Opinion
E073421
02-24-2020
In re R.R., a Person Coming Under the Juvenile Court Law SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.R. et al., Defendant and Appellant.
William D. Caldwell, for Defendant and Appellant, J.R. Konrad S. Lee, for Defendant and Appellant, Ru.R. Jodi L. Doucette, Special Counsel, and Michelle D. Blakemore, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J-276264) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie Pace, Judge. Affirmed. William D. Caldwell, for Defendant and Appellant, J.R. Konrad S. Lee, for Defendant and Appellant, Ru.R. Jodi L. Doucette, Special Counsel, and Michelle D. Blakemore, County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
On May 22, 2018, a dependency petition was filed on behalf of R.R. pursuant to Welfare and Institutions Code section 300, et seq. R.R. had been removed from her parents shortly after her birth because her mother tested positive for methamphetamines and marijuana while in the hospital. Both parents were unable to remedy ongoing substance abuse issues during the course of R.R.'s dependency proceedings and as a result, the juvenile court issued an order terminating reunification services on February 4, 2019. The juvenile court summarily denied two subsequent petitions brought by R.R.'s mother pursuant to section 388 seeking to reinstate reunification services based upon an alleged change in circumstances. On June 27, 2019, the juvenile court terminated the parental rights of both R.R.'s parents and selected a permanent plan of adoption for R.R.
Undesignated statutory references are to the Welfare and Institutions Code.
R.R.'s mother appeals from the summary denial of her section 388 petitions, arguing the juvenile court abused its discretion in denying her an evidentiary hearing on her petitions. Both R.R.'s parents also challenge the order terminating their parental rights, arguing that the juvenile court erred in finding that the beneficial parent-child relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i), did not apply. We affirm the juvenile court's orders.
II. FACTS & PROCEDURAL HISTORY
R.R. was born in May 2018. She is the daughter of J.R. (mother) and Ru.R. (father). On May 20, 2018, San Bernardino County Children and Family Services (Department) received an immediate response referral reporting that mother had tested positive for methamphetamines and marijuana during birth and that R.R. had tested positive for methamphetamines as a result.
After consultation with a social worker that same day, mother agreed to sign an authorization to allow the Department to temporarily detain R.R.
On May 22, 2018, the Department filed a dependency petition on behalf of R.R. naming both mother and father. As against both mother and father, the petition alleged a failure or inability to protect R.R. as well as the inability to provide regular care for R.R. pursuant to section 300, subdivision (b). The petition also alleged the lack of provision for support against father pursuant to section 300, subdivision (g), because his whereabouts were unknown. At a detention hearing the following day, the juvenile court issued formal orders to detain R.R. in the custody of the Department and authorize placement of R.R. in the foster home where she had been temporarily placed. The juvenile court issued additional orders that mother and father provide the Department with information regarding all known maternal and paternal relatives; that they submit to random drug testing; and that they would be allowed supervised visits with R.R. once a week.
On July 10, 2018, the juvenile court held a joint jurisdictional and dispositional hearing on R.R.'s petition. Prior to the hearing, mother waived her right to a trial on the issues raised in the petition and submitted on the reports filed by the Department. Father did not appear for the hearing. The juvenile court adopted the Department's proposed orders and findings; ordered R.R. formally removed from mother's and father's custody; affirmed placement of R.R. in her current foster home; provided for weekly supervised visits between R.R. and her parents; and ordered parents to remain free from drug or alcohol use.
On January 10, 2019, the Department filed a status review report. The report noted that mother had completed 12 sessions of anger management as well as 12 sessions of parenting education and child abuse courses. It noted that father had not completed anger management and that both parents had failed to complete counseling, substance abuse testing, or a 12-step program related to substance abuse. The report further noted that neither parent had successfully completed on-demand or random drug testing. Specifically, mother failed to appear for on-demand testing on nine separate occasions and tested positive for opiates and marijuana during one of two random drug tests. Likewise, father failed to appear for on-demand drug testing on 14 different occasions and also tested positive for controlled substances during both his random drug tests. Both parents regularly participated in court-ordered visitation. The Department recommended termination of services, given both parents' apparent lack of interest or initiative in addressing ongoing substance abuse. In response, both parents contested the recommendation of the Department and the juvenile court set the matter for a contested hearing to be held on February 4, 2019.
On February 4, 2019, the Department filed an additional information to the court. It noted that both parents had indicated a desire to have R.R. placed with paternal grandparents; that R.R.'s paternal grandfather had been contacted regarding permanent placement of R.R.; but that the paternal grandfather had indicated it would be too much to take in an additional child. It further noted that in subsequent drug testing, mother had again tested positive for amphetamines and father had again tested positive for marijuana. At the six month review hearing that same day, the juvenile court found by clear and convincing evidence that reasonable services had been provided to both parents and that both parents failed to participate regularly or make substantive progress with respect to the court-ordered case plan. It then ordered reunification services terminated and set a new hearing pursuant to section 366.26 for June 4, 2019.
On May 29, 2019, the Department filed a report pursuant to section 366.26. The report recommended that mother's and father's parental rights be terminated and a permanent plan of adoption for R.R. be implemented. The report indicated that R.R. had bonded well with her current foster family and that her current foster parent was interested and willing to adopt R.R.
On June 4, 2019, mother filed a petition pursuant to section 388 seeking reinstatement of reunification services. The petition indicated that since termination of reunification services, mother had completed a number of additional courses, counseling and therapy. The petition did not address mother's prior unresolved substance abuse issues or mention any services specific to addressing substance abuse. The juvenile court summarily denied the petition on the grounds it did not state new evidence or a change of circumstances and that the proposed change would not promote the best interest of R.R.
On June 14, 2019, mother filed an amended petition pursuant to section 388 again seeking reinstatement of reunification services. The amended petition did not state any new facts from the petition filed on June 4, 2019, but attached additional certificates of completion for the services and classes, which mother had completed. On June 17, 2019, the juvenile court denied the amended petition again finding that it failed to state new evidence or a change of circumstances; that the requested order would not promote the best interests of R.R.; and that it had previously denied the same request 10 days prior.
On June 27, 2019, the juvenile court held a contested hearing pursuant to section 366.26. It accepted the Department's section 366.26 report into evidence. During the hearing, father testified he was R.R.'s biological father; that he disagreed with termination of his parental rights; that he had been consistently participating in weekly visitation with R.R.; and that R.R. appeared happy to see him during each visit. He was not questioned and did not offer any testimony regarding his progress with substance abuse issues. Mother confirmed she was R.R.'s biological mother; requested the juvenile court consider a lesser plan that would preserve her parental rights with respect to R.R.; testified she had been consistently participating in weekly visitation with R.R.; asserted she displayed appropriate parenting skills during visitation; and expressed the opinion that R.R. appeared happy to see her during each visit. Mother was not questioned and did not offer any testimony regarding her progress with substance abuse issues. Finally, a social worker testified that R.R.'s family members had been interviewed and denied native American ancestry; explained that R.R.'s paternal grandparents were deemed inappropriate for placement since grandmother's husband had a criminal history involving guns and weapons charges; and explained that no other relatives have come forward requesting placement of R.R.
At the time of hearing, the juvenile court found that mother's and father's relationship with R.R. was more akin to friendly visitors than parents and further stated that there had been no evidence presented to indicate detriment to R.R. if parental rights were terminated. Following the hearing, the juvenile court made a finding that clear and convincing evidence established that R.R. was generally and specifically adoptable; that R.R. was likely to be adopted; and ordered that mother's and father's parental rights be terminated.
III. DISCUSSION
A. Denial of Mother's Section 388 Petition Was Not An Abuse of Discretion
Here, mother does not challenge the juvenile court's initial order terminating reunification services, but contends the juvenile court abused its discretion in summarily denying her section 388 petitions seeking to reinstate reunification services following a subsequent change in circumstances. We find no abuse of discretion.
"Section 388 allows a person having an interest in a dependent child of the court to petition the court for a hearing to change, modify, or set aside any previous order on the grounds of change of circumstance or new evidence. The petition must be verified and 'shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order . . . ." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "The parent seeking modification must 'make a prima facie showing to trigger the right to proceed by way of a full hearing. . . . The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. [Citation.] If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. [Citation.]" (Ibid.)
Once reunification services have been terminated, " '[t]he burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.' [Citation.]" (In re Vincent M. (2008) 161 Cal.App.4th 943, 955.) "[I]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) Factors to consider in determining whether undoing the prior order would be in the best interests of the child include: "(1) The seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (Id. at p. 532.)
"We review the juvenile court's summary denial of a section 388 petition for abuse of discretion. [Citation.]" (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) "A ruling on a section 388 petition is 'committed to the sound discretion of the juvenile court, and the trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established . . . we may not reverse unless the juvenile court exceeded the bounds of reason, and we have no authority to substitute our decision for that of the lower court where two or more inferences can reasonably be deduced from the facts." (In re D.B. (2013) 217 Cal.App.4th 1080, 1088-1089; see also In re G.B. (2014) 227 Cal.App.4th 1147, 1158.)
Here, the juvenile court terminated reunification services following a contested hearing. At the time, the Department's reports acknowledged that mother had made progress with various education and counseling related services, but noted that mother had made no meaningful progress towards addressing her ongoing substance abuse issues. Thus, the record is clear that the initial reason for R.R.'s removal and dependency proceedings was mother's and father's substance abuse; that the primary reason they failed to reunify was their failure to meaningfully participate in drug testing and failure to test clean of drugs during the reunification period; and that the juvenile court terminated reunification services because of this ongoing problem despite mother's successful completion of courses and counseling related to other concerns.
Notwithstanding the unmistakable conclusion that the juvenile court terminated reunification services principally due to mother's ongoing drug problems, mother's section 388 petitions addressed various other issues, wholly neglecting to address any progress related to her longstanding drug problems. Mother's section 388 petitions represented she had completed a series of courses in individual therapy, parenting education, outpatient treatment, anger management, life skills, self-care, and healthy eating. Mother argued her successful completion of these courses constituted a change in circumstances. However, the petitions made no attempt to address any progress related to ongoing substance abuse. There was no indication any of the services were specific to substance abuse or drug rehabilitation; no indication mother had enrolled or completed the 12-step program she had previously been advised to complete; and no indication she had since regularly tested clean for drugs at any period of time. The petitions were entirely silent on the issue of substance abuse. Petitions that fail to address the very reason for R.R.'s dependency and mother's initial failure to reunify do not meet mother's burden to make a prima facie showing of a genuine change in circumstances. Accordingly, we find no abuse of discretion in the juvenile court's summary denial of mother's petition. B. Termination of Parental Rights Supported By Substantial Evidence
Both parents also appeal from the order terminating their parental rights, arguing that the juvenile court erred in concluding that the beneficial parent-child relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i), did not apply. We disagree.
1. Standard of Review & Applicable Legal Principles
"Once reunification services are ordered terminated, the focus shifts to the needs of dependent children for permanency and stability. . . . A section 366.26 hearing is designed to protect [the dependent child's] compelling rights to have a placement that is stable, permanent, and allows the caretaker to make a full emotional commitment to the child . . . adoption is the norm." (In re A.A. (2008) 167 Cal.App.4th 1292, 1320.) The juvenile court must terminate parental rights and order adoption unless one of the specified statutory exceptions exist. (Ibid.; see also In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.)
The existence of a beneficial parent-child relationship is one of the statutorily recognized exceptions to the Legislature's preference for a permanent plan of adoption. (§ 366.26, subd. (c)(1)(B)(i).) The "exception applies when there is a compelling reason that the termination of parental rights would be detrimental to the child. . . . [It] can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)
"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B., supra, 239 Cal.App.4th at p. 395; see also In re J.C. (2014) 226 Cal.App.4th 503, 530-531; In re K.P. (2012) 203 Cal.App.4th 614, 622; and In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) In considering whether substantial evidence supports the juvenile court's findings, "[i]t is not our function . . . to reweigh the evidence or express our independent judgment on the issues before the trial court. [Citation.] Rather, as a reviewing court, we view the record in the light most favorable to the judgment below and ' "decide if the evidence [in support of the judgment] is reasonable, credible and of solid value—such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence. [Citations.]" ' " (In re Jasmon O. (1994) 8 Cal.4th 398, 423.)
2. Substantial Evidence Supports The Juvenile Court's Determination That Parents Lacked A Beneficial Relationship With Their Child
The juvenile court here determined that both mother and father did not establish the existence of a beneficial parent-child relationship necessary to trigger the statutory exception, concluding that their relationship with R.R. was more akin to that of friendly visitors than parents. We therefore consider whether substantial evidence supports this finding and conclude that it does.
The existence of a beneficial parent-child relationship "consists of a two-prong analysis. . . . The first prong inquires whether there has been regular visitation and contact between the parent and child. . . . The second asks whether there is a sufficiently strong bond between the parent and child that the child would suffer detriment from its termination. [Citation.]" (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) The bond considered in the second prong "arises from day-to-day interaction, companionship and shared experiences [and] applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "No matter how loving and frequent the contact, and notwithstanding the existence of an 'emotional bond' with the child, 'the parents must show that they occupy "a parental role" in the child's life.' [Citations.]" (In re K.P., supra, 203 Cal.App.4th at p. 621.) "The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs . . . ." (In re Bailey J., supra, 189 Cal.App.4th at pp. 1315-1316; see also In re Marcelo B., supra, 209 Cal.app.4th at p. 643.)
Here, the first prong of the test is not at issue, as the parties do not contest that both parents regularly participated in visitation with R.R. Instead, the juvenile court concluded that the strength of the relationship did not equate with a parental bond, finding that both parents were more akin to friendly visitors in R.R.'s life.
The record indicates that R.R. had been removed from both parents shortly after her birth and had spent nearly her entire life in the custody of her foster parent. R.R.'s foster parent had been responsible for all of R.R.'s needs since shortly after R.R.'s birth. While mother's and father's visits with R.R. were positive, neither parent progressed beyond two hours of supervised visitation a week. Further, over the course of these visits, R.R. appeared more attached to her foster parent than either mother or father. It was reported that R.R.'s foster parent had a suitable home where R.R.'s needs would be met. While both parents testified at the time of hearing regarding their love and emotional bond with R.R., neither offered any testimony to suggest they could adequately provide for R.R.'s needs. In fact, both parents had previously suggested R.R. be placed with a paternal grandparent, who indicated when interviewed that he had already been left to provide for father's other children without help from father.
This evidence supports the conclusion that each relevant factor weighs against finding the existence of a beneficial parent-child relationship. Thus, substantial evidence supports the juvenile court's determination that a beneficial parent-child relationship did not exist within the meaning of section 366.26, subdivision (c)(1)(B)(i), to preclude termination of parental rights.
3. The Juvenile Court Did Not Abuse Its Discretion In Finding Lack Of Detriment
Parents also contend the juvenile court abused its discretion in concluding that termination of parental rights would not be detrimental to R.R. Again, we disagree.
Even assuming parents had shown the existence of some significant parental relationship with R.R., such a showing alone would not preclude termination of their parental rights. "The statutory exceptions merely permit the court, in exceptional circumstances . . . to choose an option other than the norm, which remains adoption." (In re A.A., supra 167 Cal.App.4th at pp. 1320.) "[B]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement. [Citation]" (In re K.P., supra, 203 Cal.App.4th at p. 621.) Thus, a prima facie showing of a parent-child relationship "does not guarantee the court finding the existence of the exception: the court may still find that the parent-child relationship is not significant enough to 'outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' [Citation.]" (In re Grace P., supra, 8 Cal.App. 5th at p. 615.) The juvenile court must still determine "whether the existence of that relationship . . . constitutes 'a compelling reason for determining that termination would be detrimental to the child.' " (In re K.P., supra, 203 Cal.App.4th at p. 622.) This aspect of the juvenile court's decision is reviewed for abuse of discretion. (Ibid.)
Here, in addition to finding that both mother's and father's relationship with R.R. did not qualitatively resemble that of a parent, the juvenile court also stated it did not "have evidence to demonstrate that termination of parental rights would be detrimental to the child to the extent that I would need to find it to overrule the preference for adoption." It was mother's and father's burden not only to prove the existence of a beneficial relationship, but to provide the juvenile court with evidence of detriment in order to establish the statutory exception. (In re Anthony B., supra, 239 Cal.App.4th at p. 395 ["the parent bears the burden of showing that the termination of parental rights would be detrimental under one of the exceptions listed in section 366.26"].) Here, other than conclusory assertions, neither mother's nor father's briefs suggest what detriment R.R. would suffer from termination of their parental rights. Nor does either brief direct us to evidence in the record from which any detriment can be inferred. The burden was on mother and father to produce evidence of detriment for the juvenile court's consideration. In the absence of such evidence, we find no abuse of discretion in the juvenile court's determination that any relationship R.R. may have had with mother and father was not a compelling reason to preclude termination of parental rights.
IV. DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.