Opinion
A158042
08-05-2020
In re Jordan H., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.H., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JD-028326-01)
In this dependency proceeding, the juvenile court denied the petition of appellant A.H. (Mother) seeking to reinstate reunification services with her son, Jordan H. (Welf. & Inst. Code, § 388.) Later, and after holding a hearing under section 366.26, the court terminated Mother's parental rights. Mother challenges both orders on appeal. She contends (1) the court erroneously determined it lacked authority to entertain Mother's request to reinstate reunification services, and (2) the court should have applied the beneficial parental relationship exception to termination contained in section 366.26, subdivision (c)(1)(B)(i). We affirm the orders.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
I. BACKGROUND
A. Detention , Jurisdiction , and Disposition
In May 2017, the Alameda County Social Services Agency (the Agency) filed a juvenile dependency petition on behalf of Jordan, then nine years old. The petition alleged Mother left Jordan unsupervised in a garage where they both were living, and Mother could not be contacted. The garage lacked electricity, air circulation, and food for Jordan. It was unknown whether Jordan's other parent, who lived in Kentucky, could care for him.
Mother later informed the Agency that Jordan's other parent is her spouse and transgender. We refer to the spouse as the "other parent," as do the parties.
At a detention hearing in June 2017, the juvenile court vested Jordan's temporary placement and care with the Agency and ordered him detained.
In its report for the jurisdictional hearing, the Agency noted that Mother and Jordan had been living with Mother's brother in a garage behind a main house occupied by other residents. After the other residents told her to move out, Mother started camping out in the streets. Mother stated her brother used methamphetamine, but denied using drugs herself. She also explained she was married to, but was separated from, Jordan's other parent. The Agency had no contact with the other parent.
The Agency recommended that the juvenile court declare Jordan a dependent, find true the petition's allegations, and provide Mother with reunification services. The Agency also recommended that Mother participate in random substance abuse testing and parenting education and seek suitable housing.
At the jurisdictional hearing in June 2017, the juvenile court found Jordan's home state may have been Kentucky, but asserted temporary emergency jurisdiction over Jordan. The court continued the matter, temporarily detained Jordan, and ordered Mother to participate in substance abuse testing and parenting education classes.
In August 2017, the Agency filed an amended petition, adding allegations that Mother tested positive for drugs in late July. Mother also could not stay awake during visits with Jordan and had noticeable needle marks on her stomach area.
At the September 2017 jurisdictional hearing, the juvenile court sustained the amended petition's allegations, adjudged Jordan to be a dependent, and ordered the Agency to provide family reunification services to Mother. The court further ordered Mother to participate in parenting education services and substance abuse testing.
B. The Review Hearings and the Termination of Reunification Services
In its report for the six-month review hearing, the Agency recommended that Jordan remain a dependent and in his out-of-home placement and that reunification services continue to be provided to Mother. Mother admitted she used methamphetamine, was homeless, and hoped to enter an inpatient drug treatment program. Mother struggled to begin treatment for substance abuse. In addition, Mother had difficulty staying engaged with Jordan during their supervised visits.
The six-month review hearing focused mainly on the propriety of Jordan's placement with his foster family, whose ability to address Jordan's special education and developmental needs had become questionable. At the continued hearing in April 2018, the Agency noted it had met with the foster family and felt comfortable with recommending that Jordan remain in his placement until the end of the school year. The juvenile court adopted the Agency's recommendations and ordered that Jordan remain out of home and that reunification services continue to be provided to Mother.
In its 12-month status review report, the Agency reported that Mother entered the Magnolia Women's Recovery Program, an inpatient substance abuse treatment program. Mother and Jordan continued to have weekly visits for two hours; one hour of therapeutic visitation, followed by one hour of supervised visitation. Since entering Magnolia, Mother was able to focus during visits and engage in conversation with Jordan. The Agency, however, expressed concern that Mother had only recently begun substance abuse treatment and her ability to remain sober was uncertain. The Agency also questioned whether Mother could establish paternity of Jordan.
At the 12-month review hearing in June 2018, the juvenile court found that Mother made partial progress in her substance abuse treatment. The court ordered that Jordan remain a dependent and that reunification services continue to be provided to Mother until the permanency hearing. The court set the permanency hearing in November 2018.
In its 18-month status review report, the Agency explained Mother struggled to enter and stay in a substance abuse program. In June 2018, Mother left the program at Magnolia and remained homeless for the majority of the reporting period. In late October 2018, Mother entered the substance abuse treatment program at Orchid Women's Recovery Center. During supervised visits with Jordan, Mother supported Jordan's confidence and self-esteem while assisting him with homework. Mother at times struggled to talk to Jordan about his negative emotions. She also had difficulty with concentrating and sometimes fell asleep. The visitation center suspected Mother was using drugs while she was in the restroom during one visit.
At the 18-month review hearing, Mother reported she was still enrolled in Orchid's program and had been attending Alcoholics Anonymous meetings. She requested a contested hearing, which the court set in December 2018.
At the December 2018 hearing, the Agency objected to extending reunification services to Mother. The Agency asserted Mother had been inconsistent in her progress over the entire 20 months since removal, despite her recent enrollment in Orchid's program. Mother was still using drugs over the summer when visiting Jordan and failed to provide plans for housing after completing the program. The Agency also noted that Jordan had recently moved to a new foster home and was "doing really well." The court adopted the Agency's recommendations and terminated reunification services. The court set a section 366.26 hearing on April 11, 2019.
C. Mother's Petition To Reinstate Reunification Services
Prior to the section 366.26 hearing, Mother filed a form JV-180 petition under section 388 seeking to reinstate reunification services and vacate the section 366.26 hearing. Mother alleged that continuing reunification services was appropriate, "given [her] progress to date in addressing the issues that formed the basis for Jordan's removal."
In support of the petition, Mother attached her declaration stating that she had completed a six-month treatment program at Orchid, which consisted of alcohol and drug education, individual and group processing, relapse prevention, anger management, treatment and re-entry planning, parenting counseling, and Alcoholics Anonymous and Narcotics Anonymous meetings. Mother stated she had been seeing a psychologist three times a month since late November 2018. She also averred she had consistently tested negative for drugs since late December 2018. Mother also planned to move in with her significant other, who had received a federal housing voucher.
To support her declaration, Mother attached as exhibits a letter from Orchid confirming she had current housing and had recently completed a six-month treatment program; a letter from her treating psychologist confirming her participation in therapy; signed attendance sheets for the Twelve Step program meetings; a copy of the housing voucher issued to Mother's boyfriend; an outline of her relapse prevention plan; and her negative drug test results.
In June 2019, the juvenile court held a hearing for a review of the status of proceedings and the Agency's section 366.26 report. The court expressed concern it lacked authority to extend services, stating "there is no statute that allows [it] to extend services . . . past 24 months" or "even past 18 months based upon the circumstances that we have now." It explained that in order to grant Mother's request, it had to find "by clear and convincing evidence" that "additional reunification service[s] [are] in the best interest[s] of the child where a parent is making significant and consistent progress in a substance abuse treatment program." (§ 366.22, subd. (b).) The court commented, "[t]hat ship sailed" and Mother "had not done enough at [the 18-month mark] to get us to a point where we could get the child placed back with her or a substantial probability that that would occur." It added, "we're outside of any timeline that is appropriate and in the best interests of any child, and there is no legal vehicle for me to do what you are asking me to do." The court denied Mother's request for a hearing on her section 388 petition and declined to continue the section 366.26 hearing.
D. The Termination of Parental Rights
In its report for the section 366.26 hearing, the Agency urged the juvenile court to terminate Mother's parental rights and recommend adoption as the permanent plan. The report noted Jordan was "a vulnerable child" with "insecurity and instability" due to experiencing "homelessness, parental drug abuse, and exposure to violence." Jordan also recently disclosed for the first time he sometimes heard voices in his head. Jordan's foster father was committed to adopting Jordan and was "helping Jordan with his social/emotional development, reading and education skills, and general life skills."
The report also recounted Mother's visitation history with Jordan. The Agency explained Mother "can at times, especially when she is in substance abuse treatment, be present and emotionally available for [Jordan]." But the Agency still had concerns that "[M]other has not taken advantage of every visit that has been scheduled for her and Jordan" and "has not moved past supervised visitation." "At times, she has been distracted, inattentive, and/or nodded off during visits. [Jordan] has been in more of a caretaking roll [sic], than a child roll [sic], during some visits." The Agency also stated that Mother was "still relatively new to sobriety," "has not yet shown that she is able to maintain her sobriety when she is out in the general community," and "is still learning/developing the skills she needs to live a sober lifestyle and to care for herself." The Agency also reported that Jordan's contact with the other parent had been sporadic since October 2017.
The court-appointed special advocate also submitted a report for the section 366.26 hearing. She recommended that Jordan be placed in an open adoption with his foster father while continuing to maintain regular contact and visits with Mother. Jordan had settled into his new foster home and was continuing to build a strong relationship with his foster father. The advocate also saw positive changes in Jordan since living with his foster father, including an improvement in his reading abilities.
At the section 366.26 hearing, which concluded on August 2, 2019, the court admitted the social workers' reports and heard testimony from Mother, the foster father, the special advocate, the supervised visitation monitor, and the Agency's adoptions social worker.
Mother admitted she has had a problem with methamphetamine use and knew that the allegations in this matter were brought because of her drug use. Mother testified that although her methamphetamine use made her "emotionally unavailable," Jordan "always had clean clothes. He was at school. He was fed, and he had his necessities met." Mother also had just completed a substance abuse treatment program and had been clean for eight months, her longest period of sobriety in the last four years. According to Mother, Jordan would benefit from continuing a relationship with her because Jordan was her son and they had "an emotional connection and a bond."
The visitation monitor testified that Mother and Jordan enjoyed their time together, but "[t]hey [did not] really talk about anything." The monitor recommended supervised modified visits, in which she would "go in and check [on Jordan and Mother] like every 20 minutes, and . . . observe for a couple of minutes." She did not recommend unsupervised visits.
The court-appointed special advocate testified that since working with Jordan in August 2018, she has observed a change in Jordan after he was placed with the foster father, including a dramatic improvement in his reading capability. The advocate testified that Jordan appeared excited when she spoke with him about continuing to live with the foster father.
The social worker testified she had met with Jordan every month since February 2019, but had never observed a visit between Mother and Jordan. Based on her review of reports on Mother's visitation history, the social worker recommended that Jordan be adopted by his foster father, but noted that continued supervised visits with Mother would be appropriate. The social worker expressed concern that Mother was not focused during certain visits and had difficulty discussing Jordan's negative emotions. According to the social worker, Mother and Jordan "just enjoy each other in the moment," and Mother had failed to "show some parenting." Mother did not contact Jordan's therapist or school to discuss his special needs; did not talk to Jordan about his feelings with respect to school; did not establish parental boundaries; and did not initiate further discussions with the social worker after learning Jordan began hearing voices in his head. The social worker described Mother's and Jordan's interactions "as if it's like two peers playing."
After hearing testimony and argument, the juvenile court found it was likely that Jordan would be adopted, terminated both parents' rights in Jordan, and selected adoption as the permanent plan for Jordan.
II. DISCUSSION
A. The Denial of Mother's Section 388 Petition
Mother contends the juvenile court prejudicially erred in denying her section 388 petition because it incorrectly determined it lacked the authority to grant the petition. We disagree.
Under section 388, a parent may petition to modify a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) The petition must allege why the requested change is "in the best interests of the child." (§ 388, subd. (a)(2).) If it appears the best interests of the child "may be promoted by the proposed change of order," the court is required to hold a hearing on the petition. (§ 388, subd. (d).)
When considering the constitutionality of section 366.26, our Supreme Court in In re Marilyn H. (1993) 5 Cal.4th 295 (Marilyn H.) recognized the importance of section 388 in satisfying due process and fundamental fairness. It stated that "throughout the reunification period and thereafter, the parent has the continuing right to petition the court for a modification of any of its orders based upon changed circumstances or new evidence pursuant to section 388." (Id. at pp. 308-309, italics added.) As such, section 388 provides an "escape mechanism" to allow the juvenile court to consider new information that may justify a change in a prior reunification order. (Id. at pp. 309-310.) As the Marilyn H. court explained, "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. Thus, both substantive and procedural due process are satisfied." (Id. at p. 309.)
"Marilyn H. makes clear that reunification pursuant to section 388 must remain a viable possibility even after the formal termination of reunification services in a 12- or 18-month review if there is, as the court put it, a 'legitimate change of circumstances.' " (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The section 388 petition is "the final opportunity available to a parent to demonstrate the possibility circumstances may have changed enough to warrant further reconsideration of reunification." (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1508.)
We review the denial of a section 388 petition for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) Here, the juvenile court expressly stated it did not have the authority to entertain the petition, because "there is no statute that allows for [it] to extend services . . . past 24 months" or "even past 18 months based upon the circumstances that we have now." The court found Mother "had not done enough [as of the 18-month review date] to get us to a point where we could get the child placed back with her or a substantial probability that that would occur." (§ 366.22, subd. (b).) It therefore denied Mother's request for a hearing on the petition.
Mother argues that "where the petitioner presented a prima facie case of changed circumstances sufficient to trigger her entitlement to a section 388 hearing, this Court cannot presume that a hearing would have been fruitless" (In re Lesly G. (2008) 162 Cal.App.4th 904, 916) and must reverse under a prejudice per se standard because she was denied the right to put on a case for changed circumstances. (Cf. Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677 [grant of pretrial motion in limine precluding plaintiff from presenting relevant evidence at trial was not only an abuse of discretion but also amounted to due process violation].)
But even assuming Mother is correct that the trial court misperceived its powers and failed to recognize it had discretion to entertain a section 388 petition as late as the section 366.26 hearing, we see no prejudice. A parent seeking modification under section 388 must "make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]" (Marilyn H., supra, 5 Cal.4th at p. 310.) "There are two parts to the prima facie showing: 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.]" (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) Section 388 requires that a petition must be verified and "shall set forth in concise language any change of circumstance or new evidence that is alleged to require the change of order." (§ 388, subd. (a)(1); see Cal. Rules of Court, rule 5.570(a).) "The petition may not be conclusory. '[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence' is required. [Citation.]" (In re Anthony W., at p. 250.)
It is the second prong of this test that Mother failed to overcome here. Her petition focused primarily on demonstrating that the circumstances that necessitated Jordan's removal had changed. But as to the best interests of Jordan, the petition merely alleged that "[t]he goal of dependency proceedings is to reunify a child with at least one parent." This conclusory statement does not remotely establish that reunification would be in Jordan's best interests. There is no indication anywhere in her petition that Mother satisfied the second prima facie requirement.
On appeal, Mother for the first time presents arguments and evidence to show she met the requisite prima facie showing. However, her failure to raise such points in the juvenile court forfeits them on appeal. (See In re S.B. (2004) 32 Cal.4th 1287, 1293-1294.) In any event, we find Mother's arguments unpersuasive. Mother points to her recent sobriety, which, while commendable, did not demonstrate it would be in Jordan's best interests to remove him from his current placement to live with Mother. (See In re Kimberly F., supra, 56 Cal.App.4th at p. 529 ["It 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."].) Additionally, although Mother notes that she and Jordan shared positive and loving interactions, Mother does not explain why additional reunification services outweighed Jordan's interest in stability, the court's paramount concern at that point in the proceedings. (See Marilyn H., supra, 5 Cal.4th at p. 310.)
Because Mother's section 388 petition failed to make the necessary prima facie showing, we conclude the court's error in failing to consider the petition was harmless.
B. The Termination of Mother's Parental Rights
Mother next contends that the juvenile court erred in failing to apply the beneficial parental exception to adoption. (§ 366, subd. (c)(1)(B)(i).) The record does not support application of the exception.
Once the juvenile court terminates reunification services and determines the child is adoptable, it "must order adoption and its necessary consequence, termination of parental rights, unless one of the specified" exceptions stated in section 366.26, subdivision (c)(1) "provides a compelling reason for finding that termination of parental rights would be detrimental to the child." (In re Celine R. (2003) 31 Cal.4th 45, 53; In re Breanna S. (2017) 8 Cal.App.5th 636, 645.)
The exception at issue in this case—the beneficial parental relationship exception—applies if "[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).) The parent bears the burden of establishing the existence of the exception, which applies only in "extraordinary" cases. (See In re K.P. (2012) 203 Cal.App.4th 614, 621.)
The court considers two prongs when determining whether a parent has met her burden to establish the beneficial relationship exception. The first prong examines the consistency of the parent's visitation with the child. (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) "Regular visitation exists where the parents visit consistently and to the extent permitted by court orders." (In re I.R. (2014) 226 Cal.App.4th 201, 212.)
The second prong involves a more nuanced analysis and requires a parent to prove that the bond she shares with her child "is sufficiently strong that the child would suffer detriment from its termination." (In re Grace P., supra, 8 Cal.App.5th at p. 613; accord In re Marcelo B. (2012) 209 Cal.App.4th 635, 643 [a "beneficial relationship 'is one that "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" ' "].) To meet her burden, Mother must do more than show frequent, loving contact, an emotional bond with the child, or pleasant visits; she must show that she occupies a parental role in her son's life. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527, disapproved on another ground in Conservatorship of the Person of O.B. (July 27, 2020, S254938) ___Cal.5th___ .) As recognized in In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.), "[i]nteraction between [a] natural parent and child will always confer some incidental benefit to the child. . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Id. at p. 575.)
In In re G.B. (2014) 227 Cal.App.4th 1147, we reviewed the juvenile court's order on the beneficial relationship exception for substantial evidence, while noting that some courts have applied different standards of review. (Id. at p. 1166 & fn. 7; see Autumn H., supra, 27 Cal.App.4th at pp. 575-577 [applying substantial evidence standard]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.) [applying abuse of discretion standard but recognizing difference in standards not significant]; In re E.T. (2018) 31 Cal.App.5th 68, 78 [applying combination of both standards].)
The Supreme Court has granted review to determine the appropriate standard of review in this context. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.)
We agree with Jasmine D. that the practical differences between the two standards in evaluating the beneficial relationship exception are not significant. (Jasmine D., supra, 78 Cal.App.4th at p. 1351 [" '[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only " 'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order.' " ' "].) On this record, we would affirm under either standard.
The juvenile court found Jordan adoptable at the conclusion of the permanency planning hearing, and Mother does not challenge this finding on appeal. The court therefore was required to terminate parental rights and select adoption as Jordan's permanent plan, unless Mother proved a "compelling reason for determining that termination would be detrimental to the child" under one of the statutory exceptions such as the beneficial relationship exception. (§ 366.26, subd. (c)(1)(B); see In re Celine R., supra, 31 Cal.4th at p. 53.)
The parties and the juvenile court agreed, as do we, that Mother maintained consistent visitation with Jordan to establish the first prong of the analysis.
With respect to the second prong, however, Mother has failed to show she maintained a parental role, or that her beneficial relationship with Jordan outweighed the benefit of permanency with his prospective adoptive parent. Mother made minimal efforts to understand and address Jordan's unique educational, mental, and developmental needs. For example, although Mother read books with Jordan during their visits, Mother did not reach out to Jordan's school to follow up on Jordan's educational needs and progress. Also, after learning from a social worker that Jordan had begun to hear voices in his head, Mother took no steps to inquire about this development. As the social worker observed, while Mother and Jordan "enjoy[ed] each other in the moment," Mother had failed to "show some parenting."
The juvenile court also reasonably concluded that Jordan and Mother displayed loving contact on the level of a friendly visitor relationship, but not necessarily a substantial positive attachment. The court explained that Mother's and Jordan's supervised interactions were "cursory" or "cordial" and akin to a "play date with a loving adult." The court added, "[t]hey do the same thing that if I sat down with Jordan and met him here in court. . . . I doubt that he would cry when he left. I doubt that he would have any concerns with it after he left." Indeed, the record showed Jordan easily separated from Mother at the conclusion of visits and readily returned to his foster father's home. The visitation monitor who supervised their visits also testified that Mother and Jordan did not "really talk about anything." Similarly, the social worker testified that the visits were "like two peers playing."
We conclude the evidence did not establish that Mother had a beneficial parental relationship with Jordan. (See In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108 ["[T]he parents must do more than demonstrate 'frequent and loving contact' [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]"]; see also In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316 [beneficial relationship exception did not apply where mother's supervised interactions "amounted to little more than play dates for him with a loving adult"]; In re Sylvia R. (1997) 55 Cal.App.4th 559, 563 [beneficial relationship did not apply where mother's "relationship with the children was more of a peer than a parent"].)
Even assuming that Mother demonstrated a beneficial parental relationship, the evidence does not establish that such a relationship "outweigh[ed] the well-being [Jordan] would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother's visits with Jordan were always supervised; she had not requested, and the Agency did not recommend, unsupervised visits. Although Mother had made great strides in achieving eight months of sobriety, she was only at the beginning stages of working on the effects of substance abuse in her life. Mother had not demonstrated she had the ability to maintain a stable residence and sobriety if she is out in the general community. In addition, Mother minimized the extent of her drug use on her parenting. The court properly determined that Mother's lack of insight into the very issue that led to Jordan's detention was another factor that weighed against applying the exception.
By contrast, the foster father was committed to adopting Jordan and giving him a permanent home. The two have bonded, and the foster father was actively involved in helping Jordan with his special needs. Given all of these circumstances, the record supports the juvenile court's conclusion that the relationship between Mother and Jordan did not constitute a compelling reason to determine that termination of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i).)
III. DISPOSITION
The juvenile court's orders denying Mother's section 388 petition and terminating parental rights are affirmed.
STREETER, Acting P. J. WE CONCUR: TUCHER, J.
BROWN, J.