Opinion
G057873
12-31-2019
In re ASHER A., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MELISSA P. et al., Defendants and Appellants.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Melissa P. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Richard A. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17DP0711) OPINION Appeal from an order of the Superior Court of Orange County, Katherine E. Lewis, Judge. Affirmed. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant Melissa P. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Richard A. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
* * *
In June 2017, the police arrested Melissa P. (mother) and Richard A. (father) for drug related offenses. The Orange County Social Services Agency (SSA) took the parents' one-month-old child Asher A. into protective custody and filed a juvenile dependency petition. (Welf. & Inst. Code, § 300.) The juvenile court placed Asher with relatives and ordered reunification services.
Subsequent undesignated statutory references are to the Welfare and Institutions Code.
In February 2019, the court terminated reunification services and ordered a permanency hearing. Mother petitioned the court to modify its order. The court summarily denied the petition, found Asher adoptable, and terminated parental rights.
Mother argues the juvenile court abused its discretion by denying her petition without an evidentiary hearing, and erred by finding that the benefit (or parental bond) exception to adoption did not apply. Father joins. We affirm the order.
I
FACTS AND PROCEDURAL BACKGROUND
In June 2017, the parents' vehicle broke down in front of an Irvine medical office. The employees noticed the parents seemed to be under the influence and called the police. An officer found heroin in mother's bag along with a pacifier. An officer signed a petition for protective custody. SSA filed a dependency petition and placed Asher with Rebecca P., the child's paternal aunt.
Reunification Period
In August 2017, the juvenile court ordered reunification services. Mother's probation officer in Missouri told her that she needed to return to that state because she had been convicted of a violent crime. The parents returned to Missouri and were ordered to complete: "outpatient drug treatment, counseling, drug testing, parenting education, and 12-step meetings."
In September 2017, the police arrested both of the parents for drug offenses. In December 2017, mother tested positive for morphine and tampered with a drug patch. Father presented with a tampered drug patch; he had frequent incarcerations and relapses. Throughout this period, the parents had videophone visits with Asher due to his placement in California.
In February 2018, Asher was placed with his maternal grandmother, Bonnie P., in Missouri. Mother later tested positive for fentanyl and PCP. Mother failed to appear for eight drug tests and two of her drug patches were rejected. In June 2018, the police arrested father for driving under the influence; at the time, mother was in the vehicle. The police noted that both parents were "'visibly impaired'" and were generally "incomprehensible." Father tested positive for morphine and opiates; he failed to appear for numerous drug tests. Bonnie reported mother was allowing father to have unauthorized contacts with Asher. However, after a period of negative test results, mother was permitted to move into Bonnie's home.
In October 2018, Bonnie reported that father was living down the street in his car. Bonnie once found the parents asleep in her basement with a needle or syringe on the floor next to father. Bonnie said that she did not immediately report these incidents because she feared father, who had "threatened to kill anyone" who reported the parents' substance abuse. Mother alleged that her family members were "crazy" and were liars. Mother insisted that she was no longer in a relationship with father. However, mother apparently continued to have daily contact with father.
In December 2018, due to ongoing domestic violence issues and mother's substance abuse, Asher's counsel filed a petition asking the juvenile court to order mother to vacate Bonnie's home. Bonnie reported that she could not provide a permanent home for Asher. Therefore, SSA intended to return Asher to Rebecca's care in California. Mother's and father's visitations during this time were supervised.
Postreunification Period
In February 2019, the juvenile court determined that reunification services were no longer warranted and set a permanency hearing to be held within 120 days. The court placed Asher with Rebecca in California.
During this period, the parents resumed visitation by videophone. Rebecca reported that both parents were "rude" and mother sometimes terminated the calls due to her frustrations with Asher. By May 2019, mother was not contacting Asher as frequently as she had been, and father was incarcerated in Missouri. Mother continued to miss drug tests. Rebecca reported that the parents remained in contact with each other. SSA reported that Asher had adjusted to placement with Rebecca and "interacts with his cousins who live in the home." SSA described Asher as "specifically adoptable, as he is currently placed with relatives who wish to adopt him. He is also found to be generally adoptable, as he possesses many of the characteristics desired by our adoptive families. Therefore, Adoption appears to be the most appropriate permanent plan for the child."
In June 2019, just prior to the permanency hearing, mother filed a petition to change the juvenile court's order terminating reunification services. (§ 388.) The court found that mother's petition failed to demonstrate a change in circumstances and summarily denied it. The court found Asher adoptable and terminated parental rights, finding that none of the statutory exceptions applied.
II
DISCUSSION
Mother argues the juvenile court: A) abused its discretion by denying her section 388 petition without an evidentiary hearing; and B) erred by finding that the benefit (or parental bond) exception to the termination of parental rights did not apply. A. The Court's Summary Denial of Mother's Section 388 Petition
"The purpose of the California dependency system is to 'provide maximum safety and protection for children . . . and to ensure the safety, protection, and physical and emotional well-being of children who are at risk . . . .' [Citations.] The dependency system is child-centered and is designed to protect the child, reunify the family where safe for the child and find a permanent home for the child when reunification is not possible. Its guiding light is the child's best interests." (In re Y.M. (2012) 207 Cal.App.4th 892, 913; see § 300.2.) If reunification is not possible and the juvenile court ceases reunification services, the focus of the proceedings "'shifts to the needs of the child for permanency and stability.'" (In re Celine R. (2003) 31 Cal.4th 45, 52.)
1. Legal Principles Governing Section 388 Petitions
"A juvenile court order may be changed, modified or set aside under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
"However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
"The juvenile court's determination to deny a section 388 petition without a hearing is reviewed for abuse of discretion. [Citations.] We must uphold the juvenile court's denial of appellant's section 388 petition unless we can determine from the record that its decisions '"exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court."'" (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) "An abuse of discretion [is] . . . an arbitrary, capricious or patently absurd determination." (In re Marcelo B. (2012) 209 Cal.App.4th, 635, 642.)
2. Relevant Proceedings
Mother stated in her section 388 petition she was separated from father, had successfully completed substance abuse treatment, and had obtained stable housing and employment. Mother stated that she had "changed [her] life completely" and took "full responsibility for [her] past negative actions." Mother claimed to be "stable" and "reliable." Mother asserted that her substance abuse tests had produced "all clean test results." Mother alleged that she had severed her relationship with father. Mother stated that she had a "strong bond" with Asher and that he "need[ed] to be with her."
At the hearing on the petition, SSA's counsel argued that mother's petition was "a bit misleading and disingenuous." Counsel said that mother had "failed to list her miss[ing] drug tests" from the prior month. Counsel also noted: "Mother indicates that she has completely cut father out of her life; yet we have information in social services reports that she was in daily phone contact with father, that he's called during phone visits with the child. That during visits, when they were in Missouri and being monitored, mother would get on the phone with father. We have all the information pointing to the contrary."
The juvenile court held: "At this time the court, after reading all of mother's moving papers and her exhibits, as well as listening to . . . argument . . . , the court is going to deny the [section] 388 [petition]. [¶] The court finds that there is no change of circumstance; that her circumstances are changing. [¶] Mother has recently completed a drug treatment program. However, that in and of itself does not indicate to me that mother [is] solid and stable in her recovery. [¶] We have several recently missed drug tests. Those in the court's eyes are considered positive tests." (Italics added.)
The juvenile court noted that it "is also concerned because all of the drug tests that were provided to the court . . . indicate that she's . . . testing positive for benzodiazepine throughout. And, we know that she also has abused benzodiazepines. So I cannot feel confident that the active part of the addiction is over. [¶] Furthermore, . . . mother has been in custody at least -- well, twice in Missouri. [¶] I know that she has continued to associate with father. There's reports . . . during father's visits, he's texting mother. During some of mother's Skype visits father is there, maybe one of them. But that, the court does not find that circumstances have changed."
3. Analysis
The juvenile court plainly did not approach its decision in an arbitrary or capricious manner. The court was thoroughly aware of the relevant legal principles; it had reviewed all of the pertinent reports. The court then made a reasoned decision based on the law and the relevant evidence. In short, while we recognize that other courts may have elected to conduct an evidentiary hearing, or may have come to a different decision, we cannot find that the court in this case in any manner abused its discretion. Thus, we affirm the court's summary denial of mother's section 388 petition.
Mother argues that the case of In re Aljamie D. (2000) 84 Cal.App.4th 424 (Aljamie D.), compels a different result. We disagree. In Aljamie D., a mother filed a section 388 petition seeking to modify a placement order. (Id. at p. 426.) The juvenile court denied the petition without holding an evidentiary hearing; the appellate court reversed, finding that the mother was entitled to a hearing: "Clearly her petition made out a prima facie case of changed circumstances. She had completed numerous educational programs and parenting classes, and had tested clean in weekly random drug tests for over two years. She had visited consistently with the children and continued to have a strongly bonded relationship with them. Indeed, the Department does not dispute that [mother's] petition alleged changed circumstances." (Id. at p. 432.)
Here, unlike Aljamie D., the agency in this case (SSA) does not concede that mother's section 388 petition established changed circumstances. Indeed, SSA points out that mother's petition "minimized the severity of her substance abuse and continued to misrepresent or substantiate the extent of her sobriety, relying on a record of drug tests that was both conspicuously selective and demonstrably incomplete." Further, as the juvenile court emphasized in its ruling, mother had missed numerous drug tests, and this pattern continued in the postreunification period. (See In re Kadence P. (2015) 41 Cal.App.4th 1376, 1384 ["a missed drug test, without adequate justification, is 'properly considered the equivalent of a positive test result'"]; see also In re Noah G. (2016) 247 Cal.App.4th 1292, 1304 ["common sense suggests a parent who consistently fails to appear for drug tests does so because of a consciousness of guilt"].)
Moreover, mother continued in the section 388 petition to misrepresent her apparent ongoing relationship with father, who had an acknowledged negative effect on mother's drug rehabilitation efforts. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn.9 [a parent who loses custody because he or she consumes illegal drugs and fails to complete the reunification plan is unlikely to "ever show a sufficient change of circumstances to warrant granting a section 388" petition].) In sum, our review of Aljamie D. and other relevant case law does not alter our analysis.
Finally, mother argues in her reply brief: "The fact that mother's evidence is disputed by the agency is not relevant to the question of whether mother met her burden of proof. The legislature only requires that if the [section 388] petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing." (Italics added.) Again, we disagree.
We do not review a juvenile court's decision on whether to order an evidentiary hearing based on whether there was any evidence presented in the parent's section 388 petition; we review the court's decision for an abuse of its discretion. That is, a juvenile court must necessarily evaluate the strength and quality of the evidence in the section 388 petition in order to make a reasoned judgment as to whether that evidence meets the prima facie requirement under a preponderance of the evidence standard. (See In re Zachary G., supra, 77 Cal.App.4th at p. 806.) Again, in this case we find that the court plainly made its ruling within the bounds of its discretion. B. The Court's Finding That the Benefit Exception to Adoption Did Not Apply
At the permanency planning hearing, the juvenile court determines a permanent plan for the child, and may order one of three alternative plans: adoption, guardianship, or long-term foster care. (§ 366.26, subd. (b); see In re J.C. (2014) 226 Cal.App.4th 503, 528.) "'[T]here is strong preference for adoption over the alternative permanency plans.'" (In re Anthony B. (2015) 239 Cal.App.4th 389, 394-395.) Generally, if the court finds the child adoptable the court must terminate parental rights. "[T]o avoid termination of parental rights and adoption, a parent has the burden of proving, by a preponderance of the evidence, that one or more of the statutory exceptions to termination of parental rights set forth in section 366.26, . . . apply." (In re Anthony B., supra, 239 Cal.App.4th at p. 395.)
1. Legal Principles Regarding the Benefit Exception
The benefit (or parental bond) exception exists where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i), italics added.) In deciding whether the exception applies, "'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 J.C., supra, 226 Cal.App.4th at p. 528.) "'If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.'" (Id. at pp. 528-529.)
In addition, the parent-child relationship must "'promote[] 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 J.C., supra, 226 Cal.App.4th at pp. 528-529.) The factors the juvenile court considers in making this case-by-case assessment include: "'The age of the child, the portion of the child's life spent in the parent's custody, the . . . effect of interaction between the parent and the child, and the child's particular needs.'" (In re G.B. (2014) 227 Cal.App.4th 1147, 1166.)
The benefit exception "does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) "It is not enough to show that the parent and child have a friendly and loving relationship." (In re J.C., supra, 226 Cal.App.4th at p. 529.) "'"[A] child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent."'" (Ibid.)
We apply a mixed standard of review to the juvenile court's determination whether the benefit exception applies. (In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) When the court determines that a parent has not satisfied his or her burden of proof, we decide whether—as a matter of law—the evidence compels a contrary finding. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) When the court determines that a parent has satisfied his or her burden, we apply the substantial evidence standard of review. (In re K.P., supra, 203 Cal.App.4th at pp. 621-622.) Finally, if the court concludes there is a beneficial relationship, but that the benefit to the child is not sufficiently compelling to outweigh the benefit of adoption, we review that conclusion for abuse of discretion. (Ibid.; accord, In re Anthony B., supra, 239 Cal.App.4th at p. 395.)
2. Relevant Proceedings
At the conclusion of the permanency hearing, after mother had testified, the juvenile court held: "At this time the court does find by clear and convincing evidence that the child is both generally and specifically adoptable. He's only two years old. And he is a joy. And, the court feels that . . . it's actually not even been contested that he's not adoptable. [¶] So the court does find by clear and convincing evidence that he is generally and specifically adoptable."
The juvenile court then ruled on the benefit exception: "With respect to mother. The court does find the first prong has been met with regular and consistent visitation. [¶] The court goes then to the second prong; which is, is the bond so significant between the parent and child . . . that to sever it would cause such great harm that the benefits of adoption would not be outweighed. And in this case . . . , mother's not met that burden by a preponderance of the evidence. [¶] And I'm making that conclusion based on the factors that the court is required to consider."
The juvenile court continued: "First of all, the child's age. [Asher], I believe was detained when he was only I think two months old. He . . . [is] now 24 months old. He's two years old. He just turned two. [¶] He has actually lived with the current caregiver, paternal aunt, for eight months between June 2017 and February of 2018; and then again February 2019 to present. So that's a period of approximately 12 months that he has been with the paternal aunt. That's half of his life that he's been out of his mother's care and that specifically he's been in the care of the paternal aunt. [¶] The rest of the time . . . he was, at some point was placed with maternal grandmother out-of-state. And at some point mother . . . had a lot of visitation there. But some of the interactions started to get pretty sour. [¶] The . . . visitations, . . . ended up having to be supervised because the relationship deteriorated so significantly between maternal grandmother and mother, . . . even while [mother] tried to visit the child."
The juvenile court concluded: "Are there some positive interactions? Absolutely. Does this mother love the child? Absolutely. That is very clear. And, . . . I don't feel that the connection is so strong that it would not be -- it's hard to make a double negative out of that. [¶] Court finds that the permanency of adoption is of much greater impact, and import, and benefit to the child, than maintaining this bond with mother. [¶] And further, that by severing this bond, the court feels that any detriment that is created is not outweighed by the benefits of adoption. [¶] The court also considers the age of the child. And he is very young. And, . . . he's got a significant, majority of his childhood ahead of him. Which, suggests that the permanency of adoption, again that's another factor that's in favor of the permanency of the adoption plan. [¶] And again, there's no specific needs that Asher has, that mother is uniquely equipped to give to him. [¶] And so, the court finds that the parental bond exception does not apply."
3. Analysis
Here, the juvenile court determined that mother did not satisfy her burden of proof by a preponderance of the evidence. Based on the record before us we cannot find—as a matter of law— that the evidence compels a contrary finding. (See In re I.W., supra, 180 Cal.App.4th at p. 1528.) Further, there is substantial evidence to support the court's ruling, as well as the overriding statutory preference in favor of Asher's adoption. (See In re G.B., supra, 227 Cal.App.4th at p. 1166 [""'it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement"'"].) And once again, the court's ruling discloses that it applied the relevant legal factors to the facts in this case and it did not reach its decision in an arbitrary or capricious manner.
Thus, the juvenile court properly found the benefit exception did not apply and the court did not err in ordering the termination of parental rights and Asher's adoption. The published opinions cited by mother on this point are unpersuasive. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [the lower "court properly concluded no exceptional situation existed to forego adoption"]; see also In re Zachary G., supra, 77 Cal.App.4th at pp. 811-812 [benefits afforded child from stable relationship with caretaker family outweighed benefits afforded from positive relationship with parent]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [although parents had frequent and loving contact with children, this was insufficient to establish the "'benefit from a continuing relationship'" contemplated by the statutory preference for adoption].)
III
DISPOSITION
The order is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.