Filed 5/16/22 In re E.M. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge.

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

Appellant, Alejandra C. (mother), mother of now 11-year-old E.M., appealed from the juvenile court’s November 9, 2021, orders denying her modification petition under Welfare and Institutions Code section 388[1] requesting reunification services (section 388 petition) and terminating her parental rights. After reviewing the juvenile court record, mother’s court-appointed counsel informed this court she could find no arguable issues to raise on mother’s behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)

Mother filed a letter disputing evidence contained in the reports submitted for the various hearings but does not allege the juvenile court erred in denying her section 388 petition and in terminating her parental rights.

We conclude mother failed to set forth a good cause showing that any arguable issue of reversible error arose from the section 388 petition and termination hearing. (Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.

PROCEDURAL AND FACTUAL SUMMARY

In March 2020, the Kings County Human Services Agency (agency) responded to a report that mother’s boyfriend, Oscar, choked then 9-year-old E.M. E.M. had a bruise on his neck the size of a penny, which he attributed to Oscar. The agency obtained a protective custody warrant and took E.M. and his 10-year-old sister, J.R., into protective custody. J.R. was released to her father and E.M. was placed with a maternal aunt. The whereabouts of E.M.’s alleged father were initially unknown.

The juvenile court exercised its dependency jurisdiction over the children, removed them from parental custody and ordered family reunification services for mother and family maintenance services for J.R.’s father. Mother’s services plan required her to participate in domestic violence, mental health, and parenting services. At the six-month review hearing in October 2020, the court continued mother’s reunification services as to E.M. to the 12-month review hearing, which was set for April 1, 2021. The court terminated reunification services as to J.R. for both parents, granted father sole legal and physical custody of her and terminated its dependency jurisdiction.

By April 2021, mother had completed her reunification services and progressed from supervised to unsupervised overnight visits. However, despite claiming that she was no longer in a relationship with Oscar and had a restraining order against him, she continued to allow him in her home around E.M. In late March 2021, the agency was informed that Oscar was back in mother’s home and that E.M. was afraid. As a result, the agency reinstated supervised visitation.

The 12-month review hearing was continued until April 23, 2021. Earlier in the month, E.M. was placed in foster care after his maternal aunt informed the agency that she could no longer care for him.

On April 23, 2021, following a contested 12-month review hearing, the juvenile court terminated mother’s reunification services and set a section 366.26 hearing for August 12, 2021. Mother did not seek extraordinary writ review of the court’s order setting the section 366.26 hearing.

The section 366.26 hearing was continued until October 28, 2021. Meanwhile, on October 6, 2021, mother filed a section 388 petition asking the juvenile court to provide her an additional six months of reunification, claiming services she completed addressing her difficulty in communicating and understanding had helped change her behavior. After intensive counseling, mother better understood that communicating with Oscar was wrong. She no longer had any contact with him and had made E.M. her priority. She was concerned that E.M.’s foster family was telling him that his family did not want or love him. She apologized for her inability to understand the gravity of the situation and begged for the court’s mercy.

The juvenile court set a hearing on mother’s section 388 petition to be heard on the date set for the section 366.26 hearing. The agency recommended the court deny mother’s section 388 petition, terminate her parental rights and free E.M. for adoption. E.M. wanted to be adopted by his care providers and they were willing to adopt him.

The combined section 388/366.26 hearing was conducted on November 9, 2021, as a contested hearing. E.M.’s father made his first appearance and testified. Mother testified she was no longer in a relationship with Oscar and he was never present when she had unsupervised visits with E.M. She did not believe E.M. wanted to be adopted because he told her when they visited that he wanted to return home to her. She attended all the visits and had a strong bond with him. She had learned from her classes to be more loving and to make E.M. feel safe.

The adoptions social worker testified E.M. understood the implications of being adopted and said he wished to stay with his care providers. She did not believe E.M. felt well-connected to mother because he had to be persuaded to attend visits with her and he avoided physical contact with her. He preferred to sit close to his sister during visits. When mother tried to rub his back, he shied away and turned to the side or got up. E.M. generally enjoyed visits with mother but was bothered by her repeated requests that he say he did not want to be adopted but wanted to be placed with maternal relatives, which made him nervous around mother. E.M. did not look to mother as a parental figure and did not turn to her for comfort. He had concerns about her life choices and how she raised him. The adoptions social worker did not believe it would be detrimental to E.M. if his relationship with mother were terminated. He stated that if the adoption went through, he did not want to continue visiting mother. Any ongoing relationship with mother would be a reminder of the trauma he endured while in her care. However, he expressed a desire to continue a relationship with his siblings and the paternal side of his family. The adoptions social worker believed that any harm E.M. might suffer from the loss of his relationship with mother could be remedied through therapy or counseling.

The juvenile court denied mother’s section 388 petition, finding she had not shown the circumstances had changed or that it was in E.M.’s best interest to attempt reunification. The court raised E.M.’s father to presumed father, terminated parental rights, finding by clear and convincing evidence E.M. was likely to be adopted, and found the beneficial parent-child relationship exception to adoption did not apply. In ruling on the exception, the court acknowledged that E.M. had been in mother’s care most of his life prior to the dependency action and that she maintained regular visitation and contact with him. However, the court did not find that continuing the relationship benefitted E.M. He was aware of what was best for him, which did not include an ongoing relationship with mother. Given the totality of the circumstances, the court could not find that mother established the exception to adoption.

DISCUSSION

An appealed-from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to raise claims of reversible error or other defect and present argument and authority on each point made. If the appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

Here, the juvenile court conducted a combined hearing under sections 388 and 366.26. Section 388 allows a parent to petition the court to change a prior order on the grounds that there is new evidence or circumstances have changed such that the proposed new order would better serve the child’s interests. The parent bears the burden of proof by a preponderance of the evidence. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Under section 366.26, the court’s focus is on whether it is likely the child will be adopted. If the court finds the child is adoptable, it must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the child under any of the circumstances listed in section 366.26, subdivision (c)(1)(B).

The juvenile court denied mother’s section 388 petition, finding she failed to establish that providing her family reunification services inured to E.M.’s best interest. Mother’s trial counsel argued unsuccessfully the juvenile court should apply the beneficial parent-child relationship exception to adoption. The beneficial parent-child relationship exception applies if termination of parental rights would be detrimental to the child because the parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) A parent asserting this exception must show he or she “occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent.” (In re C.F. (2011) 193 Cal.App.4th 549, 555.) The court found E.M. was adoptable and the beneficial parent-child relationship exception did not apply and terminated parental rights.

Mother does not argue the juvenile court erred in denying her section 388 petition or terminating her parental rights. Instead, she tries to make the case that E.M. is not capable of deciding what is best for him because he has behavioral problems and a language disorder which interfere with his ability to be understood. Included with her letter are medical reports, none of which are included in the appellate record, that indicate E.M. was born with a cleft palate, which was repaired in 2011. He also had bilateral myringotomy tubes inserted in 2013 and 2015 because of middle ear infections.

Mother also contends the social workers were not responsive to her or cooperative with her in recognizing E.M.’s behavioral problems, citing the jurisdictional/dispositional report filed on April 3, 2020. She denies statements included in an addendum report to the 12-month review hearing filed on April 13, 2021, stating that she prompted E.M. to say he felt safe with her, that she wanted Oscar to be E.M.’s stepfather, and that Oscar took E.M.’s phone away from him while he was with mother on an extended visit.

Mother is concerned that E.M. is not able to make age-appropriate decisions and asks this court to take his medical records into consideration and grant her leave to file a supplemental opening brief to address those concerns as well as the many errors that arose in this case. We do not find good cause to invite supplemental briefing.

By the time a case reaches the section 366.26 hearing, the juvenile court has determined based on extensive evidence that the dependent child cannot be safely returned to the parent’s custody. Where, as here, there were multiple review hearings, the parent has had an opportunity to challenge any of the evidence contained in the agency’s reports. Failure to challenge the evidence operates as a forfeiture, preventing the parent from challenging it at a subsequent hearing. Such is the case here. At no time did mother or her attorney object to the content of the agency’s reports. Consequently, they were entered into evidence to be relied on by the court in making its rulings. Mother is now precluded from challenging that evidence on appeal.

Further, mother did not raise concerns before the juvenile court about E.M.’s speech impairment or behavior. Even if she had, the evidence would not support her claim that they were a barrier to his ability to understand or be understood. Mother herself acknowledges in her letter brief that E.M. is very intelligent. Indeed, he is described by the agency as “an intelligent, sweet, thoughtful, respectful, and articulate ten (10) year old male with no known medical concerns and/or developmental delays. E.M. is diagnosed with ADHD[2] and a speech impairment, however, both diagnoses are manageable with medication and/or services.” There is nothing in the record that supports mother’s claim he is not capable of making decisions, including whether adoption is best for him.

In sum, mother has not raised any arguable issues stemming from the section 388/366.26 hearing. Further, though we are not required to, we have reviewed the record as it relates to the combined hearing under sections 388 and 366.26 and we have found no arguable issues for briefing. (Phoenix H., supra, 47 Cal.4th at

pp. 841–842.) Accordingly, we dismiss the appeal.

DISPOSITION

This appeal is dismissed.

* Before Levy, Acting P. J., Franson, J. and Meehan, J.

[1] Statutory references are to the Welfare and Institutions Code.

[2] Mother contends in her letter brief as she did during the proceedings that E.M. is autistic. However, he was evaluated for autism and did not meet the criteria for the diagnosis.