Dependency Case Law

In re Amber M. (Nov. 12, 2002) 103 Cal.App.4th 681 [127 Cal.Rptr.2d 19]. Court of Appeal, Fourth District, Division 1.

The juvenile court denied the mother’s modification petition (Welf. & Inst. Code, § 388) and terminated her parental rights (§ 366.26). In 1999, the three children, who were five years old, two and one-half years old, and seven months old, were adjudged dependents of the court. The children were eventually placed with their maternal grandmother. In January 2000, after relapsing to drug use while the middle child was on a trial visit, the mother took that child to live with his maternal grandfather. The mother continued to have relapses and spent the year in and out of residential treatment. At the 18-month review hearing, the court ordered a section 366.26 hearing to be held. The mother filed a section 388 petition, requesting that the court vacate its order to hold a section 366.26 hearing and place the children with her, or alternatively, that it provide her with additional services under section 366.3. The mother alleged that her circumstances had changed because she had obtained suitable housing, maintained 372 days of sobriety, completed treatment programs, and participated in therapy with her children. The juvenile court denied the mother’s section 388 petition and terminated her parental rights under section 366.26. The children remained with their grandparents, who lived separately; each grandparent wished to adopt the respective grandchildren living with them. On appeal, the mother alleged that the court abused its discretion by denying her section 388 petition and by terminating her parental rights without receiving information about the oldest two children’s wishes (§ 366.26 (h)), deprived her of her constitutional right to call the oldest child as a witness, and erred by failing to find the children would benefit from a continued relationship with her.

The Court of Appeal held that the juvenile court did not abuse its discretion by denying the section 388 petition and did not deprive the mother of her constitutional rights by denying her request to call the oldest child as a witness. However, the appellate court did find that the juvenile court erred by declining to apply the section 366.26 (c)(1)(A) exception, and reversed the judgment terminating parental rights with an order that a new section 366.26 hearing be held.

Section 388 provides that the juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstances and that the modification would promote the child’s best interest. After termination of services, the focus shifts from the parent’s custodial interest to the child’s need for permanency and stability. The appellate court concluded that there was sufficient evidence that the mother’s parenting deficiencies had not been fully remedied by the time of the section 388 hearing. The appellate court did not believe that returning the children to the mother’s custody would promote their best interest, in light of the fact that she abused drugs, relapsed several times despite treatment efforts, was still in the beginning stages of sobriety, and had supervised visitation with the children for most of their dependency. It also noted that the both the social worker and Court Appointed Special Advocate (CASA) recommended against the children’s return to the mother, reporting that the children had been out of the mother’s care for more than two years and were very attached to their grandparents. Therefore, the appellate court concluded that the juvenile court did not abuse its discretion in finding that the change in circumstances was insufficient to modify the order.

Additionally, the juvenile court refused to receive evidence about the wishes of the two oldest children regarding the termination of their mother’s parental rights and their probable adoption. Section 366.26(h) states that, at the section 366.26 hearing, the court shall consider the wishes of the child. However, a direct statement from the child is not required where it is contrary to the child’s best interest. Based on reports from the social worker and the children’s therapist, the appellate court concluded that there was enough evidence that the children were emotionally unable to understand the permanency issue to support the juvenile court’s decision not to receive evidence about their wishes.

The juvenile court also denied the mother’s request to call the oldest child as a witness at the section 388 hearing. The mother made the request on the second day of the hearing. Counsel for the child and the agency objected, noting that the child was not on the witness list and had not attended the Kids in Court program. The court denied the mother’s request as untimely. The mother made the same request on the second day of the section 366.26 hearing. Again, counsel for the child and the agency objected. The juvenile court denied the mother’s request as untimely and possibly detrimental to the child’s health. Although the appellate court felt that there was sufficient time for an investigation given the three–four week time span between each request and the conclusion of the hearing, it held that there was enough evidence that testifying would be detrimental for the child. The appellate court upheld the juvenile court’s decision to deny the mother’s request.

Last, the juvenile court declined to apply the section 366.26(c)(1)(A) exception to determine whether termination of parental rights was proper. Section 366.26(c)(1) allows termination of parental rights upon clear and convincing evidence of adoptability. However, section 366.26(c)(1)(A) provides an exception if the parents have maintained regular visitation and a beneficial relationship with the child. The appellate court concluded that the mother had maintained regular visitation and had met her burden of showing a beneficial relationship. There was evidence that the two oldest children still shared a strong attachment to the mother and had difficulty separating from her. The mother visited as often as she was allowed, acted in a loving, parental way, and did everything that was asked of her. Therefore, although the mother was not ready for the children to return to her custody, the appellate court felt that the mere suitability of the grandparent’s home was not enough to justify the termination of the mother’s rights. Accordingly, the appellate court reversed the juvenile court’s termination of parental rights and remanded for a new section 366.26 hearing that must include a finding of whether the section 366.26(c)(1)(A) exception was demonstrated. All other aspects of the juvenile court’s ruling were affirmed.