Opinion
A168407
04-15-2024
In re W.R., a Person Coming Under the Juvenile Court Law. v. H.G., Defendant and Appellant. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. J2100421)
MILLER, J.
Seven-year-old W.R. (Minor) was removed from the care of her mother, H.G. (Mother), as a result of Mother's substance abuse and neglect. After Mother's reunification services were terminated and a hearing was set under Welfare and Institutions Code section 366.26, Mother filed a petition under section 388 asking for additional reunification services. The juvenile court denied Mother's petition and terminated her parental rights, and Mother now appeals. We shall affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Detention
In September 2021, the Contra Costa County Children and Family Services Bureau (Bureau) filed a dependency petition on behalf of Minor, then seven years old, alleging that Mother had a substance abuse problem and mental health issues that impaired her ability to provide care and support for Minor, and put Minor at substantial risk of harm. (§ 300, subd. (b)(1).) The petition also alleged that Minor's father (Father) had a substance abuse problem that placed Minor at substantial risk of harm in his care.(Ibid.) At the detention hearing, the juvenile court ordered Minor detained and ordered supervised visitation for Mother.
Father, whose parental rights were terminated at the same time as Mother's, is not a party to this appeal, and we discuss facts pertaining to him only insofar as they are relevant to this opinion.
A detention/jurisdiction report was prepared for the hearing and reviewed by the juvenile court, but is not included in the record on appeal.
B. Jurisdiction and Disposition
In its disposition report, the Bureau reported on Mother's previous child welfare history, which had begun in 2010 with allegations that Mother left Minor's older half-sister outside, unsupervised and wearing only a t-shirt, while Mother slept inside. In 2013, after it was reported that the half-sister was locked in the house and the parents were using drugs, Mother admitted having a substance abuse problem and agreed to an Intensive Family Services Plan, but did not comply with it. A referral in 2014, shortly after Minor's birth, concerned allegations that Minor was neglected. Mother, then age 30, admitted using methamphetamine and heroin, and said she had used on and off since she was 14. A referral in 2020 included allegations of general neglect and abuse of Minor, with reports that Mother and Father engaged in domestic violence in Minor's presence and were using substances. Mother and Father reported they were in recovery while acknowledging recent relapse, and were referred to services. Services were closed due to noncompliance. None of those prior referrals resulted in the filing of a dependency petition. Apart from the child welfare history, Mother had four drug- or alcohol-related convictions from 2005 to 2014.
The Bureau reported that Minor was staying with maternal grandmother and would soon be placed in a foster home. Minor had been referred for a mental health assessment, and was diagnosed with "Adjustment Disorder, unspecified trauma and stressor related disorder." She had some sexual acting out behaviors and was referred for an assessment. Although physically healthy, she was experiencing developmental delays in areas including speech, short-term memory, and school work. The Bureau reported that although she was seven years old, her development appeared to be at the level of a child aged three or four. There was concern that she may be on the autism spectrum or "struggling with PTSD based on her abuse/neglect."
The Bureau reported it had no contact with Mother for several weeks, and that during the most recent meeting Mother appeared to be under the influence and had difficulty holding a conversation. Mother did not appear for a follow-up appointment, and had not responded to the Bureau's attempts to reach her by phone and email. Mother had been referred to services, including drug testing, but had failed to show for seven tests. Mother visited Minor weekly, except for one visit Mother missed because she failed to confirm. The supervised visits were reported as being "appropriate."
At a combined jurisdiction/disposition hearing on December 9, 2021, Mother admitted to amended allegations under section 300, subdivision (b)(1), and her attorney stipulated that, as set forth in the jurisdictional report, Mother had a significant drug abuse problem and she had agreed to undergo a mental health assessment. The court ordered family reunification services and set a six-month review hearing for May 26, 2022.
C. Six-Month Review
In advance of the six-month review hearing, the Bureau reported that in March 2022 Minor had been placed in the home of a non-relative extended family member, and that the caregivers stated they were willing to keep Minor permanently if she could not be returned to her parents' care. Minor's court appointed special advocate reported that Minor had bonded with her caregivers and felt safe with them. The Bureau reported that Mother's visits with Minor were consistent and appropriate, and that Minor looked forward to the visits. Minor also had consistent visits with her older half-sister, who had been removed from Mother's care at the same time as Minor, and with her maternal grandmother.
Mother's parental rights as to Minor's half-sister were eventually terminated in March 2023, two months before the section 366.26 hearing for Minor.
The Bureau reported that Mother had made little progress on her case plan, which included parenting education, individual therapy, substance abuse assessment, substance abuse testing, and a 12-step program. Although Mother was scheduled to have bi-weekly individual therapy sessions, she had attended only two: one in early February and one in late April. Mother had not entered a parenting education program or had a substance abuse assessment or attended 12-step meetings, despite having received referrals from the Bureau. Mother had also missed all her random substance abuse testing dates except for two in late December 2021, when she tested positive for methadone. Mother informed the Bureau that she was attending a clinic for daily methadone treatment to prevent the use of opiate pain killers. Mother reported that she was receiving monthly psychiatric treatment, and that she had been diagnosed with mood disorder, major depressive disorder, PTSD, anxiety, and schizoaffective disorder, but the Bureau was unable to verify Mother's report. The Bureau recommended continuing Mother's reunification services.
At the hearing, Mother's counsel submitted on the Bureau's report. The court continued Mother's reunification services and scheduled a 12-month review hearing for November 2022.
D. Twelve-Month Review
In a report submitted for the 12-month review hearing, the Bureau reported that Mother had been living with Father until mid-2022, when they were evicted from their place of residence and then separated. Mother stated she remained homeless. About two months after the eviction, Mother and Father were involved in a domestic violence incident and mother was placed in a safe house, but breached the safe house guidelines by having Father come to pick her up.
Mother had made little progress with her case plan. She had completed a parenting education program in August 2022. Although Mother said she was receiving individual therapy weekly, her therapist reported that she consistently failed to show up, and that Mother had attended only six sessions from June through mid-October 2022. The therapist reported that Mother's progress toward her treatment goals had been minimal because of her inconsistency in attending appointments. Mother said she continued to receive monthly psychiatric treatment, but the Bureau was unable to verify Mother's report.
Mother had enrolled in an outpatient substance abuse program in September 2022 and was "somewhat regular" in her attendance for about 3 weeks. By mid-October the program had determined Mother "required a higher level of care and was not in the right mind to follow instructions," and was planning to discharge Mother from the program unless she engaged. Mother informed the Bureau she was hoping to enter a residential program. Mother said she was attending a 12-step program and attending a methadone clinic, but did not provide verification. Mother missed all her substance abuse test dates from May through October 2022.
The Bureau reported that Mother was "somewhat consistent" in visiting Minor, and the visits went well when they occurred. However, Minor refused to visit for up to nine weeks during the reporting period, saying that her parents were doing nothing and using drugs.
Minor had lived with the same caregivers since March 2022, and wanted to be adopted by them. Minor's court appointed special advocate reported that Minor had bonded with the other children in her placement and taken on a role in the family; that Minor was very vocal about feeling safe and wanting to maintain that safety; and that Minor "consistently stated she only wishes to reunite with her parents if they are healthy and safe, no matter how much she misses them."
Mother did not appear at the 12-month review hearing on November 10, 2022. Her attorney reported that she had lost all contact with Mother. The court terminated Mother's reunification services, and scheduled a section 366.26 hearing. The court adopted the Bureau's recommendation that the
Bureau consider Minor's wishes and input from her attorney and treating therapist in establishing the frequency and length of visits with Mother.
E. Mother's Section 388 Petition and Section 366.26 Hearing
In March 2023, Mother filed a section 388 petition requesting the reinstatement of reunification services, visitation, and family counseling. Mother alleged that circumstances had changed because she had entered and completed a residential treatment program that included individual counseling, drug testing, group treatment, parenting, relapse treatment, AA meetings, domestic violence, and anger management, and also alleged that reinstating services would be in Minor's best interest. The trial court set the matter for a prima facie hearing on May 18, 2023, the same day as the contested section 366.26 hearing.
1. The Bureau's Section 388 Opposition and Section 366.26 Report
In May 2023, the Bureau filed a memorandum opposing the section 388 petition. The Bureau reported that Mother entered a 90-day residential substance abuse treatment program in December 2022, but was discharged in January 2023 after relapsing on drugs she found in a storage facility. In February 2023 Mother entered a different residential treatment program, where she remained until late March, when she graduated from the program and began an intensive outpatient program. Her counselor at that program reported that Mother was consistently participating in services. The Bureau acknowledged that Mother had now spent more than three months in residential treatment or outpatient services, but stated that in view of Mother's years of substance abuse and neglect of her children, and her prior failed attempts at sobriety, her circumstances were "changing," but the changes were not substantial enough to justify additional services. The Bureau recommended the termination of parental rights with adoption as Minor's permanent plan, based on its conclusion that Minor's need for permanency after 20 months of foster care outweighed her relationship with Mother.
In its report for the section 366.26 hearing, the Bureau recommended the termination of parental rights, with adoption as Minor's permanent plan. The Bureau reported that Minor was in good health, and that her physical, social/emotional, and cognitive/intellectual development were age-appropriate. Minor's caregivers wanted to adopt her. Minor's therapist reported that Minor expressed "a lot of worries about the future, including . . . that she will become homeless" and that Minor was excited to be adopted. The therapist also reported that Minor had "unresolved feelings about her biological parents" and often wondered about their well-being; and made statements like, "I don't live with them because they chose drugs over me." The therapist opined, "Given [Minor's] age, I don't think she understands the permanency of adoption, but the topic comes up in our conversation periodically."
Starting in June 2022, Minor occasionally canceled scheduled visits with Mother. Other times, visits were canceled because Mother failed to confirm the visits, or arrived too late, or failed to log in to a video call. After Mother arrived late to two visits in October 2022, Minor consistently refused visitation and had not had any contact with Mother since then. The Bureau reported that Minor was clear that she did not want to return to Mother.
Minor's services team included her therapist, her maternal grandmother, her half-sister, her social worker, and the entire prospective adoptive family. The Bureau reported that Minor loved her prospective adoptive parents, whom she called "mommy" and "daddy"; that she felt safe and secure in their home; and that she wanted to be adopted by them.
Minor's half-sister and maternal grandmother, with whom Minor had regular visits, supported Minor's placement and her wish to be adopted by her caregivers.
2. Combined Section 388 and Section 366.26 Hearing
At the May 18, 2023 hearing, the juvenile court first addressed the section 388 petition. After hearing argument from counsel, the court granted Mother's request for an evidentiary hearing to be held that day. The court stated that it had read and considered the petition and the attachments, and heard testimony from Mother and from the social worker. A packet of documents was admitted into evidence that reflected Mother attending an intensive outpatient program, participating in drug testing and attending AA meetings, as well as her completion of parenting and anger management classes and graduated from a residential program. The packet also included a lease showing that Mother was currently living on her own in a two-bedroom apartment.
a. Mother's Testimony
Mother testified that she was participating in an outpatient program and a methadone clinic, both involving drug testing. She testified that she had last relapsed on fentanyl in January 2023, but had been clean since then. Mother attributed her relapse to her fears about the recovery process, and testified that she had asked herself, "Do I want to be sober? Can I be sober? Am I going to be sober? Am I going to continue to live a sober lifestyle? Is this something that I can do for me that I can live a life that is right, so that I can offer the proper life for my children, child?" Mother testified that she had been in recovery programs before, and had relapsed after periods of sobriety. She testified that she started using drugs when she was 14 years old. She was in a recovery program in 2013-2014, and had a "slip-up" after Minor was born in 2014, but then got back into a program in 2015 and was sober until 2019. That four-year period was her longest sober time, and then in 2019 she had "a very serious relapse," which, she testified, "caused a lot of damage, and . . . destroyed my family."
Mother described positive and loving interactions with Minor during visits. She testified that at every visit, Minor would ask when she could come home, and she would always respond, "I'm working hard to get everything in order," even though that was not an honest answer. Mother testified that providing further reunification services would be in Minor's best interest because of the "unbreakable" bond between them as mother and child, and "[b]ecause I can show the Courts that I am fit [and that] I can be an exceptional mother."
b. Social Worker's Testimony
The social worker testified that she had been assigned the case since January 2023, and that during that time Minor had no visits with Mother. The social worker met with Minor once a month. On her first meeting with Minor, Minor told her that Mother prioritized drug use over her. When Mother contacted the social worker to tell her that she had entered a treatment program, the social worker told Minor. The social worker did not provide Minor with any other information about Mother's participation in the program or about Mother's drug testing. When Minor was told that Mother was planning to file a motion to request more services because she was in treatment, Minor was clear that she did not want to return to Mother, who, Minor said, had been given too many chances. Minor's only response to the information that Mother was participating in a program was to say that she does not want to go back to Mother. The social worker would ask Minor if she wanted to visit Mother, and Minor responded that she did not.
c. Ruling
After hearing argument from counsel on the section 388 petition, including argument from Minor's counsel against granting the petition, the court acknowledged Mother's recent progress, which the court characterized as "impressive" and "honorable," but denied the petition. The court found that in view of Mother's long history of substance abuse with periods of sobriety, Mother's recent four-month period of sobriety constituted "changing" circumstances, not changed circumstances for the purposes of section 388. The court also stated that based on the record it could not find that providing additional services to Mother would be in Minor's best interests, because it would not promote Minor's need for permanency and stability.
The court then turned to the section 366.26 hearing. The Bureau submitted on its report, and no further evidence was presented. After hearing argument from counsel, including argument from Minor's counsel supporting the termination of parental rights, the juvenile court stated that it construed a reference by Mother's counsel to In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) as an argument for application of the beneficial relationship exception to selecting adoption as Minor's permanent plan. The court concluded that the exception did not apply; that it was in Minor's best interest to be adopted; that Minor was likely to be adopted and that her current caregiver had agreed to adopt her. The court ordered termination of Mother's parental rights, and this appeal timely followed.
DISCUSSION
Mother argues that the juvenile court's denial of her section 388 petition was an abuse of discretion, and that the juvenile court erred in concluding that Mother had not demonstrated that the parental benefit exception applied to bar the termination of her parental rights.
A. Section 388 Petition
1. Applicable Law and Standard of Review
Section 388 authorizes the parent of a child who is a dependent of the juvenile court to petition the court to change, modify, or set aside its previous orders. (§ 388, subd. (a)(1).) It is the petitioner's burden to demonstrate by a preponderance of the evidence that there is new evidence or changed circumstances, and that the proposed change in orders would be in the child's best interests. (In re Mickel O. (2011) 197 Cal.App.4th 586, 615 (Mickel O.), citing § 388 and cases.) A petitioner under section 388 "must show changed, not changing, circumstances." (Ibid.)
In determining whether a parent has made the necessary showing under section 388, "the juvenile court may consider the entire factual and procedural history of the case," including "factors such as the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds with the child, the nature of the change of circumstance, and the reason the change was not made sooner." (Mickel O., supra, 197 Cal.App.4th at p. 616.) "In assessing the best interests of the child, 'a primary consideration . . . is the goal of assuring stability and continuity.'" (Ibid.)
We review the denial of a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We will not disturb the juvenile court's ruling unless it is "clearly established" that"' "the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" (Ibid.)
2. Analysis
In arguing that the trial court erred in denying her petition, Mother recounts the evidence that she presented regarding a change in circumstances, and asserts that the record demonstrates that she presented evidence to warrant the granting of her petition. She does not, however, address the evidence that she had been abusing substances since she was 14, and that she had previously participated in recovery programs and had periods of sobriety followed by relapses. In the context of Mother's longstanding history of substance abuse, and her failure to make progress in her case plan by the time of the 12-month review hearing, we see no abuse of discretion in the trial court's conclusion that Mother's four-month period of sobriety, which included time she spent in an inpatient treatment program, did not demonstrate changed circumstances.
Even if we assumed that Mother's recent period of sobriety constituted changed circumstances, the juvenile court would not have erred in denying the petition, because the court reasonably determined that extending reunification services would not be in Minor's best interest. Mother argues that further services would be in Minor's best interest because Minor lived with Mother for seven years, because Minor enjoyed her visits with Mother, and because of their shared mother-daughter bond. But Mother was abusing drugs during part of those seven years while Minor lived with her, including from 2019 until Minor was removed from her care in 2021. Minor herself had reported that Mother was always sleeping; that Mother smoked "black stuff" in a glass pipe, and that Minor would go outside because the black stuff made her head "confused"; and that Mother used needles to take what Mother told Minor was "diabetes medication," and which, Minor said, made Mother "tired and cold" and go to sleep. Minor worried about Mother's welfare, and worried that she would die because of her drug use. Minor expressed dislike for Mother, who "made me cry and [was] given too many chances." Minor also worried that she herself would become homeless. In contrast, Minor felt safe and happy with her prospective adoptive family, with whom she had lived for more than a year, and had a strong bond with them. And although Minor had at one time enjoyed her visits with Mother, by the time Mother filed her section 388 petition-four months after reunification services had been terminated-Minor had not visited with Mother for more than five months. Visits had stopped in part because, starting in October 2022, Minor consistently refused to attend them. But that consistent refusal occurred only after Mother had missed visits or arrived late to visits. In these circumstances, we see no abuse of discretion in the juvenile court's determination that Mother had not shown it would be in Minor's best interests to resume Mother's reunification services.
Mother argues that Minor should have been told of Mother's progress once Mother entered residential treatment in February 2023. She cites no authority to support this point. Further, Mother disregards the social worker's testimony that Minor's response to learning that Mother was participating in a program was to say that she does not want to go back to Mother, and that Minor continued to decline to visit. Mother also suggests that Minor should not have been allowed to decide for herself if she would visit Mother, but she did not raise that issue in the juvenile court until the section 366.26 hearing. If Mother had a concern about that, she should have raised it earlier. In its November 2022 orders following the 12-month review hearing, the juvenile court authorized the Bureau to consider Minor's wishes with respect to visitation. It was Mother's burden to request any change to the visitation order before the section 366.26 hearing, but she made no such request. (In re Sofia M. (2018) 24 Cal.App.5th 1038, 1046 ["[w]hen a child refuses visitation, it is the parent's burden to request a specific type of enforcement, or a specific change to the visitation order"].) And nothing in the record suggests that a different outcome would have resulted from forcing Minor to attend visits or from providing Minor with information about Mother's progress, which dated from February 2023, months after Minor stopped visiting Mother and reunification services had been terminated.
In sum, Mother has not shown that the juvenile court abused its discretion in denying her section 388 petition.
B. Parental Benefit Exception
1. Applicable Law and Standard of Review
"The beneficial relationship test is an exception to the presumptive rule of terminating parental rights after reunification efforts have failed, in order to free a child for adoption." (In re Eli B. (2022) 73 Cal.App.5th 1061, 1067 (Eli B.).) To establish that the exception applies, a parent must demonstrate three elements by a preponderance of the evidence: (1) "regular visitation and contact with the child, taking into account the extent of visitation permitted"; (2) "that the child has a substantial, positive, emotional attachment to the parent"; and (3) "that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.) If the juvenile court concludes that the beneficial relationship exception does not apply, it is not required to recite specific findings as to "any or all of the three elements of the exception." (In re A.L. (2022) 73 Cal.App.5th 1131, 1156.)
"We review the juvenile court's ruling on the first two elements for substantial evidence. [Citation.] We review its ruling on the third element under a hybrid standard, reviewing its factual determinations concerning the detriment analysis for substantial evidence but its ultimate weighing of the relative harms and benefits of terminating parental rights for an abuse of discretion." (Eli B., supra, 73 Cal.App.5th at p. 1068.)
2. Analysis
Here, the juvenile court found that Mother engaged in regular visitation when Minor was willing to have visits, but that Mother had not met her burden to demonstrate the second and third elements. The court stated that it based its conclusion as to those two elements on "the entire factual record in this case, to include the visitation, [Minor's] response and current position regarding the visitation, and the qualitative nature of the relationship she has with [Mother]."
Substantial evidence, in the form of the Bureau's reports and the testimony of the social worker, supported the juvenile court's finding that Minor did not have a substantial, positive, emotional attachment to Mother. That Minor had some attachment to Mother is evident from Minor's positive visits with Mother early in the dependency proceeding and from Minor's worrying about Mother's welfare because of Mother's drug use. But the record reflects that Minor expressed dislike of Mother and also expressed the belief that Mother had chosen drugs over her. There was evidence that Minor did not feel safe with Mother, and did not want to visit her or live with her. All of this is substantial evidence that Minor's attachment to Mother was not a substantial, positive, emotional attachment of the sort that "impl[ies] that the child would benefit from continuing the relationship." (Caden C., supra, 11 Cal.5th at p. 636.)
Substantial evidence also supports a finding that there was a benefit to Minor in the stability and permanence of an adoptive home with the people who had cared for her since March 2022. There was evidence from the Bureau's reports that Minor "feels safe and secure" in her placement, and that she wanted to be adopted by her caregivers, as well as evidence that Minor's half-sister and maternal grandmother, with whom Minor consistently visited, supported Minor's placement and wanted her to be adopted by the current caregivers.
Mother points out that the court was required to assume that a termination of parental rights would end Minor's relationship with Mother (Caden C., supra, 11 Cal.5th at p. 633), and argues that losing the relationship will necessarily cause trauma for Minor. But the fact that there may be detriment to Minor in terminating her relationship with Mother is not dispositive: the juvenile court is required to weigh the detriment of severing Minor's relationship with Mother against the benefits of adoption (id. at p. 636), and that is what the court did, as reflected in its statement that it had "considered the detriment of severance of the relationship . . . against the backdrop of the benefits conferred to [Minor] and the permanency associated with the benefits of adoption." On the record here, the juvenile court did not abuse its discretion in concluding that the benefit to Minor of adoption outweighed the detriment of terminating her relationship with Mother.
DISPOSITION
The orders denying Mother's section 388 petition and terminating her parental rights are affirmed.
WE CONCUR: Richman, Acting P.J., Mayfield, J. [*]
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.