Opinion
G058084
02-03-2020
In re A.S., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. N.S., Defendant and Appellant.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18DP0377) OPINION Appeal from orders of the Superior Court of Orange County, Antony C. Ufland, Judge. Affirmed. Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
* * *
N.S. (mother) appeals the juvenile court's order finding her petition under Welfare and Institutions Code section 388 did not make the threshold showing required to hold a hearing to reconsider the court's earlier order terminating reunification services with her 15-month-old daughter, A.S. Mother contends the claims in her petition that she obtained "a Section 8 housing voucher" and that she had "signed up to volunteer at the Down Syndrome Association," in addition to continuing to regularly take her psychotropic medication and "regularly receiving Social Security," warranted a hearing and a new order to extend, rather than terminate, family reunification services. She also argues the court erred in failing to find she had a parental bond with A.S. that was so strong it outweighed the benefits of selecting a permanent plan that included adoption, thereby precluding termination of her parental rights. (§ 366.26, subd. (c)(1)(B)(i).) As we explain, the juvenile court did not abuse its discretion in making either ruling. We therefore affirm the orders.
All further statutory references are to this code. --------
FACTUAL AND PROCEDURAL BACKGROUND
We briefly review the history of A.S.'s dependency to place mother's present claims in context. We draw on excerpts from our opinion denying mother's writ petition challenging the reasonableness of the social service agency's reunification services. (N.S. v. Superior Court (July 18, 2019, G057522) [nonpub. opn.] (N.S.).)
In April 2018, within two days of her birth, A.S. was detained from mother's care after hospital staff observed mother screaming, attempting to remove medical equipment from A.S., talking to herself at night, and declining showers and postpartum medical care. Staff found her "crawling naked on the floor, . . . making animal noises and at one point trying to disconnect the oxygen nasal tube from the baby." Mother had been homeless since 2016 and her medical records reflected that she had "a history of Bipolar Type 1 with psychosis and paranoia." Mother previously had declined mental health treatment, and the juvenile court authorized A.S.'s initial detention in part because of mother's "inability to provide for A.S.'s care during [her] involuntary hospitalization under section 5150." (N.S., supra, G057522.)
Against medical advice and despite noncompliance in taking her prescribed medication, mother ended her hospitalization early. She denied "suffering from any mental illness or having received any treatment and refuse[d] to answer any relevant questions while demanding to be immediately released."
A.S. was born with a host of medical conditions. Fortunately, most of them resolved favorably in the near term, including "what proved to be short term respiratory issues, a heart valve defect that required no immediate medical intervention, and what at first appeared to be a club foot condition, but turned out to be a curvature related to Down syndrome." (N.S., supra, G057522.) Mother rejected the Down syndrome diagnosis, claiming that "the hospital is making it up."
The juvenile court sustained jurisdiction over A.S. in June 2018 on grounds of mother's "failure or inability . . . to supervise or protect the child adequately," mother's inability "to provide regular care . . . due to . . . mental illness, developmental disability, or substance abuse," and "No Provision For Support" by A.S.'s father, whose identity and whereabouts were unknown. (§ 300, subds. (b) & (g).)
After "A.S.'s emergency shelter home placement ended and longer term local placement with caregivers who would commit to a child with Down syndrome fell through, the juvenile court authorized out-of-county placement for A.S. with a family in Riverside County. The family agreed to facilitate A.S.'s continuing [hospital] visits and mother's twice weekly visitation in Orange County." (N.S., supra, G057522.)
A.S. continued to suffer from reflux related to Down syndrome. A.S.'s gastroenterologist barred mother "in late July 2018 from attending further appointments because of her 'aggressive and inappropriate' behavior. A.S. was also seen at CHOC's Neurology Epilepsy Center. That doctor directed A.S.'s foster parents to watch for abnormal movements because children with Down syndrome may have seizures beginning around nine months of age" or earlier; such seizures could "occur at any time." (N.S., supra, G057522.)
When the social worker made a referral in August 2018 for parenting coaches to attend mother's visits with A.S. to help address her special needs, mother responded, '"No thank you. I do not need help."' "A coach nevertheless worked with mother intermittently until late October, when she closed the referral because she had not seen mother for a month and mother was not returning her phone calls." (N.S., supra, G057522.)
The social worker also referred mother "to a monthly parenting education and support meeting through the Orange County Down Syndrome Association (DSA). Mother, who was homeless at the time, arrived at the August 2018 meeting two hours late, at 9:00 p.m., with her sweater covered in grass; her legs and feet were also dirty, as if she had been walking in mud. Staff at the program reported that mother smelled and made 'several other families . . . uncomfortable'; staff further stated her inability to have A.S. present during meetings would adversely affect 'the dynamics of the group.'" (N.S., supra, G057522.) Mother and the social worker discussed postponing her attendance until she progressed '"further in the reunification process"' to have A.S. present with her "'for the meeting[s] like the other families.'" (N.S., supra, G057522.) Mother "agreed not to attend the meetings, but noted she obtained several books from the DSA library." (N.S., supra, G057522.)
In early November 2018, mother "reported she had changed her medication and it 'seem[ed] to be working really well for her . . . .'" (N.S., supra, G057522.) However, she no longer attended a certificate program for "Quickbook Accounting" at Santa Ana College because "'security kicked me out because I have the cats and refuse to leave them outside of the classroom.'" (N.S., supra, G057522.) Mother also attributed her street lifestyle to the cats. The social worker's report for the six-month status review hearing in December 2018 stated mother "maintained a transient lifestyle and is living on the streets . . . as she has been unable to maintain a bed at a homeless shelter due to her owning cats and the shelter not allowing cats." Mother was receiving unemployment benefits, but had not been able to secure a job.
Mother consistently attended appointments with her therapist and psychiatrist, but still grew "obsessed about the idea" of A.S. being harmed. She placed two calls, which she categorized opaquely as for "information only," to the Child Abuse registry hotline with unsubstantiated claims that A.S. was being sexually abused. The social worker found no basis for these claims.
Mother believed A.S.'s caregivers were "'drugging' the child with the formula in her bottles," and therefore mother refused to feed A.S. during visits "despite the child crying to eat." Mother also made periodic comments that A.S.'s sucking noises while bottle feeding were '"rude and [she] needs to learn manners."' Mother did not appear to grasp ordinary developmental milestones or that A.S.'s Down syndrome condition would likely delay others, including sitting up. (N.S., supra, G057522.) The social services agency (SSA) recommended terminating mother's reunification services at the six-month review hearing; instead the hearing was continued several times.
"At the periodic review hearing held in March 2019, the juvenile court heard mother's testimony, the testimony of two social workers, and the court admitted SSA's reports concerning mother's lack of progress toward reunification. The court expressed particular concern that mother's visits with A.S. dating to November 2018 all seemed to end early, and mother never accepted the extra time for visitation that was offered to her. The court could not find a substantial likelihood that A.S. would be returned to mother's unmonitored care in three months at the 12-month review hearing; the court observed that mother could not 'get through an entire two-hour visit [without] leaving early.' Concluding mother had not made substantial progress toward reunification with A.S. despite reasonable services offered by SSA, the court terminated services and set the permanent plan selection and implementation hearing for July 23, 2019." (N.S., supra, G057522.)
Mother challenged by a writ petition the court's order setting the permanency hearing (.26 hearing). She argued the juvenile court erred in concluding, as a prerequisite for setting the .26 hearing, that SSA provided reasonable services to aid her in learning to address A.S.'s Down syndrome. A panel of this court found that substantial evidence supported the reasonable services ruling. (N.S., supra, G057522.)
On the eve of the July 2019 permanency hearing, mother filed a section 388 modification petition seeking further reunification services based on changed circumstances, as we discuss more fully below. Denying the petition, the juvenile court found that, "at best," mother had demonstrated only an "inkling" of "changing circumstance[s]." The court commended mother for the steps she was beginning to take, but concluded her preliminary showing that she was a "little . . . better off was "not a change" within the meaning of the statute to require a hearing on whether to rescind the court's prior order terminating reunification services.
Mother testified at the ensuing .26 hearing. She stated she cared for A.S. during her visits, which remained monitored, and that she met the child's emotional needs. The social worker's report for the hearing reflected that mother "continue[d] to not understand the child's [D]own syndrome diagnosis as evidenced by [her] insistence"—when A.S. was not yet a year old—that she "learn to walk." During visits, mother still sometimes appeared to "choose[] to just sit and not pay attention to the child, staring off in the distance or at the child, with no verbal or facial interactions." A.S. regarded "the prospective adoptive parents," with whom she had lived since her placement at three months old, as "her parents and [was] securely attached to them." Mother acknowledged at the hearing that she heard A.S. say "'Mama,' but that wasn't towards me."
The juvenile court found by clear and convincing evidence that A.S. was "both specifically and generally adoptable." The court observed that "despite a Down syndrome diagnosis, she is otherwise healthy and happy, and . . . is placed with a family that has stated repeatedly that they would be thrilled to adopt [her]." The court found that though mother consistently visited A.S., the two did not have a parent-child relationship that would be detrimental to A.S. if severed, and therefore the parental benefit exception to termination of parental rights did not apply. The court selected adoption as the preferred permanent plan for A.S. and terminated mother's parental rights. She now appeals.
DISCUSSION
1. Modification Petition
Mother contends the juvenile court abused its discretion when it denied her section 388 petition. "Section 388 allows an interested person to petition the juvenile court for a hearing to change, modify or set aside a previous order if the petitioner can establish changed circumstances and that the proposed order would be in the best interests of the child. The burden of proof is on the petitioner." (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423.)
'"Changed circumstances"' means that the problems leading to the dependency have been resolved or eliminated. (In re Edward H. (1996) 43 Cal.App.4th 584, 592.) "[A] parent's petition for an order either returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (In re J.C. (2014) 226 Cal.App.4th 503, 527.) The juvenile court's decision concerning a section 388 petition "will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 318.) "An abuse of discretion occurs when the juvenile court has exceeded the bounds of reason by making an arbitrary, capricious, or patently absurd determination." (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.)
Mother's principal contention is that the court erred in finding she did not make the prima facie showing necessary for an evidentiary hearing on her petition. When "it appears that the best interests of the child . . . may be promoted by the proposed change of order . . . , the court shall order that a hearing be held . . . ." (§ 388, subd. (d).) "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 child[]. [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.)
The standard of review for summary denial of a modification petition remains the same—abuse of discretion. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) "The prima facie requirement [for a hearing] 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. (1999) 77 Cal.App.4th 799, 806.) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case." (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
The juvenile court did not abuse its discretion in concluding mother's petition did not meet the standard for an evidentiary hearing. Mother deserved recognition, as the court acknowledged, for "continu[ing] to work on her mental health" and for starting "on a path that may lead to steady housing for her." "Not every change in circumstance," however, "can justify modification of a prior order." (In re A.A. (2012) 203 Cal.App.4th 597, 612.) The court reasonably could conclude nothing "in the petition or the exhibits accompanying it [rose] to the level of prima facie."
The Section 8 housing voucher mother obtained and her monthly Social Security stipend of $912 a month, while promising, were not sufficient to demonstrate mother would follow through with securing housing or that she would select and maintain a stable residence for A.S.'s benefit. Mother previously had intermittent housing, but gave it up to live on the streets with her cats. She also had chosen to devote funds toward a car as a place for her animals to live instead of securing shelter for her child. Mother gave no timeline except "soon" for finding a home, and she provided no indication she could secure suitable housing for a toddler or had considered A.S.'s needs in particular.
Similarly, mother alleged general compliance with her psychiatric care plan since June 2018, and claimed she had finally found a medication regime that "seem[ed] to be working" for her (N.S., supra, G057522.), but she did not address her paranoia resulting in false claims of abuse. She also did not identify anything in her treatment or insight that would constitute a legally significant change in her circumstances since the juvenile court had terminated reunification.
More fundamentally, mother did not claim—or even recognize a need for—improvement in basic parenting skills, including holding, feeding, burping, or otherwise attending to A.S., and engaging her in developmentally appropriate activities. Instead, mother had a history of refusing help and denying any need for it. Her reliance is therefore misplaced on cases in which the mother's therapist recommended return of the child to her care or the children requested a return and the mother had demonstrated compliance with her case plan. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 428, 432; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1797.)
In light of mother's demonstrated parenting challenges, the juvenile court reasonably could conclude her plan to volunteer at the DSA was too little and too late. "'"[T]he unique developmental needs of infants and toddlers [make] moving to permanency more quickly . . . critical."'" (N.S., supra, G057522.) Despite the difficulties a parent may face, "'[c]hildhood does not wait for the parent to become adequate.'" (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) A.S. was more than 15 months old by the time of the .26 hearing, while reunification services for a dependent child under age three are usually limited to six months. (§ 361.5, subd. (a)(1)(B).) We cannot say the juvenile court abused its discretion in denying mother's modification petition to extend reunification services further.
2. Benefit Exception
Mother contends a statutory parent-child benefit exception precluded the court from terminating her parental rights. The court found the exception did not apply. We agree.
Section 366.26 provides that after reunification efforts have failed and the court finds the child is likely to be adopted, "the court shall terminate parental rights" (id., subd. (c)(1)), unless specified circumstances exist. An exception to this rule may be made where "[t]he court finds a compelling reason for determining that termination would be detrimental" (id., subd. (c)(1)(B)), because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" (id., subd. (c)(1)(B)(i)).
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 maintained during periods of visitation with the parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) Once the mandated period for reunification has passed, the parent bears the burden of proving that termination of parental rights will be detrimental to the child. (Id. at p. 1350.) At that stage, the Legislature's preferred permanent plan calls for termination of parental rights and adoption (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799) because adoption "gives the child the best chance at . . . commitment from a responsible caretaker." (Jasmine D., at p. 1348.)
Thus, the benefit prong of section 366.26, subdivision (c)(1)(B)(i), is satisfied only if "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) The court's balancing of competing considerations must be performed on a case-by-case basis, taking into account variables such as the child's age, "'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.'" (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
"A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child is based on the facts but is not primarily a factual issue. It is, instead, a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315, original italics; accord, In re J.C., supra, 226 Cal.App.4th at p. 531.)
For the exception to apply, the parent must "stand in a parental role to the child." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Friendly or affectionate visits do not outweigh the Legislature's preference for adoption. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Here, unlike in the case of In re S.B. (2008) 164 Cal.App.4th 289, in which the psychologist testified to the strong bond between a father and daughter, nothing indicated A.S.'s relationship with mother was so '"emotionally significant"' to preclude her placement in a permanent home. (Id. at p. 298; accord, In re Amber M. (2002) 103 Cal.App.4th 681, 690.) Mother implicitly acknowledged A.S.'s attachment did not rise to this level when she conceded she heard A.S. use the word, "Mama," but it was not directed to her. Nor does the record show that mother consistently met A.S.'s needs in a parent-child relationship. Where a parent has not progressed beyond monitored visitation, that is a difficult hurdle to meet. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109.) The court reasonably concluded mother did not do so here.
DISPOSITION
The juvenile court's orders denying mother's modification petition and terminating parental rights for mother and A.S.'s unknown father are affirmed.
GOETHALS, J. WE CONCUR: O'LEARY, P. J. MOORE, J.