Opinion
E070154
10-02-2018
In re K.W., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. S.M., Defendant and Appellant.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1600197) OPINION APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
S.M. is the mother (Mother) of K.W., who was age five on the date of the challenged orders. Mother appeals from the court's orders of March 9, 2018, denying her petition to modify a court order under Welfare and Institutions Code section 388, and terminating her parental rights at the hearing held under section 366.26. Specifically, Mother contends: (1) the court abused its discretion when it denied her section 388 petition; and (2) substantial evidence does not support the court's finding that the parent-child beneficial relationship exception to the presumption for adoption did not apply. For the reasons discussed post, we affirm.
Section references are to the Welfare and Institutions Code, except where otherwise indicated.
FACTS AND PROCEDURE
Detention—March to April 2016
On March 29, 2016, the Riverside County Department of Public Social Services (DPSS) filed a section 300 petition regarding three-year-old K.W. DPSS alleged under section 300, subdivision (b), that Mother abuses controlled substances and lacks appropriate and stable housing, and that K.W.'s father does not provide for K.W.; and under section 300, subdivision (g), that K.W.'s father does not provide for K.W. On April 1, 2016, DPSS amended the petition to add an allegation under section 300, subdivision (b), that Mother suffers from unresolved mental health issues.
Father is not a party to this appeal and so is referred to only in passing. --------
The detention hearing was held on April 4, 2016. The court detained K.W. and ordered DPSS to provide Mother with two supervised visits each week. The court authorized DPSS to liberalize visitation to include unsupervised overnights and weekends.
Jurisdiction and Disposition—April to June 2016
In the jurisdiction and disposition report dated April 28, 2016, DPSS recommended K.W. remain placed in the home of the maternal second cousin and that Mother and K.W.'s father receive reunification services and supervised visits. Mother's initial drug test for DPSS was positive for methamphetamines and amphetamines, and she stated she had a history of taking narcotic painkillers without a prescription. In addition, Mother's housing situation was unstable. Three-year-old K.W. was almost nonverbal and not potty trained. The relative foster mother reported K.W. came to her with a vocabulary of about seven words, but she worked with him and got that up to about 20 words. Although Mother attributed this speech delay to impaired hearing, an exam showed K.W. had normal hearing. K.W. had no other developmental delays. Mother was pleased that K.W. was with her second cousin. Mother regularly visited with K.W. in April, and K.W. was excited to see Mother. The visits went well. Mother entered an inpatient drug treatment center on April 8, but it was noted that she then entered outpatient treatment on April 12. Mother was testing negative for drugs.
In an addendum report dated May 25, 2016, DPSS reported that Mother continued to participate in drug treatment, test negative for drugs, and visit appropriately with K.W.
The jurisdiction and disposition hearing was held on June 1, 2016. Mother and K.W.'s father waived their rights to contest jurisdiction. The court sustained the petition as to the section 300, subdivision (b) allegations 1 (drug use by Mother detrimental to K.W.) and 3 (father does not support K.W.), and ordered DPSS to provide reunification services. The court authorized DPSS to liberalize visitation, up to family maintenance, if Mother regularly tested clean for drugs.
Six-Month Status Review—June 2016 to January 2017
DPSS filed a six-month review report dated November 10, 2016, in which it recommended Mother continue drug treatment, reunification services, and visits. DPSS expressed concern about the short length of Mother's sobriety and did not think she was ready to have K.W. in her custody just yet. K.W. had adjusted well to the relative foster home. Mother recently moved into a three-bedroom home with a (live scanned) roommate, and had already begun decorating K.W.'s room. Mother was working as a waitress, but was not paying rent or utilities at the home. Mother had not yet begun mental health counseling, but an appointment was in the works. Mother completed a parenting class and was applying what she learned to her visits with K.W. Mother completed outpatient drug treatment, during which she tested negative, and was enrolled in aftercare services. However, Mother could not produce enough saliva for an oral swab drug test by DPSS in June and again in August. In addition, Mother did not appear for random drug testing ordered by DPSS for July 29, September 6 and 20, and October 24, 2016. She did appear for a random test on October 13, which was negative. A test for October 31 was positive for a heroin metabolite. K.W. was progressing in his development and was now potty trained. His hearing and speech were assessed; his hearing was normal and he was to receive speech therapy. Mother was having three-times weekly visits with K.W., supervised by the relative caretaker, until early July. Mother was coming to visits late and not letting the caretaker know. On July 7, the caregiver attempted to set boundaries with Mother, which resulted in an argument in a public park with K.W. present. After that date, the visits reverted to twice weekly at the DPSS office. In September, Mother progressed to unsupervised visits. Mother attended K.W.'s first day of preschool and chaperoned a field trip, about which Mother was very excited. The caregiver noted a marked positive change in Mother and looked forward to K.W. returning to Mother. Mother was to drug test on demand before having an overnight visit at the end of October, but stated she could not test that day because of a problem with the referral. A subsequent drug test on October 31 was positive, as discussed ante. Mother was having FaceTime visits with K.W. before bed every night. Screenshots taken during one of those visits showed Mother looking nearly passed out and with red blotches on her face and neck.
Mother was present at the six-month review hearing held on November 29, 2016. The court continued the hearing because K.W.'s father was contesting the termination of his reunification services. The court ordered Mother's visits changed to supervised at the DPSS office, with Mother to arrive one hour before each visit to drug test. If Mother tested clean for 30 days, the court authorized DPSS to resume unsupervised visits, up to weekend visits. At Mother's request, the court authorized a hair follicle test.
DPSS filed an addendum report on January 11, 2017, in which it again recommended continued services, visits, and drug treatment. DPSS described Mother's drug testing results before visits as "confounding. When she completes a urine screen the results are negative but when she submits to a saliva screen the results are varied. Sometimes she tests positive for methamphetamine and sometimes for opiates." Mother tried to affect the saliva screen results by drinking orange juice and using mouth wash immediately before testing. She also dyed her hair three times in an attempt to alter the hair follicle test results. Mother missed four visits with K.W. because of positive drug tests, and at times the results of the drug tests were invalid or mixed. On January 5, 2017, Mother admitted to having relapsed, despite earlier denials. The social worker arranged for Mother to enter inpatient drug treatment on January 9, but Mother instead entered outpatient treatment on January 13.
At the continued review hearing held on January 17, 2017, Mother requested the before-visit drug tests to be urinalysis only, rather than by oral swab. The court made the type of testing subject to DPSS discretion, depending on whether Mother was displaying symptoms of drug use. The court continued Mother's services and supervised visits. The court terminated reunification services to K.W.'s father.
Twelve-Month Review—January to August 2017
In the 12-month status review report dated May 11, 2017, DPSS recommended terminating Mother's reunification services, limiting supervised visits to once a month, and setting a section 366.26 hearing to determine a permanent plan for K.W. Mother enrolled in a seven-day detox program on February 14 and stated she would then enroll in the 30-day inpatient program. However, she left abruptly. She entered a different inpatient program on March 9, but was asked to leave on March 26. Mother had tested positive for methamphetamine after her "significant other" visited, and shared drugs with other residents, causing them also to test positive and be asked to leave. Mother declined to re-enroll in inpatient treatment, and instead enrolled in an outpatient program with an intake appointment on May 9. K.W.'s therapist told the social worker that, as he formed a closer relationship with the relative caregiver and her husband, his initial symptoms of difficulty sleeping and wetting the bed had improved significantly. K.W. became able to reach out to his caregivers for support and assistance rather than trying to do things on his own. The therapist's biggest concerns for K.W. were his language development and Mother's lack of consistency in his life. The therapist explained that K.W. has "missed some opportunities to thrive" and this can affect his development. "[T]he longer he's exposed to stress, the harder it is going to be for him and can impact him long term." Mother's weekly supervised visits were appropriate and loving overall. However, there were concerns regarding Mother's attentiveness toward K.W. and availability for visitation. On one visit at the inpatient program in March, the observer noted Mother spent most of her time talking about the dependency with other residents while K.W. played with other children. On another occasion at the DPSS office, the social worker observed Mother failing to redirect or set boundaries for K.W. when he was throwing numerous objects around the room. Mother asked to have two visits ended 30 minutes early because she was tired or did not feel well. On May 9, Mother asked to leave the visit early so she could attend her intake appointment for her new outpatient treatment program.
On May 30, 2017, the matter was set contested for July 10, 2017.
In an addendum report dated June 27, 2017, DPSS indicated no changes to the prior recommendation to terminate services. Mother was testing negative for drugs. She was attending her outpatient groups, but "it [was] observed that [she] has lost weight and there is concern for her well-being." On June 22 and 27, Mother missed her intake appointments for therapy, and did not respond to the social worker's text of June 23 regarding this. Also on June 27, Mother missed her scheduled visit with K.W.
On July 10, 2017, the court continued the 12-month review hearing for 30 days to allow Mother time to comply with her case plan. K.W.'s counsel indicated that during visits Mother often promises K.W. that he will be coming back to live with her, and asked that the visits be terminated when Mother makes these comments. The court impressed upon Mother that she must test clean, attend all services and appointments, and appropriately visit with K.W. for the next 30 days.
In its addendum report dated August 3, 2017, DPSS still recommended terminating Mother's services. Although the social worker believed Mother was "on the verge of" addressing her drug abuse issues, Mother continued to be inconsistent with the required drug testing and appeared to be tampering with the tests. Mother missed two visits with K.W., once because she tested positive and once because she arrived at the visit too late to test.
The hearing on August 10, 2017, was continued to August 21. Mother had just completed outpatient substance abuse treatment on August 9, but two oral swab tests conducted the morning of August 10 registered as invalid. The court ordered Mother to have a urine test that day.
In the addendum report dated August 15, 2017, DPSS made no change to its recommendation to terminate Mother's reunification services. The urine test from August 10 came back negative. The social worker expressed that Mother was making progress, but was concerned about Mother's ability to be consistent about participating in services, visiting with K.W., and refraining from substance abuse.
At the 12-month status review hearing held on August 21, 2017, the court continued Mother's reunification services and set the 18-month review hearing for October 2, 2017.
Eighteen-month Review—August to October 2017
In the 18-month status review report dated September 15, 2017, DPSS again recommended terminating Mother's reunification services and setting a permanent plan selection and implementation hearing under section 366.26. Mother was participating regularly in counseling, but was not participating in substance abuse after care, despite telling the social worker that she was. Mother continued to drug test before each visit with K.W., but again had invalid oral swab tests and stated transportation issues prevented her from undergoing any of the three on-demand urine tests requested by the social worker. Mother missed one visit with K.W. because of transportation issues. Mother was loving and appropriate during visits with K.W., but on one occasion tried to get K.W. to help clean up the visitation room and K.W would help only a little before leaving to see if the caregiver had arrived.
On October 2, 2017, the court continued the hearing to October 31 so Mother could contest the DPSS recommendation. The court ordered Mother to have a hair follicle drug test.
DPSS filed an addendum report dated October 25, 2017, in which it again recommended terminating services. On October 3, Mother's previsit oral swab test was invalid. She had a urine test the next day, which came back positive for a heroin metabolite. Mother's hair follicle test was positive for amphetamine, methamphetamine, heroin, and morphine. Mother participated in her substance abuse after care for the first time on October 18. On October 17, Mother overslept and missed a scheduled visit with K.W. at a park. K.W. was very upset and had a "meltdown." The previous evening Mother had spoken with K.W. on the phone and told him about all the fun things they were going to do at the park.
At the contested 18-month review hearing on October 31, 2017, the court terminated Mother's reunification services and reduced her visits to one hour twice a month. The court authorized DPSS to reduce or increase Mother's visits in its discretion. The court set the section 366.26 hearing for February 28, 2018.
Selection and Implementation—November 2017 to March 2018
DPSS filed the section 366.26 report prepared on February 6, 2018, in which it recommended terminating Mother's parental rights and selecting adoption as K.W.'s permanent plan. Mother had visited with K.W. only twice in the three months since the 18-month review hearing. At the visit on November 28, 2017, at a park, Mother appeared disheveled and had visible sores on her mouth and face. Mother ate most of the food that was provided for K.W. Otherwise, the visit was described as loving and appropriate. On January 8, 2018, the visit was also appropriate, but again Mother's oral swab test was invalid. Mother failed to submit to on-demand urine testing throughout the three-month period. Mother entered an inpatient drug treatment program on February 2.
The hearing set for February 28, 2018, was continued to March 9.
Mother filed a form JV-180 request to change court order under section 388 on March 5, 2018. Mother pointed to her recent entry into an inpatient program and her strong bond with K.W. as reasons why the court should modify its order terminating her reunification services.
DPSS filed an addendum dated March 6, 2018, in which it opposed Mother's section 388 petition. Mother had two visits with K.W. at the inpatient treatment facility. At the visit on February 7, 2018, Mother did not feel well because she had recently been placed on Methadone for her withdrawal symptoms. She spent time with K.W. but did not actively play with him. The visit on February 21 went much better; Mother was attentive and affectionate with K.W. and actively played with him.
The section 366.26 hearing was held on March 9, 2018. K.W.'s counsel offered the following stipulated testimony: "[H]e likes his visits with his mother. He wants the visits to continue. He would be very sad if no visits were to occur in the future. [¶] Given a choice as to where to live, with mother or in the current home, he wants to stay where he's at." After hearing argument, the court denied Mother's petition. The court then declined Mother's request to find that there is a beneficial relationship between Mother and K.W. such that terminating her parental rights would not be in K.W.'s best interest. The court terminated Mother's parental rights and selected adoption as K.W.'s permanent plan.
This appeal followed.
DISCUSSION
1. Section 388 Petition
Mother argues the court abused its discretion when it denied her section 388 petition because she submitted new evidence that her circumstances had changed and that continuing reunification services was in K.W.'s best interest because he was bonded with Mother and she could provide for K.W.'s long-term stability.
Section 388 permits a parent of a dependent child to petition for a hearing to change, modify, or set aside any previous court order. (§ 388, subd. (a).) "A section 388 petition must show a change of circumstances and that modification of the prior order would be in the best interests of the minor child." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) "[T]he change in circumstances must be substantial," as in "changed," not "changing" circumstances. (Ibid.) Typically, the parent must demonstrate changed circumstances by a preponderance of the evidence. (§ 388, subd. (a).) We review the juvenile court's ruling for abuse of discretion. (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686 ["The denial of a section 388 motion rarely merits reversal as an abuse of discretion."].)
This record lacks evidence of the significant type of change required to grant a section 388 petition. As the court noted at the hearing on the petition, changed circumstances would be if Mother had stopped using illegal substances with a substantial period of sobriety, was not relapsing, had not only completed a program but was out of the program, and had not used for a period of time. Mother could not present evidence of any of these. In her petition dated and filed February 28, 2018, Mother described her changed circumstances as that she had been in an inpatient drug treatment program since February 2, had a sponsor, and was actively addressing her sobriety.
While a parent's efforts to change and improve are always commendable, at best, the evidence Mother presented demonstrates only changing—not changed—circumstances. (In re Ernesto R., supra, 230 Cal.App.4th at p. 223 [changing circumstances are insufficient to warrant modifying a previous court order].) Mother has once again begun to address her serious substance abuse by entering yet another program. However, in light of her history of repeated relapses and active efforts to hide them from DPSS, and her inability to complete treatment and follow-up for a substantial length of time with after care, Mother's recent actions do not constitute the kind of substantial change required to grant her section 388 petition.
Because Mother did not establish the first prong required to prevail on a section 388 petition, we need not examine whether granting the petition and reinstating reunification services would be in K.W.'s best interest. The court did not abuse its discretion when it denied Mother's petition.
2. Parent-Child Relationship Exception to the Preference for Adoption
Mother argues the court erred when it declined her request at the section 366.26 hearing to apply the parent-child beneficial relationship exception to the preference for adoption. We affirm.
At the section 366.26 hearing, the juvenile court's task is to select and implement a permanent plan for the dependent child. When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re Marina S. (2005) 132 Cal.App.4th 158, 164 (Marina S.).) If the juvenile court finds by clear and convincing evidence that a child is likely to be adopted, the juvenile court must terminate parental rights, unless one of several statutory exceptions applies. (§ 366.26, subd. (c)(1); Marina S., at p. 164.)
Under section 366.26, subdivision (c)(1)(B)(i), the beneficial parent relationship exception may apply when a 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); see In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of showing either that "(1) continuation of the parent-child relationship will 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 [citation] or (2) termination of the parental relationship would be detrimental to the child." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
California courts have disagreed as to the applicable standard of review for an appellate challenge to a juvenile court ruling rejecting a claim that an adoption exception applies. We agree with the view expressed in In re K.P. (2012) 203 Cal.App.4th 614 at pages 621-622, that "the review of an adoption exception incorporates both the substantial evidence and the abuse of discretion standards of review." The substantial evidence standard of review applies to the factual determination of whether a beneficial parental relationship exists. (Ibid.) The abuse of discretion standard of review applies when determining whether the existence of that relationship constitutes a compelling reason for determining that termination would be detrimental to the child. (Ibid.)
Here, it is arguable whether Mother has maintained regular visitation and contact with K.W; the court found that she had not. Mother missed four of the eight visits offered between the 18-month review hearing and the section 366.26 hearing, which is the period covered by the section 388 petition.
More important, the court was correct when it determined that Mother did not establish that the benefit to K.W. of continuing his relationship with Mother outweighed the benefit he would receive from the stability of an adoptive home. As K.W.'s therapist told the social worker before the 12-month review hearing, K.W.'s well-being had significantly improved after he had begun to form a bond with the relative foster parents. K.W. was sleeping better and had stopped wetting the bed, and he reached out to the foster parents for support and assistance rather than trying to do things on his own. The therapist pointed out that Mother's lack of consistency in K.W.'s life was a major concern, and that the stress K.W. experienced because of this would have an increasing effect on his development the longer it continued. In addition, K.W.'s speech had improved considerably since he was removed from Mother, and testing determined that his lack of speech development while in Mother's care was not caused by a hearing problem, as Mother had asserted. Finally, K.W. himself told his counsel in stipulated testimony that he would be "very sad" if he could not visit with Mother, but he wanted to live with his foster parents. Considering these same factors, termination of Mother's parental rights would not be detrimental to K.W. K.W.'s sense of safety and security came from his relationship with his foster parents, whereas there is no evidence in this record that K.W.'s relationship with Mother was so strong that terminating it would do anything more than make K.W. "very sad." The court did not abuse its discretion, and its decision to terminate Mother's parental rights is based on substantial evidence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.