Opinion
C088783
09-26-2019
In re J.B. et al., Persons Coming Under the Juvenile Court Law. CALAVERAS COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.B., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16JD5902, 16JD5903)
R.B., mother of the minors, Ja.B. and Je.B. (minors), appeals the juvenile court's orders denying her petition to change the court's order terminating her reunification services and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.) We affirm the juvenile court's orders.
Unspecified statutory references are to the Welfare and Institutions Code. --------
I. BACKGROUND
On November 4, 2016, a social worker entered mother's home and found dog feces in the rooms and hallways and an overwhelming stench of urine and feces that made it difficult for the social worker to breathe. There were approximately 13 dogs (several of whom were covered in feces), two horses (one of whom appeared to have been severely neglected), chickens, snakes, and rats in and around the home, most of which were removed by Animal Control officers. The home had knives throughout the residence, all within reach of the minors. There was broken glass in the minors' room, mother's room, the kitchen, and the living room, along with lighters and mini-torches, also accessible to the minors. The bathroom was full of clothes and a cot with feces smeared into it. The minors reportedly showed up to school wearing the same clothes for several days and emanating a foul odor. The responding deputy reported minimal food in the cupboards and what little food was in the refrigerator was mostly rotten.
The social worker was informed that mother was suffering from mental health issues and hallucinations. The whereabouts of the father, J.A., were unknown. Mother stated father had court-ordered visitation but had not seen the minors in over two years. The minors were removed from the home and subsequently ordered detained.
On November 8, 2016, the Calaveras County Health and Human Services Agency (Agency) filed a juvenile dependency petition pursuant to section 300, subdivision (b) alleging the six- and eight-year old minors suffered, or were at substantial risk of suffering, serious physical harm due to the unsafe and unsanitary conditions in the home and mother's mental health issues.
On November 22, 2016, mother signed a waiver of rights and submitted on the dependency petition. The juvenile court found true the allegations in the petition.
Mother signed a case plan and started reunification services on December 20, 2016. The case plan required mother to complete substance abuse treatment, participate in counseling, attend a 12-step program, and submit to random substance abuse testing. The case plan objectives included obtaining a safe and stable residence, protecting the minors from emotional harm by remaining clean and sober, and developing a support system including an Alcoholics Anonymous (AA) sponsor.
At the disposition hearing on January 17, 2017, the court declared the minors dependents of the juvenile court, and ordered the minors be placed in foster care and mother complete her case plan.
By the time of the six-month review hearing on July 11, 2017, mother was still struggling with her sobriety. She had attended only a few substance abuse treatment groups, had no proof of attendance at AA meetings, and tested positive for alcohol almost every month. She was reportedly in violation of the terms and conditions of her probation due namely to the fact that she failed to attend child endangerment classes and the parenting program and failed to complete a mental health intake assessment. Additionally, she was arrested in February for obstructing or resisting a peace officer. Mother's home still smelled strongly of dog urine and there were urine stains on the carpet and dog feces on the electrical outlet in the living room. Visitation with the minors was initially scheduled for two times per week, however mother was inconsistent in attending the scheduled visits, causing the minors to become upset. Mother had recently been consistent in her once weekly visitation. The court continued the minors as dependents in out-of-home placement, extended mother's services for an additional six months, and set the matter for a review hearing.
In November 2017, after locating the father, the Agency filed a subsequent petition pursuant to section 342 alleging father left the minors in mother's care and failed to protect them.
The status review report filed December 8, 2017, recommended the court terminate mother's reunification services and set the matter for a section 366.26 hearing due to mother's failure to protect the minors from emotional harm by failing to follow through with agreed-upon portions of her case plan, consistently attend visits with the minors, develop positive support systems with family and friends, or obtain and maintain a stable and suitable residence for herself and the minors. Mother continued to ignore the health and safety concerns in her home. She also continued to abuse alcohol, tested positive for alcohol and opiates numerous times, was terminated from the substance abuse program for failure to attend and participate, and failed to provide documentation confirming her participation in AA.
The court set the matter for a contested hearing on January 16, 2018. However, by the time of the hearing, the Agency revised its recommendation to offer mother six additional months of reunification services because mother was no longer testing positive for alcohol, showed a " 'renewed willingness' " to complete a substance abuse treatment program, had an AA sponsor, and was looking for suitable housing. In particular, mother reportedly reengaged in services, complied with random drug testing (with negative results for alcohol and other substances), and communicated with the Agency. She registered her car, had consistent visits with the minors, utilized her support network, applied some of the skills she learned in her group sessions, began an intensive outpatient drug treatment program, and attended AA meetings. The court continued mother's services until the 18-month review hearing.
The May 2018 status review report stated mother had been incarcerated since April 10, 2018, due to a violation of probation for failure to complete substance abuse, mental health, and child abuse programs. Mother also admitted she was struggling with alcohol addiction again. As a result, mother had missed two of her scheduled weekly visits with the minors. She attended substance abuse services and attended AA meetings, but twice tested positive for alcohol in February and March 2018 and tested positive for opiates on March 26, 2018 (for which she had a prescription for back pain). Visitation was suspended on March 9, 2018, due to mother's positive test for alcohol. The Agency assessed the risk of returning the minors to mother as high due to mother's inability to maintain sobriety, her failure to complete her court-ordered case plan services, and her failure to demonstrate a change in behavior that would ensure the health and safety of the minors.
A contested 18-month review hearing was set for May 30, 2018, but mother waived her right to offer evidence. The court terminated mother's services and set the matter for a section 366.26 hearing.
Section 388 Petition
On August 31, 2018, mother filed a section 388 petition seeking to modify the court's order terminating her reunification services by returning the minors to her care. The petition alleged that, since her services were terminated, mother had successfully completed a substance abuse program and secured housing. The petition further alleged the requested change would be in the minors' best interest because "[c]hildren . . . do better with their parents than in foster care, and with the requirements met, mother can provide a safe home for the children, free of the previous issues." Combined Contested Section 366 .26 and Section 388 Hearing
At the combined section 388 and section 366.26 hearing on November 28, 2018, mother testified she completed her substance abuse program and, in July 2018, found safe and appropriate housing. She further testified she was taking a class on child endangerment. She stated she drug tested through probation in September 2018 but did not test thereafter because "she didn't ask me to." Mother acknowledged she learned that probation did not test for alcohol when she went in September and asked to be tested. She made no attempt thereafter to get tested for alcohol. She stated she was attending AA, but did not have any confirming documentation.
Mother testified she worked at a ranch on Mondays from 7:00 a.m. to 3:00 p.m. and on Fridays from 4:00 p.m. to 6:00 p.m. When the social worker made an unannounced visit on a Monday, she was unable to accommodate him because she was on her way out to work. She testified the social worker made two more unannounced visits on Mondays when she was working. On September 24, 2018, the social worker left a card on her door asking her to call him. She claimed that when she called the social worker at 4:52 p.m., he told her she needed to "come over immediately." However, she did not go to the Agency's office because she was "getting ready to jump into the shower" and she had a bible study group on its way.
Mother also testified she had some unsupervised visits with the minors but was incarcerated for a probation violation in April 2018 for not completing the substance abuse program on time. She stated that returning the minors to her would be beneficial because the minors "need to be with their mother" and wanted to be home and for "things to be back to normal."
Social worker Justin Simko testified he attempted approximately five unannounced visits to mother's home, three on a Monday and a "couple" on another day. He confirmed the first unannounced visit was conducted on Wednesday, September 12, 2018. Mother requested that he schedule an appointment with her the next day or at some other time. On Monday, September 17, 2018, Simko made another unannounced visit. Mother was not home. He left a card to let mother know he had been there but did not hear back from her that day. Simko made an unannounced visit on Monday, September 24, 2018. Contrary to mother's testimony, Simko testified he initiated the call to mother at 4:50 p.m. and requested that she come into the office and test, but she did not show up. He noted that mother lived "within two minutes of" the Agency's office and could have walked right over and tested. He testified his normal practice was to obtain information about a client's work schedule and attempt to conduct an unannounced visit on a day when the client is not working.
Simko testified that one of the problems leading to removal of the minors was the filthy conditions in mother's house caused by animal waste. One reason for the unannounced visits to mother's house was the fact that Simko heard dogs barking from inside the home. He stated that, while mother was generally cooperative, he was never able to get an unannounced home inspection or alcohol test despite that he twice tried to do so on days mother did not work.
The court denied mother's section 388 petition, finding mother had not met her burden to demonstrate either changed circumstances or best interests of the minors under section 388. After the parties submitted on their briefs, the court concluded adoption was the appropriate permanent plan and, finding no exception applied, terminated parental rights.
Mother filed a timely notice of appeal.
II. DISCUSSION
A. Denial of Section 388 Petition
Mother contends the juvenile court erred in denying her section 388 petition to modify the order terminating her reunification services because, once the Agency conceded that her mental health issues were no longer present, the only remaining issues were her alcohol abuse and finding appropriate housing; and she presented evidence demonstrating she provided a certificate of completion of her substance abuse program and obtained appropriate housing. She further claims it was in the minors' best interest to return to her custody because she and the minors have a "longstanding and close relationship" and share strong bonds.
The Agency argues mother demonstrated changing circumstances at best, as she failed to allow the Agency to confirm whether she was maintaining a sanitary and safe home or to verify her sobriety by random drug tests, and failed to cooperate with the Agency during the period of reunification services and after services were terminated. The Agency further argues mother failed to demonstrate the minors' best interests would be served by returning them to her care and custody.
"To prevail on a section 388 petition, the moving party must establish that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. [Citation.]" (In re J.T. (2014) 228 Cal.App.4th 953, 965.) The change of circumstances or new evidence "must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; see also In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)
"A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The petitioner bringing a section 388 petition has the burden of proof on both points by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) We review for abuse of discretion a juvenile court's denial of a section 388 petition (In re J.T., supra, 228 Cal.App.4th at p. 965), reversing only if under all the evidence, including reasonable inferences from the evidence and viewed most favorably to the ruling, no reasonable judge could have made that ruling. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) If there is a conflict in the evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
Here, the juvenile court did not abuse its discretion in denying mother's section 388 petition. As of May 2018, mother admitted she was still struggling with her alcohol addiction. She had twice tested positive for alcohol in February and March 2018, resulting in suspension of her visitation with the minors. While mother testified she eventually completed her substance abuse program and provided the court with a certificate of completion, she admitted she did not drug test after September 2018 and that the testing she was doing did not include a test for alcohol, the substance which played a significant part in removal of the minors. More importantly, she either did not allow or was simply uncooperative in allowing the Agency to conduct random drug and alcohol tests to confirm her sobriety, despite two attempts by the social worker to visit on a day when mother stated she was not working. During another visit on September 24, 2018, the social worker spoke with mother after mother returned from work and asked her to come to the office and test. Mother did not show up at the office or test despite that she lived "[r]ight next door within two minutes of walking" from the office. Mother failed to demonstrate the circumstances of her sobriety were sufficiently changed, as opposed to changing, such that return of the minors to her care does not promote the minors' stability or best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
Similarly, mother failed to demonstrate she had obtained safe and sanitary housing. Mother testified she found safe and appropriate housing as of July 2018. She provided pictures of her new home to the court. However, as previously discussed, she failed to cooperate with or allow the Agency to conduct unannounced visits to her new home to confirm that it was in fact safe and sanitary. As social worker Simko testified, one of the problems leading to removal of the minors was the filthy conditions in mother's house caused by animal waste. As such, it was important to see inside mother's home to ensure the problem was corrected. The need for a visual inspection was particularly important given the fact, during one unsuccessful attempt at an unannounced visit, Simko heard dogs barking from inside the home, and mother later confirmed she left her two dogs in the home while she worked so people would think she was home. Simko was never able to complete an unannounced home inspection despite his efforts to do so when mother was not working. While mother provided photocopies of pictures of her apartment at the contested hearing, as the court noted, there was no evidence offered regarding the date the pictures were taken or whether the photographs reflected the current condition of the home. Again, mother demonstrated her circumstances were changing but did not demonstrate the circumstances had changed such that return of the minors was warranted.
Even assuming mother had shown changed circumstances, she did not show it would be in the minors' best interests to return the minors to her care and custody.
Mother's section 388 petition alleged the requested change would be in the minors' best interest because "[c]hildren . . . do better with their parents than in foster care, and with the requirements met, mother can provide a safe home for the children, free of the previous issues." She testified that returning the minors to her would be beneficial because the minors "need to be with their mother" and wanted to be home and for "things to be back to normal." Once reunification services have been terminated and a section 366.26 hearing has been set, the focus shifts from the parents' interest in the care, custody, and companionship of the minor to the needs of the minor for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The child's best interests "are not to further delay permanency and stability in favor of rewarding" the parent for his or her "hard work and efforts to reunify." (In re J.C. (2014) 226 Cal.App.4th 503, 527.)
Mother received 18 months of reunification services. In that time, she eventually participated in services and, at times, tested clean. In January 2018, mother was clean, reengaged in services, and looking for suitable housing. By May 2018, she was struggling with her alcohol addiction and tested positive for alcohol on at least two occasions. In August 2018, she filed a certificate of completion of a substance abuse program and stated she had secured appropriate housing. However, in September 2018, she failed to randomly test after an unsuccessful home visit by the social worker despite that she lived two minutes from the Agency's office. Further, she failed to cooperate with the Agency by allowing it to verify her claims of sobriety and safe and sanitary housing. She had not tested at all the two months prior to the hearing, and had not tested for alcohol—one of two main causes for the minors' removal—or been present for an unannounced visit and test. She claimed she was attending AA but did not produce any confirming documentation. While mother was making laudable changes, there was work yet to be done to demonstrate changed circumstances such that actual or potential harm to the minors was eliminated. On the other hand, the minors had been placed together with their paternal great-aunt, a prospective adoptive parent, since April 2018 and were reportedly bonded to one another and doing well. The paternal great-aunt requested a permanent plan of adoption and agreed to meet the minors' needs and participate in family counseling services to help the minors adjust. Removing the minors from their current placement and returning them to mother at this stage in the proceedings would delay permanence and stability for the minors and potentially cause them emotional harm.
The juvenile court did not abuse its discretion in denying mother's section 388 petition. B. Beneficial Parental Relationship Exception
Mother contends the juvenile court erred in failing to apply the beneficial parental relationship exception to adoption. She contends the evidence demonstrated she had regular and consistent visitation with the minors and the minors wanted to be with her. The claim lacks merit.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several " 'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are only limited circumstances that permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . ." (§ 366.26, subd. (c)(1)(B).) One such circumstance is when "[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 factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th 614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
Substantial evidence supports the juvenile court's determination that the beneficial parental relationship exception did not apply.
It is undisputed that, other than the suspension of visitation in March 2018 due to mother's positive test for alcohol and her subsequent incarceration in April 2018 for violating the terms of her probation, mother otherwise maintained regular once a week supervised visitation with the minors.
Mother argues that, in addition to the fact that the minors enjoyed regular visits with her, the minors benefited from their relationship with her because they spent the first three-quarters of their lives with her, were bonded to her, and wanted to return to her care.
However, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) To prove that the beneficial parental relationship exception applies, the parent must show there is a significant, positive, emotional attachment between the parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And, even if there is such a bond, the parent must prove that the parental 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 S.B. (2008) 164 Cal.App.4th 289, 297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575; accord, In re Jasmine D., supra, at p. 1345.) " 'In other words, the 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.' " (In re Zachary G. (1999) 77 Cal.App.4th 799, 811, quoting In re Autumn H., supra, at p. 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.) 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." (In re Jasmine D., supra, at p. 1350.)
It is true that the minors, at different points along the way, expressed their love for mother and their desire to return to her care. However, the record reflects that the minors had been in out-of-home placement for two years. They were happy and well-adjusted in their placement with the paternal great-aunt, with whom they had been living since April 2018. Further, they agreed with the plan for the paternal great-aunt to adopt them if they could not be returned to mother's care. While mother argues she was able to make dinner for the minors at her home in October 2018, she identified no evidence in the record demonstrating she occupied a parental role in the minors' lives after removal from her care, or that her relationship with the minors promoted the minors' well-being to such a degree as to outweigh the well-being the minors would gain in a permanent home with their new, adoptive parent. (In re S.B., supra, 164 Cal.App.4th at p. 297.)
On the other hand, the minors were flourishing with the paternal great-aunt, who was prepared to provide permanency for the minors through adoption and to meet the minors' emotional and physical needs. She also participated in family counseling services and expressed a strong commitment to support an ongoing relationship between the minors and their mother. The minors' paternal grandmother also lived in the home and was available to care for the minors when the paternal great-aunt worked.
Mother relies primarily on In re E.T. (2018) 31 Cal.App.5th 68 (E.T.), which held the juvenile court erred in not applying the beneficial parental relationship exception. (Id. at p. 70.) There, the twin minors were removed from the mother due to the mother's history of mental health issues and drug addiction, returned after a year of reunification services and, after the mother self-reported having relapsed into drug use, voluntarily placed the minors with the godparents who had earlier served as foster parents. (Id. at p. 71.) The juvenile court bypassed reunification services to mother because she was previously provided services and was unsuccessful with reunification. (Ibid.) At the section 366.26 hearing, the juvenile court concluded the beneficial parental relationship exception did not apply and terminated the mother's parental rights, finding the minors had been living with their godparents for 24 months of their lives and only 22 months with the mother, some visits between the mother and the minors had been "difficult," and the minors' bond with mother was not so strong that they could not be happy with their godparents. (E.T., supra, at p. 75.)
The appellate court reversed, concluding the mother's regular contact and visits with the minors, "coupled with [her] efforts during the dependency," demonstrated that the minors would benefit from continuing their relationship with the mother. (E.T., supra, 31 Cal.App.5th at p. 76.) The court noted that, "despite denial of services, [the mother] continued to participate in programs designed to maintain her sobriety and make her a better parent. She has consistently tested negative for drugs, and during the dependency remained in drug treatment, took classes in life skills, parenting, cognitive behavior, criminal thinking, anger management and children of alcoholics and addicts." (Id. at p. 77.) The court further noted the minors would sometimes act out following visits but the mother provided them with comfort and affection and was able to ease their fear and anxiety, concluding the minors were " 'very tied to their mother' " and "terminating their familial relationship would cause them great harm." (Ibid.)
E.T. is distinguishable. While the mother in E.T. self-reported to her social worker that she was again using drugs and the minors were voluntarily placed with their godparents (E.T., supra, 31 Cal.App.5th at p. 71), here the minors were involuntarily removed due to mother's mental health and substance abuse issues and her failure to maintain a safe, sanitary home for the minors. Mother was provided with 18 months of reunification services but did not significantly participate until late into the proceedings, she tested positive for alcohol as recently as February and March 2018, resulting in suspension of her visitation, and she had not yet obtained safe and sanitary housing or completed a substance abuse treatment program when her services were terminated. While the mother in E.T. communicated with her social worker about her relapse into drug abuse and developed a relapse prevention plan and a safety plan for the minors (id. at pp. 71, 74), here, mother did the opposite, failing or refusing to cooperate with the Agency to allow unannounced visits and testing. The mother in E.T. regularly participated in AA, Narcotics Anonymous, and other classes to better herself (id. at p. 74); here, mother claimed she attended AA meetings but made no attempt to provide confirming documentation. The minors in E.T. exhibited anxiety, uncertainty, and fear and sometimes acted out when separated from the mother. (Id. at pp. 72-73.) Here, the minors did not.
The juvenile court did not err in finding the beneficial parental relationship exception did not apply.
III. DISPOSITION
The juvenile court's orders are affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
DUARTE, J.