Opinion
A152285
03-15-2018
In re A.O., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. J.V., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. 4934DEP)
Appellant J.V. (Mother) contends the juvenile court erred in denying her Welfare and Institutions Code section 388 motion seeking reunification services with A.O. (Minor), born May 2010. Mother also contends the court erred in failing to apply the beneficial parental relationship exception to termination of parental rights. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
On July 25, 2016, respondent Sonoma County Human Services Department (Department) filed a section 300 petition (Petition) alleging that Minor suffered, or was at risk of suffering, serious physical harm due to neglect and substance abuse by Mother (§ 300, subd. (b)) and that Minor was left without provision for support due to Mother's incarceration (§ 300, subd. (g)).
As to section 300, subdivision (b), the Petition alleged: "On or about July 22, 2016, the home was found to be in disarray and highly cluttered. There was a strong smell of marijuana and marijuana was found in the living room. The mother's bedroom smelled strongly of urine; drug paraphernalia including tin foil with a black substance, syringes, baggies, a pipe, and spoons were found on the mother's bed as well as in an open bedside stand. The mother stated she smoked heroin that morning. The child was not present at the home; the mother stated the child was with the maternal grandmother. The social worker and law enforcement went to the maternal grandmother's home where the child was found. The maternal grandmother's home was highly cluttered and smelled of marijuana. The child was sitting on the bed; next to the bed, within reach of the child, was a nightstand with a partially smoked, hand-rolled marijuana cigarette on it. The mother was arrested for violation of probation and transported to the Sonoma County Main Adult Detention facility."
The Petition also alleged Mother had been placed on probation in 2013 following a conviction for being under the influence of a controlled substance (Health & Saf. Code § 11550, subd. (a)). She failed to comply with a probation condition requiring that she participate in residential treatment, and a bench warrant was issued in July 2016. The Petition alleged that, between May 2001 and March 2016, Mother had been arrested six times on charges related to substance abuse.
The Department's August 2016 jurisdiction/disposition report recommended that the juvenile court sustain the Petition under section 300, subdivision (b) but strike the allegations under section 300, subdivision (g) (relating to Mother's incarceration). The Department recommended that Mother receive reunification services while Minor remained out of home. In her interview with the Department, Mother said she needed help and was presently "unfit to be a mom." She acknowledged she was a heroin addict and said she had been a drug addict her entire life. Mother described a traumatic childhood. She said she was raised by the "system" from the age of eleven, her father was addicted to heroin, her mother was addicted to methamphetamine, and there was constant domestic violence in the home. She began using methamphetamine at the age of eleven after being raped by a babysitter and by a group of gang members. The maternal grandmother confirmed Mother started using methamphetamine when she was eleven. Mother started using heroin intravenously about 18 months before the filing of the Petition, following the death of her brother in a motorcycle accident. Previously, she was a methamphetamine user. She had been diagnosed with depression and Post Traumatic Stress Disorder, but she thought she also had bipolar disorder. Mother admitted she did not know how to deal with her childhood trauma, which "has largely contributed to her substance abuse." She acknowledged she needed inpatient treatment and said she would do whatever it took to get Minor returned to her care. The social worker provided Mother a referral for substance abuse treatment and bus passes. Minor was available for supervised visitation, but Mother did "not [make] herself available to visit with" Minor.
The Department's report also described an interview with Minor, who said she recently had been living with her grandmother and visiting Mother on weekends. Minor wanted to live with Mother and her maternal grandfather, or with her maternal grandmother. At the time of her removal, Minor had severe head lice, and she struggled with basic hygiene tasks, such as brushing her teeth and bathing.
In an addendum report, the Department observed that, under section 361.5, subdivision (b)(13), reunification services could be bypassed due to Mother's chronic substance abuse. Nevertheless, the Department continued to recommend that Mother receive reunification services, because "the strength of [the] bond with [Minor] is very strong." The Department also noted that Minor "clearly expressed her desire to live with" Mother and reported "fond and loving memories of Mother.
As relevant, section 361.5, subdivision (b) provides that "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence . . . . [¶] (13) That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible."
Mother did not appear for a settlement conference on September 7, 2016, and, in a September 13 updated report, the Department recommended bypass of reunification services. The Department noted that Mother had failed to enter an inpatient substance treatment program despite "numerous opportunities and referrals." Mother had "continually not shown up to her . . . supervised visitation" and had seen Minor only once, when she took Minor out of school without permission.
At the October 31, 2016 jurisdiction/disposition hearing, Mother's counsel indicated that she would be entering a residential treatment program at the end of the week. Mother's counsel submitted on the Department's report, but expressed intent to file a section 388 petition in the future. The juvenile court sustained the Petition, removed Minor, and bypassed reunification services. The court scheduled a section 366.26 hearing on February 16, 2017.
On February 6, 2017, the Department filed its section 366.26 hearing report recommending the court terminate parental rights and order a plan of adoption. Mother did not participate in visitation during the first three months of the dependency case, and then she took Minor out of school without permission in September 2016. The first authorized visit at the end of October was awkward. After Mother entered residential treatment in November, Minor was transported to the program for weekly visits. The six visits that occurred there went well; Mother and Minor were happy to see each other and affectionate. But visitation was disrupted after Mother left the facility on January 13, 2017, and her whereabouts were unknown. Mother contacted the social worker on January 20, and arrangements were made for twice-monthly visitation.
The section 366.26 hearing report also provided an update regarding Minor's progress in foster care. Her health issues had largely been addressed and she was developmentally on track. She was academically behind due to prior irregular schooling, but she enjoyed school and was described as a quick learner. She had some emotional and behavioral issues, which the report described as "adjustment issues . . . that are typical for children in her situation." The report noted that Minor "has been clear in her desire to return to her birth family and she seemed to be caught off guard when this did not happen." She "expressed concern that she will no longer get to see [Mother] or grandmother if she gets adopted." The Department opined Minor was adoptable and it would be in her best interest.
The section 366.26 hearing was continued and, on March 30, 2017, Mother filed a section 388 petition seeking six months of reunification services. Mother contended her circumstances had changed because she had been sober for more than five months; completed two months of residential treatment in December 11, 2016; consistently attended an outpatient treatment program since January 25, 2017; was residing in a sober living home that accepts mothers and children; and completed a domestic violence program. She contended reunification services were in Minor's best interests because Minor had been raised by Mother and her family; the Department had originally recommended reunification services; and Mother's visits with Minor were affectionate and Minor wanted them to continue. At a May 17, 2017 hearing on the section 388 petition, the juvenile court found that "[M]other's circumstances are changing but have not changed and . . . there is not a showing, as required, that it would be in the child's best interests for the Court to grant" Mother's petition.
The section 366.26 hearing took place on June 19, 2017. The parties agreed Minor was adoptable. Mother's counsel argued the beneficial parental relationship applied, although Mother was not present to provide testimony about the nature and quality of her relationship with Minor. The court noted "Mother was present when the matter was set and there is no legal justification for her non-appearance today." The court terminated parental rights and ordered a permanent plan of adoption.
DISCUSSION
I. Mother's Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her section 388 petition seeking reunification services with Minor. We reject the claim.
Section 388 permits a parent to petition the juvenile court to change, modify, or set aside any previous order made in the dependency proceeding based on changed circumstances. "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A "parent seeking modification must 'make a prima facie showing to trigger the right to proceed by way of a full hearing.' " (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) "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.)
Section 388 provides in pertinent part that: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court."
The California Supreme Court explained in In re Marilyn H. (1993) 5 Cal.4th 295, at page 309, that section 388 protects a parent's due process rights while recognizing a dependent child's need for stability: "The parent's interest in having an opportunity to reunify with the child is balanced against the child's need for a stable, permanent home. The parent is given a reasonable period of time to reunify and, if unsuccessful, the child's interest in permanency and stability takes priority. Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child's need for prompt resolution of his custody status."
"On appeal, we will not reverse the decision of the juvenile court unless the parent establishes the trial court abused its discretion." (In re Casey D., supra, 70 Cal.App.4th at p. 47.) This standard of review encompasses a juvenile court's decision whether a parent made a sufficient prima facie case to require an evidentiary hearing. (In re A.S. (2009) 180 Cal.App.4th 351, 358.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
In the present case, the focus of the proceeding had shifted to permanency because reunification services were bypassed; Mother does not contend the juvenile court erred in bypassing services. We conclude Mother has not shown the court abused its discretion in denying her section 388 petition without a hearing. First, Mother failed to make a prima facie showing of changed circumstances. The allegations of her petition, liberally construed (In re Marilyn H., supra, 5 Cal.4th at p. 309), show Mother was sober and had some sources of support. However, Mother's section 388 petition did not indicate she was "currently able to provide [Minor] a stable, safe, permanent placement." (In re A.S., supra, 180 Cal.App.4th at p. 358.) Neither did the section 388 petition provide any basis for the juvenile court to conclude that Mother had addressed the severe childhood trauma that she described as the underlying cause of her substance abuse. Instead, Mother "sought only to continue the dependency proceedings" (In re A.S., at p. 358), in hope that, given enough time, she might be able to reunify with Minor one day. Mother alleged only changing, not changed, circumstances. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1072 ["At best, his petition showed the circumstances were changing, which is insufficient to warrant a hearing on a section 388 modification petition"].)
Second, Mother failed to make a prima facie showing that Minor's best interests would be promoted by a grant of six months of reunification services. Mother showed only changing circumstances and, based on her lifetime of substance abuse and unaddressed trauma, there was little basis to conclude she would be able to reunify with Minor within six months. By the time Mother filed her section 388 petition, the focus had shifted to Minor's need "for permanency and stability," and the juvenile court was required to consider Minor's "compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that which allows the caretaker to make a full emotional commitment." (In re Marilyn H., supra, 5 Cal.4th at pp. 306, 309.) It had been difficult for Minor to accept that her case was moving toward adoption, and to reinstate reunification services absent a likelihood of reunification would have undermined the emotional progress Minor had made. "[D]elaying the selection of a permanent home for a child to see if a parent . . . might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.] ' "[C]hildhood does not wait for the parent to become adequate." ' " (In re Casey D., supra, 70 Cal.App.4th at p. 47.) The juvenile court did not abuse its discretion.
II. The Beneficial Parental Relationship Exception
At the section 366.26 hearing, a juvenile court must determine a permanent plan of care for the child. (In re Casey D., supra, 70 Cal.App.4th at p. 50.) The statute provides three alternatives for permanent placement: adoption, guardianship, and long-term foster care. (§ 366.26, subd. (b); In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Adoption is the permanent plan preferred by the Legislature "because it gives the child the best chance at [a full emotional] commitment from a responsible caretaker." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348; accord In re Celine R. (2003) 31 Cal.4th 45, 53.) Accordingly, if a juvenile court finds a child is likely to be adopted, it must terminate parental rights and order the child placed for adoption unless it finds, for one of six "compelling reason[s]," that termination of parental rights would be detrimental to the child. (See § 366.26, subd. (c)(1)(B)(i)-(vi).) The burden is on the parent to show an exception applies. (In re C.B. (2010) 190 Cal.App.4th 102, 122.)
The beneficial parental relationship exception applies when termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Assuming Mother's visitation satisfied the first prong of the exception, the question is whether Mother showed the relationship so benefitted Minor that termination of parental rights would be detrimental. To establish this, Mother was required to demonstrate the relationship "promotes 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 re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re C.B., supra, 190 Cal.App.4th at p. 124.) "[T]he 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., at pp. 575-576; accord In re C.B., at p. 124.) If the court finds the relationship with the parent does not benefit the child significantly enough to outweigh the Legislature's strong preference for adoption, the exception does not apply. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
It appears the juvenile court could have declined to apply the exception on the basis that Mother had not shown regular visitation. At the time of the Department's last report in February 2017, Mother did not have an impressive record of visitation because the only consistent period of visitation was while she was in residential treatment and Minor was brought to her on a weekly basis. The section 366.26 hearing did not occur until four months later, and there is no record of Mother's visitation with Minor during that period. Mother faults the Department for failing to provide the juvenile court an update, but she does not point to anything showing she objected below to the absence of an update. The transcript of the section 366.26 hearing contains no such objection, nor a request from Mother's counsel that the Department's social worker testify regarding visitation. It was Mother's burden to show the applicability of the beneficial parental relationship exception and Mother failed to appear at the section 366.26 hearing, where she could have testified regarding visitation. On the other hand, the Department's counsel did appear to agree Mother had only missed the most recent visit with Minor. In any event, because we conclude Mother did not show detriment, we need not decide whether the court could have declined to apply the exception based on lack of a showing of regular visitation. --------
Our review is either for substantial evidence, abuse of discretion, or a combination of the two. (See In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) In any event, "[t]he practical differences between the [substantial evidence and abuse of discretion] standards of review are not significant" (Jasmine D., supra, 78 Cal.App.4th at p. 1351), and our conclusion is the same under any of these standards.
In arguing the juvenile court erred, Mother relies on the "very strong" bond between Mother and Minor referenced in the Department's September 2016 report, as well as Minor's desire to maintain her relationship with Mother. However, the beneficial parental relationship exception requires more than a showing that the parent has maintained frequent and loving contact with the child, and that the two share an emotional bond. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) A parent cannot "derail an adoption merely by showing the child would derive some benefit from continuing a relationship." (Jasmine D., at p. 1348.) Indeed, "continued interaction between the biological parent and child will almost always confer some benefit on the child." (In re Zachary G., supra, 77 Cal.App.4th at p. 811; accord Autumn H., at p. 575.) Instead, Mother was required to show " 'exceptional circumstances' "—that the relationship promotes the well-being of Minor to such a degree as to outweigh the well-being she would gain in a permanent home. (Jasmine D., at pp. 1348-1349; see also In re G.B. (2014) 227 Cal.App.4th 1147, 1165.)
In the present case, the evidence falls far short of that necessary to mandate application of the beneficial parental relationship exception. A useful comparison is the evidence presented in In re Amber M. (2002) 103 Cal.App.4th 681, in which the Court of Appeal held the juvenile court erred in failing to apply the exception. (Id. at p. 690.) In that case, application of the exception was supported by substantial and specific testimony; as Amber M. summarized, "The common theme running through the evidence from the bonding study psychologist, the therapists, and the CASA is a beneficial parental relationship that clearly outweighs the benefit of adoption." (Id. at p. 690; see also In re Scott B. (2010) 188 Cal.App.4th 452, 471 ["The CASA repeatedly stated in her reports that Mother and [the minor] have a very close relationship and it would be detrimental to [the minor] for their relationship to be disrupted."].) In the present case there was no comparable testimony; Mother did not attend the section 366.26 hearing or even submit a declaration in support of application of the beneficial parental relationship exception. (See In re J.C. (2014) 226 Cal.App.4th 503, 533-534 [distinguishing Amber M. and stating "[t]here was no bonding study or evidence, other than Mother's self- serving declaration, to counter the social worker's conclusion [the minor] would not suffer any detriment"].)
A juvenile court considering the record in this case could reasonably conclude that the permanency and stability Minor would gain in an adoptive home outweighed any benefit she might gain from continuing her relationship with Mother. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1348; see also In re Angel B. (2002) 97 Cal.App.4th 454, 466 ["A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent."].) The juvenile court did not err in finding the beneficial parental relationship exception inapplicable.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.