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Fresno Cnty. Dep't of Soc. Servs. v. Jennifer B. (In re S.P.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 16, 2020
F079379 (Cal. Ct. App. Jan. 16, 2020)

Opinion

F079379

01-16-2020

In re S.P. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JENNIFER B., Defendant and Appellant.

Mara L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Fresno, California, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16CEJ300360-1, 16CEJ300360-2)

OPINION

THE COURT APPEAL from an order of the Superior Court of Fresno County. William Terrence, Judge. Mara L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Fresno, California, for Plaintiff and Respondent.

Before Levy, Acting P.J., Poochigian, J. and Meehan, J.

-ooOoo-

Appellant Jennifer B. (mother) appeals from the juvenile court's order terminating her parental rights to her now five-year-old daughter, S.P., and three-year-old daughter, Z.P. (Welf. & Inst. Code, § 366.26.) After reviewing the juvenile court record, mother's court-appointed attorney informed this court she could find no arguable issues to raise on mother's behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844.) Mother filed a letter but failed to make the requisite showing. Consequently, we dismiss the appeal.

Statutory references are to the Welfare and Institutions Code.

PROCEDURAL AND FACTUAL SUMMARY

In December 2016, the Fresno County Department of Social Services (department) took then two-month old Z.P. into protective custody after her fourth admission to the hospital since birth for "failure to thrive" because of inadequate caloric intake. She gained weight during each hospitalization only to lose weight after returning to her parents' care. Her pediatrician attributed her failure to gain weight to parental neglect. The department also took Z.P.'s then two-year-old sister, S.P., into protective custody and placed the children in foster care.

The department filed a dependency petition, alleging mother and Shane P., the children's father, abused illicit drugs (methamphetamine) and had no reasonable explanation for Z.P.'s unexplained weight loss. (§ 300, subd. (b).) After the parents submitted to the juvenile court's jurisdiction, the court sustained the allegations, ordered the children removed from parental custody and ordered the parents to complete parenting classes, substance abuse and mental health evaluations and recommended treatment, and submit to random drug testing.

The juvenile court provided the parents reunification services until the 18-month review hearing in November 2018. In December 2017, the court added domestic violence counseling to their case plan requirements after mother reported Shane hit her in the face, leaving a bruise. Shane denied striking her. By March 2018, however, they made sufficient progress in their substance abuse treatment that the court eliminated the requirement that they drug test and granted the department discretion to advance them to liberal visitation.

Concerns the parents were neglecting the children continued, however, and in June 2018, the department filed a modification petition under section 388 (section 388 petition), asking the court to reinstate unsupervised visits. The department alleged the parents returned the children to their foster home hungry and dirty following overnight visitation and that Z.P. was losing weight and stuck her fingers in a fan, causing injury, while in her parents' care. The court granted the department's request on a temporary basis at a hearing in late June but reinstated liberal visitation a month later.

The department recommended the juvenile court terminate reunification services at the 18-month review hearing. The parents had relapsed and tested positive for methamphetamine; Shane in August and mother in November 2018. In addition, the social worker found mother's home was unsanitary during two unannounced visits in October 2018.

On November 21, 2018, following a contested 18-month review hearing, the juvenile court terminated reunification services and set a section 366.26 hearing for March 2019. Mother filed a notice of intent to file a writ petition, which was untimely. Writ proceedings were dismissed in this court after mother was unable to show good cause for the late filing. (Case No. F078483.)

Meanwhile, the department filed a section 388 petition, asking the juvenile court to reduce the parents' visitation to once a month under supervision. The court granted the petition, ordering once a week visitation, and adding that the department had discretion to spot test the parents and terminate visitation if the results were positive.

The paternal grandparents also filed a section 388 petition requesting legal guardianship of the children, which the department opposed. The department was unable to move forward on their request for placement because they allowed the parents to reside in their home. The grandparents understood this but were unwilling to remove the parents unless they were guaranteed placement. The grandfather also suspected the parents were using drugs, which raised concerns about his ability to protect the children even if the parents were not residing there.

The department recommended the juvenile court terminate parental rights and free the children for adoption. The department considered the children adoptable and opined it was in their best interest to be adopted. Although the parents consistently visited the children, the parents' ongoing substance abuse, unsafe living conditions and domestic violence made it unsafe to return the children to their custody. In addition, the children did not have a beneficial relationship with the parents such that terminating parental rights would be detrimental to them.

Mother's attorney filed an issue statement, arguing for legal guardianship or long-term foster care instead of terminating her parental rights. He argued mother and the children were bonded and the beneficial parent-child relationship and sibling relationship exceptions to adoption applied. Shane's attorney also filed an issue statement, raising similar issues.

On May 1, 2019, the juvenile court conducted a contested hearing on the paternal grandparents' section 388 petition and the department's recommendation to terminate parental rights under section 366.26. After the paternal grandfather testified, the court denied his section 388 petition. During the section 366.26 phase of the hearing, the parties presented their positions by argument only. Mother's attorney opposed the recommendation to terminate parental rights and place the children for adoption. He argued mother completed parenting classes and a substance abuse treatment program. She progressed to liberal visitation during which she was nurturing and engaging with the children. Her attorney argued she was bonded to the children and the bond outweighed the benefit they would achieve through adoption. He also pointed out that the children had been in their current placement since March 2019 and it was in their best interest to be placed with relatives to maintain family ties.

The paternal grandfather did not appeal the juvenile court's decision.

The juvenile court found the children were likely to be adopted and the beneficial parent-child relationship to adoption did not apply and terminated parental rights.

Shane appealed from the juvenile court's orders denying the paternal grandparents' section 388 petition and terminating his parental rights in our case No. F079224, which was dismissed after Shane failed to show good cause that an arguable issue of reversible error existed. (In re Phoenix H. (2009) 47 Cal.4th 835.)

DISCUSSION

At a termination hearing, the juvenile court's focus is on whether it is likely the child will be adopted and if so, the court orders termination of parental rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, the juvenile court must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the child under any of the exceptions to adoption listed in section 366.26, subdivision (c)(1)(B).

Mother's trial counsel argued unsuccessfully the juvenile court should apply the beneficial parent-child and sibling relationship exceptions to adoption. The beneficial parent-child relationship exception applies if termination of parental rights would be detrimental to the child because the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) A parent asserting this exception must show he or she "occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent." (In re C.F. (2011) 193 Cal.App.4th 549, 555.) The sibling relationship exception applies when "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)

Mother does not argue the juvenile court erred in finding the children were likely to be adopted or in finding the beneficial parent-child relationship exception or sibling relationship exception did not apply. Rather, she contends the department misled her into believing the children would be returned to her custody, the nurse lied about instructing her how to administer Z.P.'s formula, the department lied to the court and the court failed to review the evidence. In sum, she claims, she was "screwed from the get go."

The juvenile court did not expressly find the sibling relationship exception to adoption did not apply. However, mother does not argue the court's failure to make an express finding was error. --------

An appealed from judgment or order is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is appellant's burden to raise claims of reversible error or other defect. If appellant fails to do so, the appeal may be dismissed. (In re Sade C. (1996) 13 Cal.4th 952, 994.) We conclude mother failed to make a good cause showing that an arguable issue of reversible error exists and dismiss the appeal.

DISPOSITION

This appeal is dismissed.


Summaries of

Fresno Cnty. Dep't of Soc. Servs. v. Jennifer B. (In re S.P.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 16, 2020
F079379 (Cal. Ct. App. Jan. 16, 2020)
Case details for

Fresno Cnty. Dep't of Soc. Servs. v. Jennifer B. (In re S.P.)

Case Details

Full title:In re S.P. et al., Persons Coming Under the Juvenile Court Law. FRESNO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 16, 2020

Citations

F079379 (Cal. Ct. App. Jan. 16, 2020)