Opinion
B317416 B324480
07-06-2023
In re W.C., a Person Coming Under the Juvenile Court Law. v. ANGELA V., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R, Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County, No. 18LJJP00746 Michael C. Kelley and Donald A. Buddle, Jr., Judges. Affirmed.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R, Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
CHANEY, J.
In this consolidated dependency matter (Welf. & Inst. Code, § 300 et seq.), Angela V. (Mother) appeals from an order denying a section 388 petition in which she sought return of her then-11-year-old daughter W.C. to her care, or reinstatement of reunification services and/or liberalized visitation. Mother contends the juvenile court erred in denying the section 388 petition without holding an evidentiary hearing. Mother also appeals from an order terminating her parental rights to W.C., contending the court erred in finding the parental-benefit exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not apply to her relationship with then-12-year-old W.C. For the reasons set forth below, we affirm the orders.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
I. Prior Child Welfare History
Mother's history with the juvenile dependency system dates back more than 20 years. In 2002, the Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition involving four of Mother's children (W.C., the subject of the current dependency proceedings, was not yet born). The juvenile court sustained allegations in the petition under section 300, subdivision (b) regarding Mother's history of domestic violence with the father of one of her children. Upon termination of the dependency proceedings, the juvenile court issued an order placing three of the children in the physical custody of their fathers and awarding joint legal custody. The court granted Mother unmonitored day visits with two of the children (who lived together with their father) and monitored visits with the third (who lived separately with her father). As to the fourth child, the court granted legal guardianship to the child's maternal grandmother. The record before us includes no further detail about these proceedings or an explanation as to why Mother lost custody of her four children.
In 2012, DCFS filed a section 300 dependency petition involving then-two-year-old W.C. (the child who is the subject of the current dependency proceedings). In June 2014, the juvenile court sustained the following allegations against Mother and W.C.'s father, Larry C. (Father): (1) that Father held a gun to W.C.'s paternal uncle's head during a violent altercation (count a-1); (2) that Mother and Father endangered W.C. by residing with the paternal uncle, whom Mother knew was a registered sex offender (count b-1); (3) that Mother and Father placed W.C. at risk in that there was a gun in the home within access of W.C. and there were multiple bullet holes in Father's bedroom (count b-2); and (4) that Father abused methamphetamine, Mother was aware of it, and Mother allowed Father to reside in the home and have unlimited access to W.C. (count b-3).
Father is not the biological father of any of the four children involved in the 2002 dependency proceedings described above. Because Father is not a party to this appeal, we do not provide detail in this opinion regarding his compliance with the juvenile court's orders in these dependency proceedings.
During the prior dependency proceedings involving W.C., Mother was on probation after a June 9, 2010 felony conviction for possession of a controlled substance for sale (Health &Saf. Code, § 11378), and she was required to register as a controlled substance offender (Health &Saf. Code, former § 11590). In April 2014, before the juvenile court sustained the allegations summarized above, DCFS received a referral alleging Mother was arrested for a probation violation after methamphetamine and drug paraphernalia were found in a bedroom Mother shared with W.C. According to the referral, Father was incarcerated at the time of Mother's arrest. DCFS found the allegations in the referral to be substantiated, and the dependency proceedings continued.
In May 2016, the juvenile court terminated jurisdiction in the prior dependency proceedings involving W.C. The court issued a final custody order, granting Father sole custody of W.C., with monitored visitation for Mother. The record before us does not include an explanation of why the court awarded custody to Father and not Mother.
II. Current Dependency Proceedings
A. The referral and section 300 petition
In August 2018, DCFS received a referral alleging then-eight-year-old W.C. came to school with a black eye and would not disclose how the injury occurred. After investigating the referral, DCFS found allegations of general neglect to be substantiated on grounds unrelated to the alleged injury. DCFS learned Father was not abiding by the final custody order in that he was allowing Mother to have unmonitored contact with W.C. In substantiating the referral, DCFS also cited Mother's "unresolved drug history," her failure to drug test during investigation of this referral, and the conflicting information it received regarding where Mother and W.C. lived. On November 1, 2018, DCFS detained W.C. from Mother, pursuant to a removal order, and placed W.C. in a foster home (not the home of the current caregiver/prospective adoptive parent).
On November 5, 2018, DCFS filed a section 300 petition in the current dependency proceedings, alleging Mother (count b-1) and Father (count b-2) were registered controlled substance offenders; Mother had a conviction for possession of a controlled substance for sale; and Father had convictions for use and possession of controlled substances, and for possession of a controlled substance for sale and possession of marijuana for sale. DCFS alleged this conduct by Mother and Father endangered W.C. and placed her at risk of harm.
Mother and Father appeared at the detention hearing on November 6, 2018. The juvenile court found DCFS made a prima facie showing that W.C. was a person described by section 300, and the court detained W.C. from Mother and Father. The court ordered that Mother be referred to a parenting class, and granted her unmonitored visitation on the condition she submit to random drug tests with negative results. The court admonished Mother that a missed test or "a diluted test" constitutes "a dirty test." Mother stated that she understood, and she did not object to the drug testing requirement. The court granted Father monitored visitation.
B. Adjudication/disposition of section 300 petition
1. DCFS's reports
As set forth in DCFS's Jurisdiction/Disposition report, dated January 1, 2019, W.C. told a dependency investigator that she wanted to live with Mother, but not Father. W.C. explained that she feared Father, and stated he"' would always use the shots on his arms,'" indicating a syringe to the arm.
According to the report, Mother and W.C. were having regular contact by telephone, and they had had two visits inperson, one monitored by DCFS staff and one unmonitored. W.C. enjoyed the calls and visits with Mother. W.C.'s caregiver informed DCFS that she had reminded Mother that no other adult could be present at Mother's visits with W.C. and that Mother could not drive W.C. because Mother did not have a valid driver's license or car insurance.
In a Last Minute Information for the Court, dated February 19, 2019, DCFS reported that Mother's boyfriend, Alan G., had been attending Mother's visits with W.C., according to the caregiver. A social worker informed Mother that Alan could not attend because DCFS had not approved his presence at visits. In the same report, DCFS stated since the November 6, 2018 detention hearing, Mother tested negative on an on-demand drug and alcohol test on December 7, 2018 and failed to show for a random test on February 4, 2019 (the same day DCFS made the referral for random testing).
As set forth in a Last Information for the Court, dated March 1, 2019, the dependency investigator interviewed Mother on February 28, 2019. Mother acknowledged she had a 2010 conviction for possession of a controlled substance for sale. She claimed she was" 'guilty by association.'" She stated:" '[Father] had the drugs in our room and we both got busted. I didn't place W.[C.] in danger because this happened when I was pregnant with her and I was not using drugs or alcohol. I have been sober all my life and I do not use any substances or alcohol. I also ended the relationship with [Father] and moved out of the home.' "
Mother also told the investigator she had been caring for W.C. for the past two years, despite the court order granting Father sole custody and her only monitored visitation. Mother stated Father was unable to care for W.C., and he asked Mother to help him, which caused Mother to believe he was using drugs. According to Mother, Father initially visited W.C. when she was in Mother's care, but then he stopped visiting. Mother acknowledged:" 'I did hide and run for two years because I didn't want [W.C.] to be taken from me.'" Mother currently lived with W.C.'s maternal great-grandmother, and the dependency investigator noted no safety concerns when she conducted a home assessment. Mother provided a record of her enrollment in a 12-week parenting class and attendance at one session. On February 28, 2019, the same day as this interview with the investigator, Mother submitted to a random drug and alcohol test and although the result was negative, the testing site noted Mother's urine sample was diluted.
The dependency investigator also interviewed Father on February 28, 2019. Regarding a time period not specified in the report, but presumably during the time Mother was caring for W.C. prior to commencement of these dependency proceedings, Father commented:" 'I noticed that [Mother]'s behavior had changed and she was acting different and dressing different. I started catching on that [Mother] was not taking W[.C.] to school and she had other people pick up [W.C.] from school. I also found out that [Mother] was living in drug infested homes because I knew most of the people she was staying with from my past when I used drugs. I would ask W[.C.] if she felt safe living with [Mother] and she would lie to me because she was being coached by [Mother] to lie to me.' "
2. Adjudication/disposition hearing
Mother and Father were present at the March 27, 2019 adjudication/disposition hearing. The juvenile court dismissed without prejudice count b-1, alleging Mother's 2010 conviction and status as a registered controlled substance offender endangered W.C. and placed her at risk of harm. The court sustained count b-2 regarding Father's history of drug convictions and status as a registered controlled substance offender. The court also sustained amended count b-3, stating: "[Father] and [Mother] have violated court orders that granted sole custody to [F]ather in 2016 and ordered monitored visitation for [M]other. In violation of these orders, [F]ather has allowed the child to live unsupervised with [M]other beginning in the summer of 2016."
The juvenile court declared W.C. a dependent of the court, removed her from Father's custody, and ordered her released to Mother over DCFS's objection. DCFS's counsel asked the court to order Mother to complete a full drug and alcohol program with aftercare, stating that Mother was ordered to complete such a program in the prior dependency proceedings involving W.C. and she failed to do so, and noting Mother already had some missed tests and a diluted test in the current proceedings. Mother's counsel asked the court "to not order a full rehab yet," but instead require Mother to test, and only order a full program if Mother missed a test or tested positive. Counsel also stated Mother was amenable to attending a 12-step program as an "alternative to full rehab." The court ordered Mother to participate in a 12-step program with a court card and a sponsor, and submit to weekly drug and alcohol testing. The court stated: "If any tests are missed or dirty without a valid excuse, then Mother is to participate in a full drug rehab program. That is one test. One test missed or diluted." The court also ordered Mother to complete a parenting course and participate in individual counseling with a licensed therapist to address domestic violence, anger management, protective parenting, co-parenting, healthy relationships, and childhood trauma. Mother did not object to participating in such services.
C. W.C.'s removal from Mother
1. September 2019 status review
In a Status Review Report, prepared on or about September 11, 2019 (five and a half months after the adjudication/disposition hearing), DCFS reported it had linked Mother with a family preservation services provider. Beginning on June 18, 2019, Mother began attending twice weekly case meetings with the provider. During a meeting on August 22, 2019, Mother stated she had been unable to find a 12-step program despite receiving referrals from the provider and DCFS. In or around the end of August 2019, Mother began attending individual counseling, and in September 2019, the therapist informed DCFS he or she had linked Mother with a 12-step program. Mother was also enrolled in a parenting course. Between March 28 and September 5, 2019, Mother had four negative drug and alcohol tests (on April 10, 15, and 25 and May 17) and 21 missed tests.
In late August 2019, while reviewing documents from the California Law Enforcement Telecommunications System in preparation of this Status Review Report, the social worker learned that on June 6, 2019, Mother was detained for possession of a controlled substance for sale and her boyfriend Alan was arrested the same day for being under the influence of a controlled substance. Mother did not report the incident to DCFS or the family preservation services provider. The social worker requested the law enforcement incident report but had not yet received it by the time she prepared the Status Review Report.
In a Last Minute Information for the Court, dated September 27, 2019, DCFS requested the juvenile court order W.C. to be detained from Mother's custody, citing Mother's June 6, 2019 detention for possession of a controlled substance for sale, her plethora of missed drug and alcohol tests, and her boyfriend Alan's access to W.C. As set forth in this report, during a September 25, 2019 unannounced visit with W.C., the social worker interviewed the nine-year-old. W.C. stated Mother was away for a couple of days and when she returned, she told W.C. she had been in jail, but she did not explain why. W.C. said her grandmother took care of her while Mother was away. W.C. also told the social worker that Mother's boyfriend Alan would babysit her when Mother was unavailable, and she felt safe with him. When the social worker asked W.C. about drug or alcohol use by, and domestic violence between, Mother and Alan, the social worker noticed W.C. was hesitant to answer and it appeared she had been coached. She denied drug or alcohol use by Mother or Alan but stated she had "watched" Father use drugs, which "look[ed] like 'shots.'" She also denied observing fights between Mother and Alan, but she paused before answering, becoming "tense," "nervous and anxious," according to the social worker.
As set forth in the same report, on September 26, 2019, the social worker interviewed Mother by phone. Regarding the June 6, 2019 incident, Mother stated she was detained during a law enforcement raid on an arcade, and she was released three days later on June 9, 2019. She said she did not know why she was detained and denied she was arrested for possession of a controlled substance with intent to sell. She claimed she had written documentation that the district attorney had rejected her case, and she would provide it to the juvenile court. She stated she did not inform DCFS about the incident because she did not know she had to disclose it. She denied using or abusing any illicit substance. She acknowledged her boyfriend Alan was arrested during the incident.
The district attorney did in fact pursue the case and it resulted in Mother being placed on probation, as explained below.
Regarding compliance with her case plan, Mother told the social worker she was attending a parenting program and individual therapy. She also stated she had enrolled in a 12-step program but did not have a sponsor. She "initially reported that she was compliant with substance testing and could provide written verifications." When the social worker asked for the date of her last test, Mother responded, May 2019. The social worker noted she failed to test in June, July, August, and September, and Mother denied knowing about such a drug testing requirement. The social worker explained she needed to complete a full drug program because her missed tests were considered "dirty" tests. Mother agreed to enroll in a drug program that same day, and she submitted to an on-demand drug test. DCFS later learned that this test was negative, but the lab reported that Mother's urine sample was diluted.
Mother was present at the September 27, 2019 status review hearing. The juvenile court continued the matter at DCFS's request so DCFS could investigate the circumstances of Mother's June 6, 2019 detention and her compliance with her case plan. Mother's counsel informed the court that Mother was "willing to do a full drug rehab program given that she ha[d] missed numerous tests," and she had no objection to the court so ordering. The court stated that it would hold off on making such an order, pending DCFS's investigation. In the meantime, the court admonished Mother (1) not to miss any further drug tests, (2) not to leave W.C. alone with anyone not approved by DCFS, including Alan, and (3) to reside with W.C. in the home of maternal great-grandmother and refrain from spending nights elsewhere with W.C.
2. DCFS's investigation
As set forth in a Last Minute Information for the Court, dated October 23, 2019, DCFS obtained the incident report from the sheriff's department. According to the incident report, on June 6, 2019, two deputies were driving a marked patrol vehicle through a parking lot when they observed Mother and Alan arguing angrily. Alan was seated in the driver's seat of a car and Mother was standing outside, within a foot of the driver's seat. The deputies exited the vehicle and approached Mother and Alan to conduct a domestic violence investigation. One of the deputies observed Mother "quickly throw a clear plastic bag on to the driver's floor board." The bag's contents appeared to be methamphetamine. From the floor board, the deputy recovered the plastic bag and two $20 bills "folded and crumbled up underneath the bag," which were "warm and moist," indicating to the deputy that Mother had held them in her hand with the bag. As the other deputy spoke with Mother, he noticed her attempt to adjust a pocket in the front of her pants, and he observed a clear plastic bag hanging out of the pocket containing a "black tar like substance." He removed the bag, and its contents appeared to be heroin. As further set forth in the incident report, after being advised of her Miranda rights, Mother admitted to the deputies that the bag recovered from the car contained methamphetamine and the bag removed from her pocket contained heroin. Mother said she was taking the methamphetamine to a friend. The deputies arrested Mother for possession of narcotics with intent to sell and booked her at the station. According to the incident report, the methamphetamine in the plastic bag measured three-fourths of an ounce, the equivalent of 1,000 individual doses (0.02 grams per dose); the heroin in the other plastic bag measured one-eighth of an ounce, the equivalent of 300 individual doses (0.02 grams per dose). Alan was arrested for being under the influence of a controlled substance, based on a deputy's observation of his behavior and his admission that he had smoked methamphetamine around four hours earlier.
On October 16, 2019, a "Teaching &Demonstrate worker" from the family preservation services provider visited the family home for a meeting. As the worker sat in her car before the meeting, she observed Mother drive to the home with W.C. in the car. Mother had "promised" the family preservation team that she would not drive W.C. because her driver's license was suspended. After the meeting, as the worker was getting ready to drive away, a car with two people inside drove up to Mother's family home. The passenger exited the car and appeared to the worker to be under the influence of a substance. The worker recognized the person as someone who had "driven [Mother] places before." The passenger went to the front door and met with Mother. The driver exited the car, opened the hood, and pulled out a red cellophane package about the size of a cell phone. The driver appeared to notice that the worker was watching her. She immediately entered the car and drove away. The family preservation team decided that someone from the provider would visit Mother's home daily as a safety precaution.
On October 16, 2019, Mother told the social worker she was no longer in a relationship with Alan. During a telephone call with the family preservation services provider on October 17, 2019, and a team meeting with DCFS on October 22, 2019, Mother denied the information set forth in the June 6, 2019 sheriff's department incident report. She maintained she was not arrested "for anything to do with illicit substance[s]," and said she was arrested with five other individuals.
Regarding case plan compliance, Mother reported she attended weekly Narcotics Anonymous (NA)/Alcoholics Anonymous (AA) meetings and met with her sponsor during those meetings. She was "unable" to provide DCFS with a written court card documenting her attendance. She also reported she had completed 10 out of 12 parenting sessions and continued to attend weekly individual therapy sessions. After submitting a diluted urine sample on September 26, 2019, as referenced above, Mother tested negative for drugs and alcohol on October 3, 9, and 18, 2019. Mother could not explain the diluted test result but denied using drugs or alcohol.
DCFS recommended the juvenile court remove W.C. from Mother, as set forth in the October 23, 2019 Last Minute Information for the Court.
In a Detention Report, dated October 30, 2019, DCFS summarized an October 16, 2019 interview with W.C. She told the social worker Alan no longer visited the family home or babysat her. When asked about Father, she stated:" '[H]e is a bad influence. He does drugs and drinks beer. He used to do it in front of me. My mom would never and never will do drugs.'" She stated Mother drove her to school but then stated Mother's friend drove her, with Mother in the car. According to the social worker, W.C.'s "demeanor change[d] when she realized she admitted [Mother] drives her to school, as [Mother] does not have a driver's license." DCFS further stated W.C. "reported wanting to live with [Mother] forever because [Mother] takes good care of her and makes sure she has the things she wants. [Mother] feeds her, doesn't hurt her, and makes sure she is ok. She reported being worried she would be taken away from [Mother] but is working with her therapist not to think like that."
3. Section 342 and section 387 petitions
On October 25, 2019, DCFS filed a subsequent dependency petition under section 342, alleging Mother's prior conviction for possession of a controlled substance for sale, status as a registered controlled substance offender, and June 6, 2019 arrest for possession of controlled substances for sale endangers W.C. and places her at risk of harm (count b-1), as does Mother allowing Alan to have unlimited access to W.C., given his history of drug use (count b-2). The same day, DCFS filed a supplemental petition under section 387, alleging Mother failed to comply with her court-ordered case plan, including a substance abuse rehabilitation program with aftercare.
Mother was present at the October 28, 2019 detention hearing. The juvenile court made detention findings, ordered W.C. placed in foster care, and granted Mother monitored visitation to occur four times per week, for three hours per visit. The court set the matter for adjudication. After the hearing, DCFS placed W.C. in the home of Roxana B., who is the current caregiver/prospective adoptive parent.
As stated in DCFS's December 4, 2019 Jurisdiction/Disposition Report, Mother missed her drug and alcohol tests on October 24 and 28, 2019. She had a monitored visit with W.C. on November 2, 2019. During a November 6, 2019 interview with a dependency investigator, Mother denied ever being under the influence of drugs or having drugs in her possession (notwithstanding her prior conviction for possession of a controlled substance for sale). During a November 7, 2019 interview with W.C., it appeared to the investigator that W.C. had been coached to give "very short and quick" responses to questions about Mother. W.C. informed the investigator that Mother had read the Detention Report aloud to her.
In a Last Minute Information for the Court, dated January 10, 2020, DCFS reported Mother was having monitored visits with 10-year-old W.C. every Saturday. According to W.C.'s caregiver Roxana, Mother did not initiate calls with W.C., but she would return missed calls. W.C. asked to call Mother every other day or every few days. Between November 6 and December 30, 2019, Mother failed to test on nine occasions.
Mother was present at the January 22, 2020 adjudication/disposition hearing. She submitted to the juvenile court copies of a certificate of completion of a parenting class, dated November 12, 2019, a 12-step program court card indicating attendance at nine meetings between November 22 and December 3, 2019, and a progress report, dated December 3, 2019, stating she had completed 16 weeks of addiction education and individual counseling.
After hearing argument from the parties, the juvenile court sustained count b-1 in the section 342 subsequent petition regarding Mother's prior conviction and June 6, 2019 arrest for possession of a controlled substance for sale, and dismissed count b-2 regarding Alan's access to W.C. The court also sustained the following amended count s-1 in the section 387 supplemental petition: "[Mother] failed to comply with her court ordered case plan services including a full rehab program and weekly drug and alcohol testing. Such failure to comply with Juvenile Court orders by [Mother] places the child at substantial risk of serious physical harm."
Turning to disposition, the juvenile court removed W.C. from Mother's custody, over Mother's objection. W.C. remained placed with Roxana (the current caregiver/prospective adoptive parent). Without objection from Mother, the court ordered her to complete a case plan, including a full drug and alcohol program with aftercare, weekly drug and alcohol tests, a 12-step program with a court card and a sponsor, and individual counseling with a licensed therapist to address substance abuse, domestic violence, anger management and protective parenting. The court granted Mother monitored visitation to occur a minimum of twice per week, for two hours per visit.
D. Reunification period
1. Status of Mother's criminal case
On April 10, 2020, in a Last Minute Information for the Court, DCFS informed the juvenile court that as of January 22, 2020, Mother had a warrant for her arrest on two felony counts related to the June 6, 2019 incident. At the end of February 2020, when the social worker inquired about it, Mother stated she was unaware of the warrant and would "look into taking care of it."
2. Mother's noncompliance with her case plan (January 2020-February 2021)
During the reunification period from January 22, 2020 to February 17, 2021, Mother failed to submit to drug and alcohol testing, other than one test on March 5, 2020, which was negative; and DCFS reported she did not participate in other court-ordered services. Her last contact with DCFS was on March 11, 2020. She attended a hearing on September 1, 2020 (remotely), and the juvenile court continued her reunification services (and those of Father). But she remained out of contact with DCFS. In December 2020, DCFS conducted a due diligence search for her, which was unsuccessful. The maternal great-grandmother told the social worker Mother no longer lived in her home and she did not have contact information for Mother.
3. Mother's visitation and contact with W.C.; W.C.'s relationship with Roxana; and W.C.'s statements regarding reunification with Mother (January 2020-February 2021)
Mother and W.C. remained in contact throughout the reunification period. In early 2020, before the COVID-19 pandemic, Mother had Sunday morning visits with W.C., monitored by Roxana (the caregiver) at a restaurant. Roxana reported no issues with the visits. Roxana's teenage daughter attended the visits, and she would "initiate[] many of [the] conversations" between Mother and W.C., focusing on "school and upcoming activities." The social worker observed the last 15 minutes of a pre-pandemic visit and noted W.C. appeared "comfortable in [M]other's presence," although there was "very little verbal interaction" between the two. W.C. hugged Mother before leaving the visit. Roxana also reported that Mother called W.C." 'nearly every other day before bedtime.'" The monitored calls lasted under five minutes and "consist[ed] of basic pleasantries, such as asking 'how was your day?' and saying goodnight to each other."
During a January 21, 2020 team meeting, then 10-year-old W.C. informed DCFS that her goal was to live with Mother. She was reportedly doing well in her placement with Roxana and in school and participating in weekly counseling and an afterschool program.
During the pandemic, Mother's in-person visits were suspended. In May 2020, DCFS reported: "[Roxana] monitors [M]other's phone calls. Which [sic] occur nearly always at 7pm. [Mother] calls and talks to W[.C.] for approximately two minutes before saying 'goodnight' and ending the call. [Mother] will use these very quick calls to ask how [W.C.] is doing, ask if she is listening to [Roxana] and following house rules, [and] if she is doing her school work. According to [Roxana], [Mother] sometimes will miss two days in a row for nightly phone calls, at the most three days of no calls. [Mother] will text a few days later apologizing for not reaching out. On 05/03/20, [Mother] called from her sister-in-law[']s iPhone to FaceTime W[.C.] The duration of this call was between five and ten minutes long and W[.C.] used the visual aid to show off her room to [Mother]." W.C. did "most of the talking" during this call, according to Roxana.
DCFS also reported in May 2020 that Roxana and W.C. had formed a bond, and Roxana had "asked to be considered in the concurrent planning for W[.C.]" W.C. had also "formed a brothersister bond with the toddler in the home" and "developed a friendship with the teenager in the home."
By July 2020, Mother's telephone calls were less consistent. Roxana reported that she "missed up to four days in a row often stating that she lost her phone charger or left her phone in a friend's car."
As of October 2020, Mother was calling W.C. "maybe" once per week, typically on the weekend. Roxana stated that the "inconsistent" calls were "always brief," lasting two to three minutes. During the calls, Mother would tell W.C. she was in compliance with her case plan and "working with [DCFS] to move forward with reunification" (although Mother was not in contact with DCFS and not participating in court-ordered services). Mother might "ask a question or two such as, how are you, how is school, or if W[.C.] listens to [Roxana,] before saying good night." When the social worker asked 10-year-old W.C. about her calls with Mother, all W.C. could articulate is," 'she says goodnight.'" According to Roxana, when Mother called, W.C. would stop what she was doing and take the call. W.C. did not appear anxious in anticipation of Mother's calls; she remained engaged during the calls; and she appeared content during and after the calls.
DCFS also reported in October 2020 that Roxana wanted to "provide permanency" to W.C. if Mother and Father failed to reunify. Roxana told the social worker that W.C. had "become a part of her family" and she loved W.C. For her part, W.C. stated she was amenable to adoption by Roxana if Mother failed to reunify, so long as she could still call Mother and "sometimes visit together." W.C. made comments to the social worker such as," 'I wish I could go back in time to tell my mom not to do the things that got me taken away'" and" 'I wish I could go to the future and make sure that I don't get taken away again.'" W.C. now referred to Roxana as" 'mom.'" She explained she was closely bonded with Roxana's family and felt safe in their home. She wanted to transfer to a school in Roxana's district, so she could attend with her neighborhood friends. Roxana's teenage daughter assisted her with her homework. At a hearing on January 11, 2021, the juvenile court designated Roxana as coeducational rights holder for W.C. Roxana wanted to have W.C. evaluated for special education services due to some "academic difficulties" in school.
During a January 28, 2021 team meeting, 11-year-old W.C. informed DCFS that one of her goals was to resume in-person visits with Mother. According to Roxana, Mother had been calling W.C. daily since W.C. tested positive for COVID-19 in January 2021. Roxana and Mother arranged a monitored visit at the park, which occurred on February 10, 2021. W.C. said the visit was good. Roxana told the social worker that she and Mother were working together to maintain a weekly visitation schedule.
In February 2021, W.C. reiterated to the social worker that if she did not return to Mother, she wanted Roxana to adopt her. W.C. also told the social worker that Roxana and Mother had a good relationship, they were in touch frequently, and she was confident Roxana "would continue to allow [her] to visit and talk to [Mother] as needed" if she adopted her. Roxana told the social worker she and Mother had "good communication with each other." According to Roxana, Mother stated she was "in constant communication" with DCFS. However, DCFS reported no contact with Mother since March 2020, other than a February 2, 2021 text message in which Mother stated she would call the social worker (in response to the social worker's message). The social worker reported that as of February 11, 2021, Mother had not called.
4. Termination of reunification services
Mother was present at the contested 12-month review hearing, held on February 17, 2021. DCFS requested the juvenile court terminate Mother's (and Father's) reunification services. The social worker testified that Mother was not in compliance with her case plan and had not been in contact with DCFS. When Mother's counsel inquired about the nature of the relationship between Mother and W.C., the social worker responded: "I would say it appears limited. But I know that Mother and W[.C.] love each other very much. It's very apparent, even just being around them for five minutes, you can tell."
Mother also testified at the hearing. She acknowledged she had not submitted to any drug or alcohol tests since March 2020 and was not currently participating in any court-ordered services. She stated she had participated in an outpatient drug and alcohol program in either July, August, or September 2020, but she did not complete the program. DCFS informed the court it had no record of Mother's enrollment or attendance at such a program.
The juvenile court terminated Mother's and Father's reunification services and scheduled a section 366.26 permanency planning hearing.
E. Permanency Planning
1. February 17-August 17, 2021
As set forth in DCFS's August 17, 2021 Status Review Report, between February 12 and May 5, 2021, Mother missed 12 drug and alcohol tests. On May 10, 2021, Mother notified DCFS that she had enrolled at a treatment center. Between May 14 and June 7, 2021, Mother tested negative for drugs and alcohol five times, with no missed tests.
Roxana reported Mother was having weekly monitored visits with W.C. When they met at the park, weather permitting, Mother brought a baseball, bat, and glove to teach W.C. the basics of baseball. W.C.'s adult half sibling K.P. accompanied Mother on several visits, and the maternal grandparents attended one, although DCFS had not approved any of these relatives for visits. According to Roxana, W.C. "cried because she was happy to see" these relatives. Roxana told the social worker that her (Roxana's) communication with Mother was positive, other than Mother telling her DCFS had given permission for the adult relatives to attend visits, when she knew DCFS had not. For several months, Mother's telephone contact with W.C. had been more consistent, with Mother calling nearly every evening to ask W.C. how she was doing, to remind her to behave and follow house rules, and to say goodnight.
W.C. requested that Mother participate in an April 22, 2021 team meeting, and Mother did. During the meeting, W.C. said her goal was to play baseball that summer. She wanted Mother, K.P., and the maternal grandparents to attend her games.
Mother informed DCFS that she wanted to reunify with W.C. (although her reunification services had been terminated). W.C. told DCFS she wanted to be adopted by Roxana "as long as [the] current visitation schedule remain[ed] in place for her to see [Mother]." W.C. also said she wanted to have contact with extended maternal relatives. DCFS stated in the Status Review Report that these relatives were "encouraged to watch W[.C.]'s games and support her in the stands until a more formal visitation schedule [could] be assessed."
2. Mother's November 2021 section 388 petition
On November 16, 2021, Mother filed a section 388 petition, requesting the juvenile court return W.C. to her care, or in the alternative reinstate reunification services, and/or liberalize her visitation (which was then monitored). In the petition, Mother stated she had "been consistently addressing all the issues" that had brought this matter before the juvenile court. Specifically, she stated she had completed an alcohol and drug abuse program at a recovery center, as well as parenting classes and domestic violence education. She added that she was "committed to her sobriety" and had been participating in NA/AA meetings and had a sponsor. She further stated she had been consistently visiting W.C. weekly without issue, she and W.C. had a strong bond, and it would be in W.C.'s best interests "to continue the developed bond with [Mother]." She added that she could "provide [W.C.] with love, support, and familial bond."
In a declaration attached to the petition, Mother stated, in pertinent part: "Since the court terminated my Family Reunification Services, I have participated in all recommended services, [and] I have been addressing all the case issues that ha[ve] brought this matter before the Court." She added: "Since completion of my programs, I have learned how to seek and receive[] help. I have also learned how to better deal with life's situations in a positive and constructive manner, as well as how to be consistent in my approach to life's obstacles." She also stated: "I am seeking custody of my child W[.C.], as it would be in her best interest to have her mother in her life. Every child deserves a loving parent that can provide her with love and care, as well as the determination to succeed in life no matter the circumstances."
Mother attached to her declaration copies of (1) a certificate of completion of a parenting program, dated September 3, 2021; (2) a certificate of completion of a domestic violence education course, dated September 3, 2021; (3) a certificate of completion of an alcohol and drug awareness course, dated July 3, 2021; (4) NA/AA sign-in sheets for the period April 6, 2021 through November 2, 2021; and (5) an email from an individual stating she had been Mother's sponsor since April 19, 2021, Mother had been attending weekly 12-step meetings, and Mother was currently working on the eighth step.
Mother also attached to her declaration an August 10, 2021 letter from a treatment center, stating Mother completed the intake process for an "Intensive Outpatient Program" on March 1, 2021. According to the letter, Mother was enrolled in and participated remotely in the following classes: "Process Group, Healthy Relationships, Addiction Education, 12-Step / MAAEZ, Relapse Prevention, Changing Criminogenic Thinking, Life Skills, and Coping w/Trauma." She had been attending the virtual program five days a week for three hours per day. Through the program, she tested negative on five random urine tests between May 18 and July 23, 2021. The counselor concluded the progress letter by stating: "[Mother] has demonstrated that she remains free from all mind-altering substances. [Mother] has been participating in her individual sessions and has shown good insight into her addiction and disease concept. [Mother] is showing excellent progress in treatment and recovery. [Mother]'s expected date of completion is September 1, 2021." Mother did not attach to her petition documentation indicating completion of the Intensive Outpatient Program (only a certificate of completion of an alcohol and drug awareness course, predating this letter from the counselor).
On November 18, 2021, the juvenile court issued an order scheduling a December 17, 2021 hearing to decide "whether the court should grant or deny an evidentiary hearing" on Mother's section 388 petition. The court also ordered DCFS to prepare a report addressing the petition.
DCFS filed a "388 Response Report," dated December 17, 2021. Therein, DCFS summarized a dependency investigator's December 13, 2021 interview with Mother's counselor at the treatment center. The counselor stated Mother "had been absent for about 1 month due to having a lot going on," and Mother "reinitiated services" on November 23, 2021 (a week after Mother filed the section 388 petition). She added that Mother "ha[d] been dropped down to less intensive services" and was currently attending group and individual meetings on a weekly basis. Mother submitted to random drug and alcohol tests through the program and had not tested positive. According to Mother's counselor, Mother's "primary substance use issue is alcohol," and she was "not aware of any other substances." The counselor had no concerns about Mother at that time and informed the investigator that Mother would "continue to be part of her program until sometime in the end of April [2022]."
DCFS reported that between June 2, 2021 and September 27, 2021, Mother tested negative for drugs and alcohol on eight occasions and missed four tests. Between October 7, 2021 and December 1, 2021, Mother missed all nine scheduled tests. On her most recent test on December 6, 2021, Mother tested positive for marijuana.
On December 13, 2021, the dependency investigator spoke with Mother by telephone and asked if she could meet Mother at the maternal grandmother's home to assess Mother's living situation as part of an overall assessment of Mother's ability to care for W.C. Mother explained she was "working on moving" and probably would not take W.C. to the maternal grandmother's home if W.C. were returned to her custody.
On December 14, 2021, the dependency investigator conducted a telephonic interview with Mother. Mother denied ever having a problem with drugs or alcohol and said she was attending classes because she had been asked to do so. She also denied ever possessing drugs (notwithstanding her prior conviction for possession of a controlled substance for sale). She stated she was fighting her most recent charges for possession of controlled substances for sale and refused to accept an offer of probation "because that would be like admitting guilt." She denied ever smoking marijuana and said she planned to challenge the December 6, 2021 positive test. The investigator reported, "Mother was unable to elaborate on what she has learned from the classes she has taken." Mother denied talking to W.C. about the dependency proceedings (in contradiction of Roxana's and W.C.'s prior statements).
The dependency investigator also interviewed Roxana and W.C. (separately) on December 14, 2021. Roxana said she had no concerns about Mother's once weekly visits with W.C., other than that Mother ended the visits after an hour and did not utilize all the time the juvenile court had granted her (two visits per week for two hours each). Mother called W.C. every day and they talked for about 10 minutes. Roxana told the investigator she was committed to allowing W.C. to have contact with Mother and maternal relatives, even if she adopted W.C., because she understood W.C. had a "strong bond" with Mother and she would not "take that away from her."
The dependency investigator asked W.C. where she would want to live if she had a choice and W.C. responded," 'I don't know, I want to live here [with Roxana] but also want to live with my mom.'" W.C. explained she wanted to stay with Roxana because of her "connection" to Roxana, Roxana's family, and her friends. She wanted to live with Mother "because that would mean she could see her other family members as well." If she returned to Mother, she wanted to live near her grandparents. She missed seeing her grandparents and her sisters (half siblings). She used to see them when she had softball games, and they came to watch her play. W.C. stated Mother sometimes would bring half sibling K.P. to visits. W.C. enjoyed visits with Mother. They would "talk about stories of when [W.C.] was younger," and Mother would bring "pictures of when she was young."
At the end of the interview, W.C. "reiterated that whatever decision is made she will 'be happy but sad at the same time.' " She explained "she would be happy to stay with [Roxana] but sad for [Mother], and vice versa." She also told the investigator that Roxana said she could "continue to be in contact with [Mother] and her extended family" if Roxana adopted her.
At the December 17, 2021 hearing, held before Judge Michael C. Kelley, Mother's counsel argued Mother made a prima facie showing in her section 388 petition of changed circumstances and that the requested relief would be in W.C.'s best interests, and requested the juvenile court set the matter for an evidentiary hearing. DCFS's counsel and W.C.'s counsel urged the juvenile court to deny the petition without an evidentiary hearing, arguing Mother did not make a showing of changed circumstances or that it would be in W.C.'s best interests to grant the requested relief.
Mother's counsel objected to the court's consideration of DCFS's section 388 Response Report in determining whether Mother's petition stated a prima facie case for relief. The court stated: "Well, I did order a response. So [DCFS] can't be faulted for filing something. But you're right. I -- I'm not going to consider evidence that's not appropriate in a prima facie hearing to decide whether there is a sufficient basis to set the matter for a hearing." DCFS's counsel stated the court could consider the history of the case in determining if Mother made the requisite prima facie showing.
The juvenile court denied Mother's section 388 petition without setting the matter for an evidentiary hearing. The court found Mother made a showing of changing but not changed circumstances. The court stated Mother could file another section 388 petition if there were further evidence to make a showing of changed circumstances. The court further stated: "And given the minor's statement and attitude, I'm not going to rule today on the best interest prong on the 388 because I don't want to be perceived as sort of taking a position on a set of issues that will likely come before the court at the time of the [section 366.]26 hearing."
In May 2022, Mother filed a second 388 petition, seeking the same relief she sought in the first. She withdrew the second petition in advance of the section 366.26 hearing.
On December 17, 2021, Mother appealed from the order denying her section 388 petition.
3. Period of supervision from December 17-2021-August 30, 2022
Mother provided to the juvenile court a letter from the treatment center stating she completed her Intensive Outpatient Program on February 16, 2022 (in connection with the second section 388 petition she filed and then withdrew). Other than a negative test on December 15, 2021, Mother failed to show for the drug and alcohol tests scheduled during this period of supervision.
On May 31, 2022, Mother pleaded no contest to one misdemeanor count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), arising from the June 6, 2019 incident. Imposition of sentence was suspended, and Mother was placed on summary probation for one year. The counts for possession of methamphetamine and heroin for sale (Health & Saf. Code, §§ 11378, 11351) were dismissed pursuant to the plea negotiation.
A detailed summary of Mother's contacts with 12-year-old W.C. during this period of supervision is not warranted or necessary because things remained consistent. Mother had monitored visits once a week. Mother continued to help W.C. with her softball skills. During softball season, W.C. had more contact with Mother at practices and games. W.C. reported Mother "is a helpful mom to have on the sidelines cheering her on and supporting her season goals" (e.g., to be named the starting pitcher for her team). W.C. had a birthday visit with Mother, the maternal grandparents, and half sibling K.P. W.C. enjoyed the visits and the short nightly calls with Mother before bed to say goodnight.
W.C. continued to express that she wanted to be adopted by Roxana, but she still wanted to be able to visit Mother. She worried that if she reunified with Mother, she would "be pulled from [Mother]'s care in the future." The social worker faulted Mother for giving W.C. "false promises and hope that she is compliant with her case plan and actions toward reunification."
DCFS recommended the juvenile court terminate Mother's and Father's parental rights and select adoption as W.C.'s permanent plan.
4. Section 366.26 hearing
W.C. testified on her own behalf at the August 30, 2022 section 366.26 hearing, held before Judge Donald A. Buddle, Jr. She stated she was 12 years old and in the sixth grade.
Her counsel asked W.C. to explain why they were in court that day, and she responded, "They are going to remove my parents' parental rights." She defined termination of parental rights as follows: "It means that my parents won't get to have a say in what I can and can't do, and that I won't be able to go live with them." Her counsel asked her to explain what legal guardianship means to her, and she replied: "Legal guardianship means where my parents get to keep their rights, but I get to live with my foster mom. And anytime they want me to go back with them, then they can start another case." She was aware DCFS recommended adoption for her. She explained, "I want to be adopted because I've been in foster care basically my whole life, and I want to have a safe and stable home." She believed Roxana was able to provide her with such a safe and stable home.
Her counsel inquired about visits with Mother. W.C. testified that they had regular visits, and she enjoyed them. On weekends, they would have breakfast or lunch or sometimes go to the park. She was aware that Mother would no longer have a legal right to visit her if the juvenile court terminated Mother's parental rights, and she was "okay with that." Her counsel asked, "If the court were to terminate parental rights today, do you think that would have any bad or negative impact on you in any way?" She responded, "No."
Mother's counsel cross-examined W.C. Counsel asked what she liked most about visiting Mother, and she replied, "I don't know." Counsel asked what she disliked about visiting Mother, and she responded, "That sometimes she talks about court." When asked about specific activities, W.C. stated she liked playing softball with Mother and going out to eat with Mother.
Mother's counsel asked W.C. why she was concerned about Mother reopening the case if the juvenile court selected legal guardianship as her permanent plan. She replied: "Because if I go back with her, I'm afraid I'm going to get tooken [sic] away again." She testified she recently had a conversation with Mother about these feelings and "[i]t didn't go as expected" because she "thought the whole point of the conversation" was that if she wanted to be adopted, Mother would "let" her. W.C. acknowledged Mother told her that she wanted her to be happy and respected that she was comfortable in Roxana's home. But W.C. did not believe Mother when she made those statements.
Mother's counsel asked W.C. how she would feel if she were able to have a stable home with Roxana, and have the case close, but also continue to have a relationship with Mother. She responded, "I would feel good about that."
Mother also testified at the section 366.26 hearing. She stated she wanted the juvenile court to select legal guardianship over adoption because she loved W.C. and followed through with her case plan so she could be in her life and be her mom. Her counsel asked how she responded when W.C. told her that she wanted to be adopted. Mother stated: "Well, I just told her that, like, I want her to be happy, and I understand that she feels -I'm glad that she feels stable, and she's happy there. But I'm still her mom, and I feel like I'll just be cut out of her life. And for what? I don't see a reason why I should be cut out of her life."
Mother testified she visited W.C. once a week for two hours per visit and typically talked to W.C. every day by phone. She said she was available to have more time with W.C., and she did not know why her visits were only two hours per week. During visits, they would go out to eat, go to the park, and play softball. She taught W.C. how to play softball. During phone calls, she would ask W.C. "how she's doing in school, what she did that day, what she ate for dinner, how her braces are doing, because she has braces, things like that." She also made sure to say goodnight to W.C. and tell her she would talk to her the next day. Mother also testified that she asked Roxana for updates on W.C.'s day-to-day life.
During argument, Mother's counsel urged the juvenile court not to terminate parental rights, arguing the parental-benefit exception applied because Mother had maintained regular visitation and contact, and W.C. would benefit from continuing the relationship. Counsel stated the court had to assume all ties between Mother and W.C. would be severed, and there would be no more visitation, if the court terminated parental rights. Counsel argued the appropriate permanent plan was legal guardianship. Counsel acknowledged that Mother could institute new section 388 proceedings, seeking custody of W.C., if W.C. were placed under legal guardianship.
W.C.'s counsel agreed with DCFS's recommendation that parental rights be terminated. Counsel argued Mother did not establish the parental-benefit exception and urged the juvenile court "to consider W[.C.]'s wishes when making its ruling." Counsel asserted W.C. "is quite mature for her age," and she "understands what adoption means, and she understands that can mean she may never see her mother again."
DCFS's counsel asserted that "the parent child relationship between [Mother] and [W.C.] never actually developed," given the amount of time W.C. spent out of Mother's care and the instability she experienced when she was in Mother's care. Counsel further argued that the "cordial visits" between Mother and W.C. did not establish that W.C. benefitted from the relationship; and the relationship caused W.C. discomfort because she feared being returned to Mother absent the stability that adoption provided.
The juvenile court found the parental-benefit exception to termination of parental rights did not apply. Reviewing the factors set forth in In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.), the court found (1) Mother maintained regular visitation with W.C.; but (2) W.C. would not benefit from continuing the relationship with Mother, given the negative effect of her concerns about being returned to Mother and taken away again; and (3) "the benefit of adoption and permanency and continued stability as opposed to the risk of being returned to Mother and removed" outweighed "any harm by severing the relationship with Mother." The court found by clear and convincing evidence that W.C. was adoptable, selected adoption as the permanent plan, and designated Roxana as the prospective adoptive parent.
DISCUSSION
Mother contends the juvenile court abused its discretion in denying her first section 388 petition and erred in finding the parent-child relationship exception to termination of parental rights did not apply to her relationship with W.C.
I. Section 388 Petition
Under section 388, "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 petition shall 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 or termination of jurisdiction." (§ 388, subd. (a)(1).) Section 388 is "an 'escape mechanism' when parents complete reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
"The parent seeking modification must 'make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.]' [Citations.] 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.] If the liberally construed allegations of the petition do not show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; see In re Marilyn H., supra, 5 Cal.4th at p. 309 [section 388 "petitions are to be liberally construed in favor of granting a hearing to consider the parent's request"].) The "allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory." (In re Alayah J. (2017) 9 Cal.App.5th 469, 478.) "When determining whether the petition makes the necessary showing, 'the court may consider the entire factual and procedural history of the case.'" (In re Samuel A. (2020) 55 Cal.App.5th 1, 7.)
To satisfy the first prong of the prima facie showing, "the petitioner must show changed, not changing, circumstances" (In re Mickel O. (2011) 197 Cal.App.4th 586, 615), and "the change in circumstances must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) "In other words, the problem that initially brought the child within the dependency system must be removed or ameliorated." (In re A.A. (2012) 203 Cal.App.4th 597, 612; In re J.M. (2020) 50 Cal.App.5th 833, 846 ["A parent establishes a substantial change of circumstances for purposes of section 388 by showing that, during the period between termination of reunification services and the permanency planning hearing, he or she has resolved the previously unresolved issues supporting juvenile court jurisdiction"].)
"The petition is addressed to the sound discretion of the juvenile court, and its discretion will not be overturned on appeal in the absence of a clear abuse of discretion." (In re A.A., supra, 203 Cal.App.4th at p. 612.) A"' "reviewing court will not disturb that decision unless the [juvenile] court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We review the juvenile court's factual findings for substantial evidence. (In re J.M., supra, 50 Cal.App.5th at p. 846.)
The record does not show the juvenile court abused its discretion in denying Mother's first section 388 petition without holding an evidentiary hearing. Mother's petition, liberally construed in her favor, did not make a prima facie showing of changed circumstances.
As set forth in detail in the background section of this opinion, from the outset of this case, Mother informed the juvenile court she had no objection to a testing requirement, given her criminal history of possessing controlled substances. She also told the court she understood that if she had a missed or diluted test she would be required to complete a full drug and alcohol program with aftercare. On September 26, 2019, after missed and diluted tests, Mother told the social worker she would enroll in a drug program that same day. The following day in court, her counsel (in her presence), informed the juvenile court that she was willing to complete a full drug and alcohol program due to the missed and diluted tests. The court held off on making such an order and admonished her not to have any more missed or diluted tests. Mother missed more than 10 additional tests before the court ordered a full drug and alcohol program on January 22, 2020.
Nearly two years later, on November 16, 2021, when Mother filed the section 388 petition at issue here, she still had not completed a full drug and alcohol program. The documents she attached to her petition showed she had completed a drug and alcohol awareness course and was enrolled in an intensive outpatient drug and alcohol program. Although the letter from the treatment center, that she attached to her petition, stated she was expected to complete the program on September 1, 2021 (before the petition was filed), she made no showing that she had actually completed the program (and we know from the record before us that she had not). Even if she had completed the program on September 1, 2021, the juvenile court did not abuse its discretion in finding she did not make a prima facie showing that her circumstances had truly changed in such a short period of time (the two and a half months between then and the date she filed the petition). The juvenile court denied the petition without prejudice and invited Mother to file another petition if she had further evidence of changed rather than changing circumstances.
Mother asked the juvenile court not to consider DCFS's responsive report in determining whether she made a prima facie showing of entitlement to the requested relief. As summarized above, the responsive report indicated Mother had not yet completed the intensive outpatient program, and she had paused her participation in the program in the month before she filed the section 388 petition at issue. The report also stated Mother tested positive for marijuana on December 6, 2021, after she filed the petition but before the court denied it without an evidentiary hearing. Excluding this report from consideration in evaluating the adequacy of Mother's prima facie showing, the juvenile court did not abuse its discretion in denying the petition, for the reasons we already stated.
We note that in May 2022, Mother filed a second section 388 petition seeking the same relief she sought in the first. She attached to that second petition documentation stating she completed the intensive outpatient program on February 16, 2022, three months after she filed the section 388 petition at issue here in which she alleged changed circumstances. Mother withdrew the second petition before the juvenile court ruled on it.
Mother argues the juvenile court should have granted her an evidentiary hearing on the best interests of the child prong of the section 388 prima facie analysis. As discussed above, the juvenile court found Mother did not make a prima facie showing of changed circumstances-a requisite showing for an evidentiary hearing-and we have concluded the juvenile court did not err in summarily denying Mother's first section 388 petition on that basis alone. Accordingly, we need not address whether Mother made a prima facie showing that placing W.C. in her care, or reinstating reunification services, and/or liberalizing Mother's visitation was in W.C.'s best interests.
II. Parental-Benefit Exception to Termination of Parental Rights
When a juvenile court "cannot safely return a dependent child to a parent's custody within statutory time limits, the court must set a hearing under section 366.26." (Caden C., supra, 11 Cal.5th at p. 630.) At the section 366.26 hearing, the juvenile court is required to select and implement a permanent plan for a dependent child. The "question before the court [at a section 366.26 hearing] is decidedly not whether the parent may resume custody of the child," as "reunification services have been terminated, and the assumption is that the problems that led to the court taking jurisdiction have not been resolved." (Caden C., at p. 630.) If the court determines by clear and convincing evidence that the dependent child is likely to be adopted, "the court shall terminate parental rights to allow for adoption" unless a parent shows termination would be detrimental to the child for one of the reasons enumerated in section 366.26, subdivision (c)(1). (Caden C., at pp. 630-631.) If the parent makes the requisite showing, the "court should decline to terminate parental rights and select another permanent plan." (Ibid.) Only" 'in exceptional circumstances'" will a court choose a permanent plan" 'other than the norm, which remains adoption.'" (Id. at p. 631.)
The parental-benefit exception, at issue here, applies where the juvenile "court finds a compelling reason for determining that termination would be detrimental to the child" because: "The 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).) As our Supreme Court has explained, a parent must prove three elements "to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Caden C., supra, 11 Cal.5th at p. 631.) "[I]n assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child's relationship with the parent outweighs the benefit to the child of placement in a new adoptive home. [Citation.] By making this decision, the trial court determines whether terminating parental rights serves the child's best interests." (Id. at p. 632.)
As to the first element of the exception-regular visitation and contact-the "question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (Caden C., supra, 11 Cal.5th at p. 632.) "Visits and contact 'continue[] or develop[] a significant, positive, emotional attachment from child to parent.'" (Ibid.)
"As to the second element, courts assess whether 'the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).) Again here, the focus is the child. And the relationship may be shaped by a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'" (Caden C., supra, 11 Cal.5th at p. 632.) Courts "often consider how children feel about, interact with, look to, or talk about their parents. [Citations.] Doing so properly focuses the inquiry on the child, even as courts must remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Ibid.) To satisfy this element, "the parent must show that the child has a substantial, positive, emotional attachment to the parent - the kind of attachment implying that the child would benefit from continuing the relationship." (Id. at p. 636.)
"Concerning the third element - whether 'termination would be detrimental to the child due to' the relationship - the court must decide whether it would be harmful to the child to sever the relationship and choose adoption. (§ 366.26, subd. (c)(1)(B); see also id., subd. (c)(1)(D).) Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship. [Citations.] What courts need to determine, therefore, is how the child would be affected by losing the parental relationship - in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Caden C., supra, 11 Cal.5th at p. 633.) "When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be 'detrimental to the child due to' the child's beneficial relationship with a parent. (§ 366.26, subd. (c)(1)(B)(i).)" (Id. at pp. 633-634.)
"When it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s). Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent. [Citation.] Accordingly, courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home. [Citation.] Even where it may never make sense to permit the child to live with the parent, termination may be detrimental. [Citation.] And the section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver." (Caden C., supra, 11 Cal.5th at p. 634.) The parental-benefit exception does not permit "a judgment about the parent's problems to deprive a child of the chance to continue a substantial, positive relationship with the parent." (Id. at p. 643.)
The parent challenging the termination of parental rights based on the parental-benefit exception has the burden of proving by a preponderance of the evidence that the exception applies. (Caden C., supra, 11 Cal.5th at p. 629.)
We review for substantial evidence the juvenile court's determinations (1) whether the parent has visited and maintained contact with the child consistently and (2) whether the relationship is such that the child would benefit from continuing it. (Caden C., supra, 11 Cal.5th at pp. 639-640.) We may" 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts,'" and we will uphold the trial court's determinations supported by substantial evidence even if" 'substantial evidence to the contrary also exists.'" (Ibid.)
We review whether termination of parental rights would be detrimental to the child for abuse of discretion. (Caden C., supra, 11 Cal.5th at p. 640.) "A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"' [Citation.] But '" '[w]hen 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.'" '" (Id. at p. 641.)
It is undisputed here that Mother maintained regular visitation and contact with W.C., establishing the first element of the parental-benefit exception. Nonetheless, we described in detail in this opinion Mother's contact with W.C. over the course of W.C.'s life, because the nature and quality of the contact informs the analysis on the other prongs of the parental-benefit exception, as explained in Caden C. (See Caden C., supra, 11 Cal.5th at p. 632.)
As set forth in more detail above, W.C. spent the first two years of her life in Mother's care. Then, in February 2012, DCFS filed the prior dependency proceedings involving W.C. It is not clear from the record how much interaction Mother had with W.C., or if W.C. lived with Mother, during the course of those proceedings, which resulted in Mother losing custody of W.C. in May 2016 when the case terminated. In the summer of 2016, when W.C. was six years old, Mother assumed care for W.C., although she was only allowed monitored visitation under the operative custody order. A little more than two years later, in November 2018, when W.C. was eight years old, DCFS detained W.C. from Mother in the current dependency case. The juvenile court placed W.C. with Mother, over DCFS's objection, in late March 2019. Seven months later, in late October 2019, the juvenile court removed W.C. from Mother's custody, after she failed to comply with the drug and alcohol testing requirement that she had consented to, and was arrested for possession of methamphetamine and heroin for sale (later pleading no contest to a misdemeanor count of possession of a controlled substance). W.C. lived out of Mother's care for the duration of the dependency proceedings in this case. It is clear from the record that W.C. lived with Mother for significant periods of her life (which are not subject to exact quantification given the dearth of information regarding the prior dependency proceedings). W.C. lived continuously with Roxana for more than two and a half years prior to the August 30, 2022 section 366.26 hearing.
In the years leading up to the section 366.26 hearing, Mother typically visited W.C. once a week for an hour or two, sometimes also attended W.C.'s softball practices and games, and had short evening calls with W.C. to ask her how she was doing and to say goodnight. The record shows W.C. enjoyed her visits and calls with Mother, and liked having Mother teach her to play softball and cheer for her on the sideline at games.
We need not determine whether substantial evidence supports the juvenile court's finding on the second element of the parental-benefit exception-whether W.C. would benefit from continuing the relationship with Mother. Even assuming the juvenile court erred in finding Mother failed to satisfy the second element, we would not reverse the order terminating parental rights. As explained below, the record does not demonstrate the court abused its discretion as to the third element, in concluding termination of parental rights would not be detrimental to W.C. because maintaining the relationship did not outweigh the security and stability of adoption.
As Mother points out, in assessing this third element, we may not consider the possibility of continued contact between Mother and W.C., notwithstanding Roxana's assurances that she would continue to permit such contact. We must assume for purposes of this analysis that the relationship between Mother and W.C. will be permanently severed. (See Caden C., supra, 11 Cal.5th at p. 633.)
In Roxana's family, W.C. found the safety and stability she had always wanted. She explained that legal guardianship threatened her sense of security and stability because it would allow Mother to continue to try to fight for custody of her. That frightened her. She did not want to reunify with Mother and feared returning to Mother's custody, given the instability she had endured when she sporadically lived with Mother. At the section 366.26 hearing, Mother's counsel acknowledged that under legal guardianship Mother could institute new section 388 proceedings to try to seek custody of W.C.
Although W.C. wanted to maintain visits and calls with Mother, she did not want to do so at the expense of foregoing adoption. The record, including Mother's testimony, indicates Mother informed W.C. that she could be "cut out" of W.C.'s life unless W.C. were placed under legal guardianship. W.C.'s counsel, who discussed the matter with W.C., assured the juvenile court that W.C. understood if the court selected adoption as the permanent plan, W.C. might never see Mother again. W.C. remained adamant that adoption was the only permanent plan that would provide the security and stability she needed.
We recognize that this situation is difficult for all involved. But a court may choose a permanent plan" 'other than the norm, which remains adoption'" only" 'in exceptional circumstances.'" (Caden C., supra, 11 Cal.5th at p. 631.) There are no such exceptional circumstances here. Despite W.C.'s age and the amount of time she spent in Mother's custody, the record does not demonstrate she had such a substantial, positive, emotional attachment to Mother that it would be detrimental to her to terminate Mother's parental rights. Again, we acknowledge that W.C. consistently stated she wanted to visit and call Mother. No one disputes she enjoyed the visits and calls with Mother. But maintaining that friendly, loving interaction did not outweigh the benefits to W.C. of adoption. Her fear of instability, if her goal of adoption were not realized, was detrimental to her; and it damaged her relationship with Mother-especially when Mother repeatedly spoke to her about trying to regain custody- overriding the positives in the relationship, as her testimony at the section 366.26 hearing demonstrated. Under the circumstances, we cannot conclude the juvenile court exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination. (See Caden C., at p. 641.) The court did not abuse its discretion.
DISPOSITION
The orders are affirmed.
We concur: ROTHSCHILD, P. J. WEINGART, J.