conclusion that the juvenile court erred in terminating parental rights, as we explain below, we conclude that it would be appropriate to remand the entire case to the juvenile court so that it may take into consideration any new evidence or changed circumstances and so that it may consider Christian’s current best interests in light of those circumstances. On remand, “[t]he court is to make specific findings to permit a reasonable review of its ruling.” (In re M.V. (2006) 146 Cal.App.4th 1048, 1062.)

B.The Juvenile Court Erred in Terminating Mother’s Parental Rights Because Uncontradicted Evidence Established the Applicability of the Beneficial-Relationship Exception to Adoption.

Mother argues that the juvenile court erred in terminating her parental rights because two exceptions to termination had been established. We agree that mother met her burden of establishing the applicability of the beneficial-relationship exception to adoption.

“At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.” (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) “Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when ‘[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ ” (Id. at p. 297.) The parties agree that we review the juvenile court’s decision for an abuse of discretion. (Cf. In re G.B. (2014) 227 Cal.App.4th 1147, 1166 & fn. 7 [reviewing beneficial-relationship exception for substantial evidence but noting that different standards of review have been applied in this context, all of which are deferential].) We are convinced that, under any standard of review, mother established the applicability of the beneficial-relationship exception. (In re Scott B. (2010) 188 Cal.App.4th 452, 469-470.)

There is no dispute that Christian is likely to be adopted. And although the Agency notes that there were periods during reunification when mother’s visitation was sporadic, there is no serious dispute that mother had recently maintained regular visitation and contact with her son, as the juvenile court found. Thus, the only issue determining the applicability of the beneficial-relationship exception is whether mother met her burden of proving that Christian would benefit enough from a continuing relationship with her to overcome the preference for adoption. She did.

“The ‘benefit’ prong of the exception requires the parent to prove his or her relationship with the child ‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.’ [Citations.] No matter how loving and frequent the contact, and notwithstanding the existence of an ‘emotional bond’ with the child, ‘the parents must show that they occupy “a parental role” in the child’s life.’ [Citations.] The relationship that gives rise to this exception to the statutory preference for adoption ‘characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.’ [Citation.] Moreover, ‘[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.’ ” (In re K.P. (2012) 203 Cal.App.4th 614, 621; see also In re Scott B., supra, 188 Cal.App.4th at p. 469 [“Because a parent’s claim to such an exception is evaluated in light of the Legislature’s preference for adoption, it is only in exceptional circumstances that a court will choose a permanent plan other than adoption.”].) “The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.)

This was undoubtedly a close case. The Agency said in November 2016 that it was not completely opposed to returning Christian to mother’s care and that it would defer to the juvenile court. The Agency changed its recommendation around two months later and advocated that mother’s parental rights be terminated, but was alone in arguing this position at the relevant hearing. We recognize, as do the parties, that mother faced a high burden to establish the exception to adoption. And we recognize that we are required to affirm the juvenile court’s order even if there is evidence in the record that would support a contrary conclusion. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) But here it was undisputed that mother and Christian shared a close relationship. The juvenile court found that “all of the reports, CASA reports and [A]gency reports—[show] that this child is well-bonded with his mother, his sister, his brother, his grandparents. He describes each one of those parents [sic] as the important people in his life.” (Italics added.) The court even stressed that a reason adoption by the grandparents would be appropriate was to allow Christion to maintain a relationship with mother. (Cf. In re C.B. (2010) 190 Cal.App.4th 102, 128 [if beneficial-relationship has been established, court may not terminate parental rights “based upon an unenforceable expectation that the prospective adoptive parents will voluntarily permit future contact between the child and a biological parent”]; In re Scott B., supra, 188 Cal.App.4th at p. 471 [adoptive parent has right to cut off contacts with biological parent after adoption]; In re Amber M. (2002) 103 Cal.App.4th 681, 690-691 [if proposed adoptions proceed, maintenance of mother-child relationship “will depend solely on both grandparents’ continued goodwill”].) The court noted that step-grandfather worked for an airline and could facilitate transportation for visits with mother and N.K. And it further observed, “Frequently when the Court finds that parental rights are terminated and places a child for adoption there’s no chance of the children seeing their parents again. This case appears to be different. I believe based on what I have read that the grandmother loves this child enough not to hurt him by disallowing him to see his sister, whom he loves, and his mother, whom he loves.” In emphasizing the bond between mother and Christian and the importance of maintaining their relationship, the juvenile court recognized the reasons for applying the beneficial-relationship exception.

The court also cited reasons why it would be inappropriate to return Christian to mother’s care, such as the facts that mother had not fully complied with her case plan, did not have clearly stable housing, and had not provided documentary evidence of attending meetings to maintain her sobriety. These factors were relevant to whether mother should regain custody of Christian—a question presented in mother’s section 388 petition that was never ruled on. The Agency, too, stresses on appeal that the paternal grandparents were committed to adopting Christian and to providing him with a stable home. But neither mother’s ability to assume custody nor the suitability of an adoptive home can justify the termination of parental rights. (In re Scott B., supra, 188 Cal.App.4th at p. 471 [even where it was clear that permitting son to resume living with his mother may never be in his best interest, still clear that beneficial-relationship exception applied]; In re Amber M., supra, 103 Cal.App.4th at p. 690.)

We recognize, of course, that at this late stage in the proceedings, after reunification services have been terminated and a selection-and-implementation hearing has been scheduled, the focus is on Christian’s need for permanence and stability. (In re G.B., supra, 227 Cal.App.4th at p. 1163.) But the undisputed evidence leads to the inescapable conclusions that this is an exceptional situation and mother has overcome the Legislature’s preference for adoption. (In re Scott B., supra, 188 Cal.App.4th at p. 469.)

In light of our holding that the order terminating parental rights must be reversed because mother established the applicability of the beneficial-relationship exception to adoption, we need not address mother’s argument that the juvenile court erred in failing to apply the sibling-relationship exception under section 366.26, subdivision (c)(1)(B)(v). Given the fact we are remanding the case for further proceedings, including making findings on the section 388 petition, nothing in this opinion shall preclude N.K. from testifying in the future or the juvenile court from considering further argument on whether applying this exception would be in Christian’s best interests.

III.
Disposition

The order terminating mother’s parental rights and denying her section 388 petition is reversed, and the matter is remanded to the juvenile court for further proceedings consistent with this opinion.

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Humes, P.J.

We concur:

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Margulies, J.

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Banke, J.

In re Christian K. A150346