Opinion
A159705
12-30-2020
In re A.S., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. M.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKJVSQ191809301)
Marty S. appeals the summary denial of two petitions to modify an order bypassing reunification services and the subsequent termination of her parental rights. She contends the juvenile court erred when it denied her petitions without an evidentiary hearing, terminated her parental rights without considering her daughter's wishes, and failed to apply the beneficial relationship exception to the general preference for adoption. The challenged orders were supported by the evidence and reasonable exercises of the court's discretion, so we affirm.
BACKGROUND
On March 15, 2019, officers found Mother passed out in the driver's seat of a car with the engine running. A man was also passed out in the car, and six-year-old Amy and two-year old Zaden were asleep in the back seat. Officers found a glass pipe with white residue in it and a lighter in Mother's lap and a small baggie of white crystalline substance in the driver's side door pocket.
The children were detained and the Mendocino County Health and Human Services Agency (the Agency) filed a juvenile dependency petition alleging the children were at risk due to Mother's substance abuse, neglect, and domestic violence. At the April 25, 2019 jurisdiction hearing Mother submitted to the petition as amended. The court found true allegations under section 300, subdivision (b) that Mother's substance abuse prevented her from providing care for the children. The court also found true allegations regarding the March 15 incident, Mother's admitted history of drug abuse and relapse, domestic violence, and multiple child welfare cases that had resulted in Amy's removal from Mother's care between March 2012 and January 2015 and the previous removal of three other children from Mother's care.
Additional allegations and findings related only to the children's fathers are not relevant on this appeal.
The Agency's report for the dispositional hearing stated that Mother's extensive history of violent relationships with men had repeatedly placed the children in harm's way. This was Mother's seventh child dependency case. Five children had previously been permanently removed from her care. While the current case was being investigated Mother told a social worker that she knew she was incapable of maintaining her sobriety and being in a safe relationship without oversight. She had recently been removed from a treatment program for bringing in male company. Amy and Zaden were in temporary foster care and an older daughter was placed with her non-offending father.
The Agency reported that over the previous years Mother repeatedly left the children unsupervised and exposed them to her substance abuse and her unhealthy relationships. Mother presented herself as being motivated to change and engage in services, but "has repeatedly demonstrated a lack of ability to follow through with making permanent behavioral changes which resulted in five children either being removed from her care or failing to reunify with the child. This unhealthy cycle repeatedly has placed children in danger of being abused and/or neglect[ed] due to their mother's dysfunctionality and inability to make lasting changes as opposed to being able to manipulate the system. Throughout 2017 and 2018, there [were] repeated incident[s] in which [M]other violated her lease agreement through domestic violence which resulted in the Ukiah Police Department being called. In addition, other tenants found and brought back her toddler son, Zaden, as she was unaware of him wandering off. This ultimately resulted in her losing her housing." The Agency recommended that Mother not be offered reunification services.
On August 9 and September 5, 2019, the Agency filed addenda to the disposition report that addressed Mother's participation in services and visitation and concluded with the continued recommendation that she be bypassed for reunification services. "It has become apparent to the Agency through an investigation into her history of children being removed and the treatment plans put in place [Mother] is incapable of making lasting changes. While it continues to be evident that she loves her children, she is not able to protect them from her relationships and choices that she has made in the previous cases. [Mother] has started her recovery and [is] starting to engage in therapy but this is years of trauma that she has not addressed regarding relationships and her substance abuse. Even throughout last year, referrals were being made in order to assist her in preventing the removal of the children. However, [Mother] disregarded the Agency's attempts to intervene as she continued to use substances and expose her children to unsafe situations."
The contested disposition hearing took place over four days in August and September 2019. The court found Mother had failed to address extensive and chronic drug abuse that previously led to her permanently losing custody of her other children, ordered that she not be offered reunification services, and set a January 7, 2020 date for a permanency planning hearing as to Amy and Zaden pursuant to section 366.26.
Mother filed a timely notice of intent to file a writ petition but never filed a petition for extraordinary writ challenging the disposition order.
As we describe more fully in the following discussion section, on January 5, 2020 Mother filed a petition under section 388 of the Welfare and Institutions Code seeking to modify the disposition order so she could be provided reunification services. The court denied the petition without a hearing, and on January 21 Mother filed a second petition with additional factual support on essentially the same grounds and seeking the same relief. The court summarily denied this petition as well.
Further statutory citations are to the Welfare and Institutions Code.
The Agency prepared an adoption assessment in advance of the permanency planning hearing. Amy and Zaden had been placed apart in different foster homes. Amy's foster parents were very committed to her and wished to adopt both children.
Amy had not asked to return to Mother's care, but she clearly enjoyed their supervised visits. On one occasion she tried to find Mother "by eloping from her placement with her care providers' minor daughter" after an "unknown source" raised the prospect of adoption with her. Amy appeared to have substantial emotional ties to her current foster parents and wished to live with them "forever" together with Zaden.
The permanency planning hearing took place on January 22, 2020. Mother testified termination of her parental rights would be contrary to Amy and Zaden's best interests "[b]ecause they love their mom, and because I'm healthy. And I know how to never let this happen to my children again. I've graduated drug treatment." If they could not be with her she preferred "a guardianship or some type of arrangement to where I can continue to prove that I'm here for them, and that I am their best interest."
Amy's foster parents had been providing the day-to-day caretaker role for her. The foster mother testified that Amy enjoyed being part of their family. Amy had expressed that she wanted more and unsupervised visits with Mother, but "not so much recently." In the foster mother's experience, "any child is going to want to be with their mom." Earlier in Amy's placement she said she wanted to return home and did not want to be adopted, but more recently she "seem[ed] to be coping" with the uncertainty of her and Zaden's situation.
Mother's attorney argued that, based on the children's bond with Mother, guardianship with visitation was in their best interest. The juvenile court disagreed and expressly found the record did not establish that "any parental bond that exists between mother and these children significantly outweighs the best interest of the children in providing all of the benefits that are associated with adoption." The court found by clear and convincing evidence that the children were adoptable and ordered the termination of parental rights with adoption as the permanent plan. Mother filed a timely notice of appeal.
DISCUSSION
I. The Section 388 Petitions
Mother contends the court erred when it summarily denied her two section 388 petitions. We disagree. The trial court properly found the petitions failed to establish a prima facie case sufficient to warrant an evidentiary hearing.
A. Background
On January 6, 2020, the day before the section 366.26 hearing, Mother filed a petition for modification under section 388 asking the court to offer her reunification services. The petition alleged Amy and Zaden were bonded with Mother and each other and that Mother was participating in sobriety programs, therapy and drug testing, was no longer in a violent domestic relationship, had obtained housing, and was having regular successful visits with the children. The petition did not describe or include any evidence supporting her claims. The court found the petition failed to state new evidence or a change in circumstance and that the proposed change to the court's order did not promote the best interest of either child. It accordingly denied the petition, but granted Mother's request for a continuance of the section 366.26 hearing to file a new petition.
Mother filed her second petition the day before the continued hearing date. It alleged Mother had made substantial progress engaging in services and visitation, obtained housing and full-time employment, was sober, had a sponsor and tested clean, was participating regularly in therapy and various substance abuse services, and was no longer in a domestic violence relationship. She believed that modifying the disposition order to offer her reunification services would be better for the children because they were bonded to her and each other, were not currently placed together, she had housing for them, and she had consistently attended visits.
The petition was supported by a letter from Mother describing her efforts and progress toward sobriety and her loving relationship with her children, letters from various providers and programs she participated in before and after the disposition hearing, service logs documenting positive visits with the children between March and May 2019, and a letter stating Mother was accepted into a nurse assistant training program to start in January 2020.
The court summarily denied the new petition at the outset of the January 22 section 366.26 hearing, stating three independent reasons. "One is that it is very, very, very late. [¶] However, I would strongly consider it, but it does not state new evidence of the change of circumstances. [¶] Moreover, the proposed change of order is not in the best interest of either child."
B. Analysis
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.] [¶] However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
"[A] hearing may be denied only if the application fails to reveal any change of circumstance or new evidence which might require a change of order." (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414; In re Zachary G., supra, 77 Cal.App.4th at p. 806 [affirming summary denial of petition that showed changed circumstances but not that proposed change was in the child's best interests].) We review the juvenile court's determination for abuse of discretion. (In re Zachary G., supra, at p. 808; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450.)
Here, the court properly found Mother failed to make a prima facie case that the proposed modification would promote the children's best interests. Mother's petitions focused primarily on her performance in sobriety programs before and after the dispositional hearing and, to a lesser extent, on the strength of her loving relationship with the children. But, as the juvenile court found, they did not establish a prima facie case that extending the dependency period so Mother could engage in reunification services would serve the children's best interests.
When dependency proceedings are at the stage of the section 366.26 hearing, the parent's interest in the care, custody and companionship of the minor is subordinate to the child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A section 388 petition that would, if granted, delay the child's placement in a permanent home to see if a parent may someday be able to reunify with the child "does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child." (In re Angel B. (2002) 97 Cal.App.4th 454, 464; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H., supra, at p. 310.)
We agree with the trial court that Mother failed to establish a prima facie case sufficient to warrant an evidentiary hearing. Her efforts to address her long-term substance abuse and related difficulties are commendable, but the factual history of this case makes clear that, even if those ongoing efforts eventually succeed, it is not at all evident Mother will be in a position to safely take care of Amy and Zaden at any time in the predictable future. "Childhood does not wait for the parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) Despite whatever progress Mother may have made since the disposition hearing, nothing in her section 388 petitions established that it was in the children's best interest to disrupt a successful adoptive placement and delay their interest in a safe and permanent home. The court properly denied Mother's petition without a hearing.
II. Termination of Parental Rights
Mother asserts the court disregarded Amy's wishes and feelings about adoption when it terminated parental rights. The record does not support her assertion. Mother claims the court "never articulated it considered" Amy's wishes, but the termination order expressly states that the court had considered the interests of the child consistent with her age. Nor is there any indication in the record that the court failed to perform its official duty to give due consideration to all relevant evidence, including the evidence of Amy's wishes and feelings. (Evid. Code, § 664; see People v. Myers (1999) 69 Cal.App.4th 305, 309 [court is presumed to have considered all relevant factors in absence of an affirmative record to the contrary].)
Mother further contends that, in light of Amy's strong emotional attachment to her and resistance to adoption, the court erred when it declined to apply the beneficial relationship exception to the general preference for adoption as the permanent plan. We review the refusal to make such a finding for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Mother acknowledges that Zaden, at age three, was too young to speak on his own behalf, but she suggests Amy's resistance to adoption was indirect evidence of the potential effect of his adoption.
While we recognize that other courts have reviewed such a determination to see whether it is supported by substantial evidence (see, e.g., In re Dakota H. (2005) 132 Cal.App.4th 212, 228), we will not address the divergence here. As we observed in In re Jasmine D., supra, 78 Cal.App.4th at page 1351, the practical differences between the two standards of review in these cases are minimal and not outcome determinative. In this case, beyond any doubt, the result would be the same under either test.
If a child is found adoptable at the section 366.26 hearing, the juvenile court must terminate parental rights and place the child for adoption unless it finds termination would be detrimental to the child because, inter alia, "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent." (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) The child's relationship with the parent must "promote[ ] 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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Only in extraordinary cases will preservation of the parent's rights prevail over the Legislature's preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
This is not a case where the children's relationship to their mother outweighs the well-being they could gain in a permanent adoptive home. We do not question Mother's love for her children. But the juvenile court reasonably found that Mother was far from ready to parent her children. "[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Amy's love for her mother and her distress at the disruption of their parental relationship are weighty considerations, but they are insufficient to support Mother's claim that her relationship with the children outweighs their need for a safe and permanent home. On the other side of the balance, the children are doing well in their foster placements and it appears they are likely to be adopted into the same family. The court's determination was within its discretion.
DISPOSITION
The orders denying Mother's section 388 petitions and terminating her parental rights are affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.