Opinion
F077419
12-10-2018
In re AUBRIE B. et al., Persons Coming Under the Juvenile Court Law. MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. D.B., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Miranda P. Neal and Derek Walzberg, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. MJP017853, MPJ017854, MPJ017855)
OPINION
THE COURT APPEAL from orders of the Superior Court of Madera County. Thomas L. Bender, Judge. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Miranda P. Neal and Derek Walzberg, Deputy County Counsel, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Smith, J. and Snauffer, J.
-ooOoo-
Appellant D.B. (mother) appeals from the juvenile court's orders denying her petition under Welfare and Institutions Code section 388 and terminating parental rights over now six-year-old Aubrie B., four-year-old Emma B. and two-year-old B.B. In her section 388 petition, mother sought reinstatement of reunification services. She contends the evidence supported her request and the court erred in believing it lacked authority to grant it. She also contends the termination order was error because there was insufficient evidence the children were adoptable. We affirm.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
In October 2016, the Madera County Department of Social Services (department) took then four-year-old Aubrie, 23-month-old Emma, and three-month-old B.B. into protective custody after mother was arrested and the children could not be safely left with their father, B.B., Sr. (father), because of his substance abuse. The arresting officer showed the social worker a video of father injecting methamphetamine into his arm taken with mother's cellphone. Father accused mother of hitting him and breaking a car window. Mother had bloody knuckles, consistent with having hit someone or something. The parents were known to the police department for their ongoing domestic violence, requiring police response multiple times over the previous week. The department placed the children together in foster care.
Aubrie told the investigating social worker her parents fought using their hands in front of her and her siblings. Father hit her mother "all the time" and she saw "bruises all over [mother's] body." She said mother hit her father "sometimes." Aubrie would "sock" father if she saw him hit her mother and demonstrated by punching with her fists. Seeing her parents fight scared her.
In December 2016, the juvenile court exercised its dependency jurisdiction over the children at the dispositional hearing and ordered the parents to participate in domestic violence, mental health, substance abuse, and parenting services.
By the six-month review hearing in June 2017, the children had been placed with their maternal grandmother, Cindy S. Aubrie was receiving behavioral counseling for being aggressive with her siblings. The parents were homeless and participated minimally in their services plan. Mother appeared with her attorney at the six-month review hearing and submitted on the department's recommendation to terminate reunification services. Father did not personally appear. The juvenile court terminated reunification services and set a section 366.26 hearing for October 2017.
In September 2017, the department removed the children from Cindy's custody and filed a supplemental petition (§ 387), after discovering that Cindy was allowing mother to care for the children even though mother continued to abuse drugs. Mother disclosed that she gave birth to a baby earlier in the month and she and the baby tested positive for amphetamine. She said Cindy asked her to care for the children because Cindy was sick. After the children's removal, B.B. tested positive for THC. A month later, Cindy tested positive for methamphetamine, amphetamine and THC by hair follicle analysis.
The juvenile court continued the section 366.26 hearing to November 2017, and set a hearing on the supplemental petition for the same date. At the November hearing, the court accepted the parents' submission of the case and sustained the supplemental petition. The court agreed to proceed without disposition, ordered the children to remain in foster care and continued the section 366.26 hearing.
In December 2017, mother was involuntarily discharged from a drug treatment facility for testing positive for methamphetamine and father was incarcerated. Around this same time, the department received reports that Aubrie and Emma were displaying sexualized behavior in foster care. In addition, all the children were anxious and aggressive with each other before and after visits with mother. Aubrie would have a "melt down" on days she visited mother. After one visit with mother, the foster parent had to stop six times because of Aubrie's emotional state and anxiety. While in the car, Aubrie began scratching her face and scratched Emma and B.B. as she began hitting them. She required assurance before and after visits that she was safe. Emma scratched, bit, and punched Aubrie and B.B. without provocation and had nightmares. Though fully potty-trained, she had several accidents the day of and after visits. B.B. screamed the day before and after visits. He pinched, bit, and hit his sisters and pulled their hair. His nightmares and night terrors increased significantly and he violently thrashed in his crib. The children's reactions to visiting father were even more pronounced. Emma held a bag during their commute to the jail because she felt nauseated.
In January 2018, mother entered the Rescue the Children Program but was discharged three days later for not complying with the program rules. On February 6, 2018, she was admitted to Lighthouse Recovery Program, an inpatient drug treatment facility.
Meanwhile, the department removed Aubrie from the foster home she shared with her siblings after she disclosed that she touched Emma's "privates." She also stated "he touched me" but was unable to identify who "he" was or where or how it happened. Emma confirmed that Aubrie touched her "privates" two or three times and pointed between her legs. Approximately two weeks later, Emma and B.B. were moved to another home after their foster parents were decertified because they were dishonest about their foster family agency certification.
Prior to the section 366.26 hearing, mother's attorney filed a section 388 petition asking the juvenile court to reinstate mother's reunification services. Since the court terminated mother's services, she participated in some services, enrolled herself in a program, and continued to visit the children. She believed providing her services would benefit the children by reestablishing their relationship with her. A hearing on mother's section 388 petition was scheduled on March 15, to coincide with the section 366.26 hearing.
The department recommended the juvenile court deny mother's section 388 petition, opining it was too early to gauge her progress in drug treatment and unlikely she could reunify with the children if given more time. The department also informed the court it planned to transition Aubrie to her siblings' foster home and adopt them as a sibling group. Although the department had not identified a prospective adoptive home for them, it considered the children adoptable because they were young and developmentally on target. It acknowledged Aubrie had some moderate behavioral concerns but she was addressing them in weekly therapy. She did not understand the concept of adoption and stated she wanted her "mommy and daddy." Three-year-old Emma was very quiet and shy initially but had progressed and flourished since being in a stable foster home. She was strongly bonded to her brother and was very protective of him.
The department reported that mother regularly visited the children at the departmental facility. She was engaging and successfully redirected them and the children responded well to her. Father had monthly visits with the children at the county jail, which was traumatizing to Aubrie. She cried inconsolably, refused to be transported, and clawed at her face. Emma appeared scared and uncomfortable and would not speak to her father on the phone. B.B., on the other hand, entertained himself with the computer screen and telephone.
On March 5, 2018, the juvenile court conducted a combined hearing on mother's section 388 petition and the department's recommendation to terminate parental rights. County counsel asked the court to take judicial notice that April 4, 2018, would mark 18 months of reunification. Counsel did not object to the court's taking judicial notice of that date.
Mother testified she did not complete any of the services required by her services plan, but came close. She lacked two classes to complete anger management. When she entered Lighthouse in February 2018, she had to restart anger management and parenting classes as a requirement of the program. She had 44 days of sobriety and anticipated completing the classes on May 7. She was benefitting from therapy and counseling and said her visits with the children were "wonderful." She planned to get an apartment after she completed drug treatment and continue in aftercare. Meanwhile, she hoped the children could remain in their placement while she completed the program. The children demonstrated they recognized her as their mother by saying, "Mommy, Mommy" as they ran to her at the beginning of visits. Aubrie insisted that her "real family" included mother, father, Emma, and B.B. Emma liked to sit on her lap and be held and rocked. B.B. wanted her to hold him the entire visit. The children were also affectionate with her, hugging and kissing her throughout their visits and expressed their desire to live with her.
The juvenile court denied mother's section 388 petition because she failed to maintain sobriety independent of the structured treatment environment and demonstrate that reunification would serve the children's best interest. The court stated:
"The problem with [mother's section 388 petition] is that I don't see changed circumstances. I see changing circumstances. She really hasn't been able to demonstrate sobriety outside of a program. So, I don't ... think circumstances have changed yet. Also, I don't believe she has shown that ... her request is in the best interest of the children at this point."
The juvenile court also stated that, by its calculation, 18 months of reunification services would expire in May, rather than April as county counsel indicated. The court stated:
"Well, I calculate it as May[;] you have it as April. If I use your date, she is out of time. Even using my date ... she is not in the position where the kids could be returned to her by that date, anyway. So, based on my statements, I'm inclined to deny the 388."
The juvenile court found the children were likely to be adopted, that none of the exceptions to adoption applied and terminated parental rights.
DISCUSSION
Section 388Section 388, subdivision (a)(1), allows a parent of a child who is a dependent of the juvenile court to petition the court, "upon grounds of change of circumstance or new evidence, ... for a hearing to change, modify, or set aside any order of court previously made .... " The parent bears the burden of showing a legitimate change of circumstances or new evidence exists and that undoing the prior order would serve the child's best interest. (In re A.A. (2012) 203 Cal.App.4th 597, 611-612 (A.A.).)
Thus, section 388 provides a means through which the juvenile court may consider new information that bears on the child's ultimate placement. The ability to present new evidence is critical, especially for a parent seeking to reunify, given the court's singular focus on finding a permanent placement for the child in the home of someone other than the parent. Consequently, section 388 serves as an " 'escape mechanism' " in the short, final period before the actual termination of parental rights for a parent who can show he or she has reformed. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) "As such, section 388 is vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular." (In re Kimberly F., at p. 528.)
A parent seeking to demonstrate the reformation contemplated under section 388 must show a change so compelling as to overcome the child's need for permanency and stability in a new home. This is so because the parent's interest in the care, custody, and companionship of the child are no longer paramount, and the focus shifts to the needs of the child. 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, the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
In reviewing the denial of a section 388 petition, we review the proper interpretation of a statute and the application of the statute to undisputed facts as questions of law, which we review de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) We review the factual findings upon which the order is based for substantial evidence, viewed in a light most favorable to the juvenile court's order. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) We review the juvenile court's order for abuse of discretion and will not disturb it on appeal absent an arbitrary, capricious, or "patently absurd" determination. (Stephanie M., supra, 7 Cal.4th at p. 318.) We do not inquire whether substantial evidence would have supported a different order, nor do we reweigh the evidence and substitute our judgment for that of the juvenile court. (Ibid.) We ask only whether the juvenile court abused its discretion with respect to the order it actually made. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Mother contends her 44 days of sobriety and participation in various programs was a sufficient showing of changed circumstances. She also contends the quality of visitation and the children's positive response to her supported a finding reunification would serve their best interests. We disagree.
At best, mother demonstrated she made recent inroads toward recovery from longstanding and active drug abuse. She was 27 at the time of the hearing on her section 388 petition and had been using methamphetamine on and off since the age of 14. In the five months after the court terminated her services in October 2017, she continued to use methamphetamine and unsuccessfully attempted drug treatment twice. Given mother's extensive history of drug use, the court could conclude her recent recovery efforts were insufficient to justify reopening reunification. "Not every change in circumstance can justify modification of a prior order." (A.A., supra, 203 Cal.App.4th at p. 612.) Rather, the change in circumstances must constitute a resolution or improvement of the problem that necessitated the court's intervention and compel a setting aside or modification of the challenged order. (Ibid.) Mother did not establish that such a change had occurred.
Nor did mother show that family reunification services inured to the children's best interests. The children had been out of mother's custody for 17 months and her visitation did not progress beyond supervised visits. Though her interactions with them were positive, Aubrie and Emma were having emotional problems related in part to the trauma they suffered while in her care. Despite any recent progress mother had made, there was no reason to believe the children's best hope for safety and security would be realized through reunification rather than adoption.
We conclude based on the foregoing the juvenile court properly denied mother's section 388 petition. We turn to her argument the court misapplied the statute. Mother does not argue the court misapplied section 388. Rather, she contends the court misapplied section 366.22, which governs the 18-month review hearing. Subdivision (b) of the statute allows the court to extend reunification services up to 24 months from the time a child is taken into protective custody for a parent who is making significant and consistent progress in a court-ordered residential substance abuse treatment program. Mother contends she qualified for further services under the statute but because the court was unaware it had such authority, it erroneously denied her section 388 petition. Its denial was prejudicial, she further contends, because she met her burden of proof on the section 388 petition.
As a preliminary matter, we disagree the juvenile court denied mother's section 388 petition because 18 months had lapsed since the children were initially removed from her custody. The court denied mother's petition because she failed to meet her burden of proof under section 388. The court's consideration of when 18 months had or would pass, if anything, was an additional consideration for denying the petition. Further, even assuming section 366.22, subdivision (b) applied, and the court was unaware it had authority to continue services beyond 18 months, it would only be error if the court intended to grant the petition but denied it, erroneously believing it lacked the authority. That did not occur here. Adoptability
At a section 366.26 hearing, the juvenile court must determine by clear and convincing evidence whether it is likely the minor will be adopted. (§ 366.26, subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental rights absent evidence termination would be detrimental to the minor under one of the exceptions to adoption. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) Here, the juvenile court found none of the exceptions to adoption applied and mother does not challenge its termination order on that ground. Rather, she contends the court erred in finding the children were likely to be adopted.
In determining adoptability, the juvenile court assesses the child's age, physical condition, and emotional state and how these characteristics affect a prospective parent's willingness to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) "To be considered adoptable, a [child] need not be in a prospective adoptive home and there need not be a prospective adoptive parent ' "waiting in the wings." ' " (In re R.C. (2008) 169 Cal.App.4th 486, 491 (R.C.).)
In assessing adoptability, some courts distinguish between the "generally adoptable" and "specifically adoptable" child. A child is "generally adoptable" if the child's traits, e.g., age, physical condition, mental state, and other relevant factors, do not make it difficult to find an adoptive parent. A child is "specifically adoptable" if the child is adoptable only because of a specific caregiver's willingness to adopt. (R.C., supra, 169 Cal.App.4th at pp. 492-494.) " 'When a child is deemed adoptable only because a particular caregiver is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child.' " (Id. at p. 494.)
Mother contends the children were not specifically adoptable because they were not in a prospective home and were not generally adoptable because they were a bonded sibling group and Aubrie and Emma had emotional problems. In our view, general versus specific adoptability is an unnecessary distinction. Section 366.26 does not use those terms and the juvenile court is not required to assess adoptability on that basis. Instead, section 366.26 merely requires the juvenile court to determine if the child is likely to be adopted within a reasonable time.
"Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) Moreover, we review the record in the light most favorable to the juvenile court's findings and draw all inferences from the evidence that supports the court's determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
Here, there was nothing about the children to indicate they would not be adopted in a reasonable time. They were healthy and developmentally on target. Aubrie, described as "very intelligent," was doing well in school and making friends. Though she and Emma were displaying some emotional problems, they were receiving therapy and apparently benefitting.
Mother nevertheless contends Aubrie and Emma's emotional problems rendered them unadoptable as a sibling group, citing Aubrie's aggressive behavior toward her siblings and sexualized behavior in public and Emma's initial reluctance to talk. She fails, however, to show that such behavior alone would make it difficult for the department to find an adoptive home for the children in light of other characteristics that make them attractive to prospective adoptive parents, such as their young age and physical and mental health.
Mother also contends the absence of prospective adoptive parents precludes a finding the children are likely to be adopted. As we stated above, the children need not be in a prospective adoptive home, nor must there be prospective adoptive parents waiting to adopt for the juvenile court to find the children adoptable. Further, the case mother cites, In re B.D. (2008) 159 Cal.App.4th 1218, is distinguishable.
In re B.D. involved a sibling set of five children, ranging in age from three to ten years of age, whom the social worker "strongly believed" should be placed for adoption together. (In re B.D., supra, 159 Cal.App.4th at pp. 1222, 1232.) The social worker however testified, "it would not be easy to find a suitable adoptive home for the sibling group." (Id. at p. 1233.) B.D. had been diagnosed with a major depressive disorder, recurrent, and attention deficit hyperactivity disorder. (Id. at p. 1223.) One of B.D.'s siblings was mildly mentally delayed and had been diagnosed with posttraumatic stress disorder. (Id. at pp. 1223-1224.) Another sibling had been diagnosed with depressive disorder, not otherwise specified, adjustment disorder with anxiety, and impulse-control disorder, not otherwise specified, and exhibited tantrums and aggressions toward others. (Id. at p. 1224.) Still another sibling had been diagnosed with adjustment disorder with mixed emotions and conduct and was below average in cognitive and intellectual functioning. (Ibid.) B.D. and his siblings were placed in separate foster homes, and none was placed with prospective adoptive parents. (Id. at pp. 1232-1234.) Under these circumstances, the appellate court concluded that the social worker's generalized statements regarding adoptability were not sufficient because there was "no evidence in the record to support a finding that B.D. [and two of his siblings] were likely to be adopted as a sibling group within a reasonable time." (Id. at p. 1233.)
Nevertheless, the appellate court affirmed the termination order because postjudgment evidence showed the children had been placed together in an adoptive home, rendering the issue on appeal moot. (In re B.D., supra, 159 Cal.App.4th at pp. 1236-1237.) --------
Unlike the siblings in In re B.D., mother's children are not part of a large sibling group and none of them suffer from serious intellectual or emotional delays. Though their placement was recent at the time of the section 366.26 hearing, and an adoptive family had not been identified, there was no reason to believe based on their general characteristics that an adoptive family would not be located.
The other case mother cites, In re Carl R. (2005) 128 Cal.App.4th 1051, is so factually and legally distinguishable as to not merit much, if any, mention. The issue in Carl R. was the proper scope of inquiry by the juvenile court in determining the adoptability of a child who would require intensive care for life. (Id. at p. 1062.) The child had "cerebral palsy, severe quadriparesis, a seizure disorder, and an uncontrolled and severe psychomotor delay." (Id. at p. 1058.) At age eight, he had the emotional maturity of an eight-month-old child. (Ibid.) The appellate court affirmed the termination order, concluding that when a child is deemed specifically adoptable, and the child has special needs, the juvenile court must consider whether the prospective adoptive parents can meet those needs. (Id. at p. 1062.) The evidence supported a finding that the prospective adoptive parents would meet the child's special educational needs. (Id. at pp. 1064-1065.) Mother's children were not "specifically" adoptable, as that term is used, much less special needs and were not in a prospective adoptive home.
DISPOSITION
The juvenile court's orders denying mother's Welfare and Institutions Code section 388 petition and terminating parental rights are affirmed.