Opinion
F076773
06-21-2018
In re REYNA F. et al., Persons Coming Under the Juvenile Court Law. MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. VALERIE B., Defendant and Appellant.
Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Miranda P. Neal and Derek Walzberg, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. MJP016675 & MJP017303)
OPINION
APPEAL from orders of the Superior Court of Madera County. Thomas L. Bender, Judge. Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant. Office of County Counsel, Miranda P. Neal and Derek Walzberg, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
FACTS AND PROCEEDINGS
Introduction
On February 1, 2016, a dependency petition was filed by the Madera County Department of Social Services (department) pursuant to Welfare and Institutions Code section 300 alleging Valerie B. (mother) placed her minor children at substantial risk of suffering physical harm due to mother's drug abuse and mental illness causing mother to suffer delusions and making her incapable of properly caring for her children. One son, who was 17 years old when the petition was filed, became an adult during the pendency of these proceedings and is no longer a dependent. The three other minors subject to the dependency are Reyna F., A.R., and M.H., who were seven years old, four years old, and 18 months old, respectively, when the petition was filed.
Unless otherwise designated, all statutory references are to the Welfare and Institutions Code.
After receiving services for over a year, the juvenile court terminated further services for mother. On October 26, 2017, the juvenile court conducted a joint hearing on permanency planning pursuant to section 366.26 and mother's petition pursuant to section 388 to modify the juvenile court's prior order ending her reunification services. The juvenile court denied mother's petition, found adoption as the permanent plan for Reyna F. and A.R., found the beneficial parent-child exception to the preference for adoption did not apply, and terminated mother's parental rights to Reyna F. and A.R.
The permanency planning hearing was continued for M.H. Mother appeals the findings regarding her daughters, Reyna F. and A.R. The children's fathers are not parties to this appeal.
On appeal, mother contends the juvenile court abused its discretion in denying her section 388 petition. She further contends the juvenile court erred in finding the beneficial parent-child relationship exception to adoption did not apply.
Prior Dependency Cases
In March 2007, a dependency petition was sustained because mother's eldest child (not part of this action) had been molested by a family member. Mother received reunification services for a year and a half before the case was dismissed in October 2008. In November 2010, a dependency was created for mother's two older children and Reyna F. after Reyna F., then two years old, found and ingested amphetamines while in mother's home and under mother's care. Mother received family reunification services until March 2012, and family maintenance services until March 2013, when the dependency case was dismissed.
In February 2014, a dependency petition was sustained pursuant to section 300 as to Reyna F., A.R., and mother's now adult son due to mother's chronic and abusive use of methamphetamine, which impaired mother's ability to provide a safe and stable home for her children. Mother received family reunification services for a year. By January 2015, the department assessment found mother had mitigated the circumstances warranting the dependency. Although mother's participation in services was sporadic due to a difficult pregnancy necessitating extensive bed rest, she remained sober with negative random drug tests for a year. The social worker's report noted mother had a significant history of mental health issues related to past trauma and abuse. Mother succeeded in making excellent use of her time in individual counseling and was knowledgeable and able to identify her triggers and to employ coping skills.
Mother's youngest child, M.H., was born during the summer of 2015. Mother planned to continue working with county behavioral services. Because there were no ongoing safety threats to the children, the department recommended dismissal of the case. On January 22, 2015, the juvenile court dismissed the dependency action and granted sole legal and physical custody of the children to mother.
Current Dependency Action
On February 1, 2016, the department filed a petition pursuant to section 300 alleging mother placed her four minor children at substantial risk of suffering serious physical harm as a result of mother's mental illness—paranoid schizophrenia with psychotic features—caused by mother's refusal to take her prescribed medication. This in turn rendered mother incapable of caring for her children. In addition to mother's refusal to take her prescribed psychotropic medication, she still used methamphetamine and marijuana, which exacerbate mother's delusions and hallucinations. Further, mother suffered delusions while under the influence of illegal drugs, resulting in dangerous actions in the presence of her children. In February 2016, the juvenile court found a prima facie showing had been made that the children came within the court's jurisdiction pursuant to section 300. At the jurisdiction hearing on April 8, 2016, the juvenile court found the allegations in the petition true by clear and convincing evidence.
A disposition report was submitted by the department on May 17, 2016. Mother reported suffering from paranoid schizophrenia and bipolar disorder and being prescribed Seroquel and two other medications to treat her symptoms. Mother experienced hallucinations and described them as a gift allowing her to "see things." Mother stopped taking her medication five years earlier. Mother also told the social worker she suffered from serious depression, anxiety, and serious thoughts of suicide. In the past, mother had attempted suicide.
Mother reported she used amphetamines for the previous 27 years, marijuana for 20 years, and drank alcohol to intoxication for 28 years. She also experimented for about one year with cocaine, hallucinogens, and inhalants. Mother denied ever experiencing delirium tremens or overdosing on any drug. She had been treated for drug and alcohol abuse 12 times. In the 30 days prior to the report, mother had received four days of outpatient counseling or AA/NA attendance. Mother began drinking alcohol when she was eight years old and started using methamphetamine a year later.
The social worker reported mother's unstable mental health negatively impacts her ability to meet the basic needs and safety of her children. Also, her substance abuse exacerbates her mental illness and symptoms, making it difficult for mother to properly care for the children as well as placing them at risk of serious physical harm.
Mother was provided supervised visitation with the children twice a week. Mother was consistent with visits and there were no concerns during her visits. Mother was referred to services for mental health counseling, psychotropic medication management, substance use disorder programming, and grief counseling. Mother expressed a desire to reunify with the children. Due to mother's chronic substance abuse problem, the department recommended services be denied mother pursuant to the bypass provision in subdivision (b)(13) of section 361.5. The department noted this was not mother's first dependency and she had resisted prior court-ordered treatment during a three-year period prior to this dependency.
In an addendum report filed on October 31, 2016, mother reported she was participating in substance abuse treatment and mental health counseling but failed to submit to the social worker documentation of her participation in these services. Mother described herself as drug free, but failed to drug test on September 12, 2016, and October 20, 2016. During a supervised visit with the children on August 10, 2016, mother began talking to herself and exhibited signs of paranoia because she thought a parade was about to start. No one was talking to mother and there were no signs of a parade. Mother refused to submit to a hair follicle examination. Mother mentioned she had been arrested under a different name. The social worker learned mother was arrested on July 30, 2016, for theft and entry into a commercial building.
On September 20, 2016, mother's ex-boyfriend and father of her youngest child allegedly hit his 15-year-old daughter in the face with the back of his hand and slammed her head into a door frame. Mother was involved in the incident, telling the girl she was going to "whoop her ass." Mother was witnessed smoking methamphetamine. Reporting witnesses recanted their description of the ex-boyfriend hitting his daughter and told investigators it was mother who hit her. Because mother had resumed taking methamphetamine, the social worker noted mother's continued resistance to treatment and concluded reunification services were not in the best interests of the children. At the conclusion of the disposition hearing that began on December 1, 2016, and concluded on December 15, 2016, the juvenile court denied mother reunification services pursuant to the bypass provisions in section 361.5, subdivision (b)(13).
Status Review Hearing
The status review report prepared in March 2017 indicated Reyna and A.R. were placed together in a foster home. Although A.R. was born prematurely, she was developmentally on track and healthy. Other than problems with her left eye that might require surgery, Reyna was also healthy. Reyna was also developmentally on track and had friends at school. Mother visited consistently and there were no concerns with her visits. The fathers were not involved in the case. Mother stated at the review hearing she had attended every weekly visit. The juvenile court scheduled a permanency planning hearing pursuant to section 366.26.
Section 388 Petition and Permanency Planning Hearing
Mother filed a petition pursuant to section 388 seeking to modify the juvenile court's prior orders concerning family reunification services. Mother stated she had completed a substance use disorder program on April 4, 2017, consistently attended AA/NA meetings, and maintained visitation with the children throughout the proceedings. A senior mental health case worker assigned to assist mother reported mother had been attending the program since March 3, 2016. Mother's progress was steady, her attendance good, she was cooperative, and she actively participated in her treatment. Mother stated her willingness to continue treatment on her own.
In its response to mother's petition, the department continued to recommend mother be bypassed for additional reunification services due to mother's extensive history of drug use and mental health issues. Between August 1998 and April 2015, the department investigated 18 referrals alleging abuse or neglect by mother. Seven of the referrals were substantiated. The department noted mother admitted on April 25, 2016, she could not guarantee things would be different this time with her ability to overcome substance abuse. Although mother recognized she has a substance abuse problem, she was not currently willing to participate in an inpatient treatment program, which was the recommended course of action with a substance abuse problem as serious as this one. The department argued mother's continued use of methamphetamine was evidence of her resistance to treatment. A drug test from a hair follicle sample on June 1, 2017, was positive for the presence of methamphetamine.
In a report from July 2017, the department noted mother had missed two weekly visits with her children. During more recent visits, mother was observed not having patience with her children and displaying a short temper. She called her two-year-old son a spoiled brat. In April 2017, the foster parent reported mother told the children they were going to be removed from their current placement to be with a relative. Reyna returned upset after the visit and a social worker assured her she was not being removed from the foster home. When the social worker told mother she should not be discussing placement changes with the children during visits, mother and other family members became verbally aggressive, yelling at the social worker in front of the children, which resulted in the end of the visit.
The social worker described Reyna as sweet and playful. She is developmentally on target for her age and is healthy. The social worker described A.R. as shy and reserved. She is overall a healthy child, although she has some behavioral and developmental concerns. Both children were considered adoptable. The care providers were interested in adopting both girls and their younger brother. The care providers could not imagine a life without Reyna and A.R. The girls had been with the current care providers since December 2016. Both girls had developed a healthy bond with their care providers, who were committed to a permanent plan of adoption. Both girls indicated they would be okay if they had to stop visits with mother. The social worker did not believe mother's relationship with the children was a parental relationship, and mother's relationship with the children did not outweigh their need for the stability and permanence of adoption.
The hearing on the section 388 petition and permanency planning was held on two sessions in September 2017. Mother testified she was still participating in her behavioral health program and her drug treatment program. The juvenile court admitted into evidence a certificate of mother's completion in her substance use disorder program dated March 27, 2017. The program included alcohol and other drugs classes. The program was six to eight months long. Mother learned about drug treatment and the reasons for drug abuse. Mother attended the program two times per week as well as attending NA sessions two to four times per week. Mother had participated in the program and NA since February 2016. Mother admitted she had a positive drug test on June 14, 2017, which she explained was due to her prior drug use of a few months before that date.
Mother explained she no longer spent time with people who used drugs but associated with sober support people. Mother also attended parenting classes and went to church. Mother said Madera County Behavioral Health interviewed her recently and determined she did not need mental health services. At the time of the hearing, mother was not taking psychotropic medications or antidepressants although she had previously taken these medications. The last time mother had been prescribed these medications was July the previous year.
Mother admitted she had chronic issues with substance abuse and mental illness. Mother asserted she had been "clean going on three and a half years."
Mother missed three visits since the case began: once due to being hospitalized for posttraumatic stress disorder after a tree fell on her home, once due to the bus breaking down, and once because the social worker called the wrong phone number to reschedule a visit. During the visits, mother would do arts and crafts with her children and talk about school. Mother participated in the healthy beginnings parenting class for about two months. Mother learned not to raise her voice at her children and how to give them choices so they felt like they had some control. Mother had over 100 visits with the children. Initially these visits were twice a week but were reduced to once a week due to the distance of the children's placement.
Mother said she had a strong bond with Reyna. All three children asked mother when they could come home. Mother described her relationship with the children as affectionate and explained they wanted to be hugged. If mother hugged one girl, the other wanted to be hugged as well.
Reyna testified she enjoyed visiting with mother and they played imaginary games together. Reyna wanted to live with mother and would be sad if she did not get to see her and her older siblings again. Although Reyna said she had happy memories of her former family life, she also said she wanted to stay with her foster family and visit her mother once a week.
Mother's adult daughter, M.G., testified mother shared a strong bond with M.G.'s younger sisters. M.G. explained the three younger children loved mother but were also doing well in the foster home. M.G. said the children were in a really good foster home with parent bonding. M.G. felt "like the kids are happy." All three children described mother as their "mom" and were affectionate with her. M.G. had seen Reyna tell mother about problems she had at school.
The juvenile court found mother had not shown changed circumstances and mother's requested changes in the court's earlier orders were not in the children's best interests. The court found the girls were adoptable and continued M.H.'s case. The court found the beneficial parent-child relationship did not apply to Reyna and A.R. and terminated mother's parental rights.
DISCUSSION
I. Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her section 388 petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist and that changing the order will serve the child's best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) The petitioner has the burden of proof by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) Courts liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Even so, section 388 requires a petitioner to make a prima facie showing of both elements to trigger an evidentiary hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) If, for instance, the parent makes a prima facie showing of changed circumstances, the juvenile court can still deny the petition without an evidentiary hearing if the parent fails to make a prima facie showing the relief sought would promote the child's best interests. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
In assessing the petition, the court may consider the entire history of the case. (In re Justice P., supra, 123 Cal.App.4th at p. 189.) We review the denial of a section 388 petition after an evidentiary hearing for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Where there is conflicting evidence, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529.)
The best interests of the child or children are of paramount consideration when, as here, a section 388 petition is brought after reunification services have been denied. (See In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child at this juncture, the juvenile court's focus is on the needs of the child for permanence and stability rather than the parent's interest in reunification. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The "'escape mechanism'" provided by section 388 after reunification efforts have ceased is only available when a parent has completed a reformation before parental rights have been terminated. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) This is because, if a parent's circumstances have not changed sufficiently to permit placement of the child with that parent, reopening reunification "does not promote stability for the child or the child's best interests" when the child is otherwise adoptable. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)
The juvenile court found mother's circumstances had not yet changed. Although mother contended she had been clean and sober for three and a half years, she had more than one relapse during the course of these proceedings. She also had multiple prior dependency cases based on her abuse of drugs. Mother's drug abuse occurred prior to her adulthood. Although mother acknowledged she had been prescribed medications by physicians in the past to treat her mental illness, she testified she was no longer taking medications. Without any corroborating evidence, mother asserted the county mental health services had told her she no longer needed to take medications.
Mother completed drug treatment programs in the past only to relapse and continue to abuse methamphetamine. Although the department wanted mother to complete an inpatient drug treatment program, she only completed an outpatient program and apparently continued to struggle with her addiction to methamphetamine. Mother's visits with the children were supervised and of limited duration. The juvenile court did not err in finding mother's circumstances had not changed.
Mother's inability to maintain sobriety showed she had made insufficient inroads into her persistent substance abuse problem and returning her children or resuming reunification services would be inappropriate. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081 [parents with extensive drug use history did not show changed circumstances where rehabilitation efforts were only three months old at time of § 366.26 hearing]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [seven months' sobriety does not constitute changed circumstance where parent has history of periods of sobriety and relapse]; In re Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9 ["It is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform"].)
Even if mother showed her circumstances were changing, this would be insufficient to form a basis for the juvenile court to grant her section 388 petition. (In re Casey D., supra, 70 Cal.App.4th at p. 49.) The juvenile court did not abuse its discretion in finding mother failed to show a genuine change in circumstances meriting a resumption of reunification services or placement of her children with her. Accordingly, we need not reach the issue of whether it was also in the children's best interests to grant mother reunification services.
II. Appellate Review of Beneficial Relationship Exception
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. The burden is on the parent to prove changed circumstances. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) If the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parent's burden to show termination would be detrimental under one of the exceptions. There is a strong preference for adoption. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
There is a split of authority concerning the standard of review in this context. Under any of these standards of review, the practical differences between them are insignificant because they all give deference to the juvenile court's judgment. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Evaluating the factual basis for the juvenile court's exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. We give broad deference to the judge. The reviewing court should interfere only if under all the evidence viewed most favorably in support of the trial court's action, it finds no judge could reasonably have made the order. (Ibid.)
To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences upholding the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) We view the evidence in the light most favorable to the trial court's judgment, contradicted or uncontradicted; and in assessing the evidence, appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the trial court's finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
Similarly, a substantial evidence challenge to the juvenile court's failure to find a beneficial parental relationship or a sibling relationship cannot succeed unless the undisputed facts establish the existence of those relationships since such a challenge amounts to a contention the "undisputed facts lead to only one conclusion." (In re I.W., supra, 180 Cal.App.4th at p. 1529; see In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
For the section 366.26, subdivision (c)(1)(B)(i) exception to apply, the relationship between parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile court balances the strength and quality of the natural parent-child relationship in a tenuous placement against the security and sense of belonging a new family would confer. If severing the natural parent-child relationship would deprive the child of a substantial and positive emotional attachment so that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Interactions between the natural parent and child will always confer some incidental benefit for the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, comfort, affection, and stimulation. The relationship arises from day-to-day interaction, companionship, and shared experiences. The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The factors to consider when testing whether a parental relationship is important and beneficial include the age of the child, the portion of the child's life in the parent's custody, the positive or negative effect of interaction between the parent and child, and the child's particular needs. The relationship must be such that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) Mother failed to show how the children would suffer detriment on the termination of her parental rights.
Mother's Showing of Beneficial Relationship
Mother argues her consistent and appropriate visitations with the children, coupled with the loving bond she has with the children, met the strong burden she bore to show applicability of the beneficial relationship exception. Mother argues there was evidence the children would benefit from continuing their relationship with her.
Mother views the evidence adduced at the hearing in the light most favorable to herself, not in the light most favorable to the juvenile court's factual findings and legal rulings. Mother's sobriety came into doubt more than once during the proceedings. Given mother's long involvement with drugs, the juvenile court had evidence before it that it was not beneficial for the children to go back into mother's custody. Mother did consistently visit the children. With the exception of mother and her adult children suggesting to the girls their custody status would change—something that occurred toward the end of the proceedings—most of mother's interactions with the children were appropriate.
The fact the visitations were still supervised is also a factor to be considered by the juvenile court. The visits were not only supervised throughout the 18-month reunification period, mother never had unsupervised visits with the children and did not have overnight stays with them. Mother's home remained an unfit place for the children to stay. The preference for permanency in the children's placement took precedence over reunification with mother.
The foster parents in this case cared for the children and provided a stable and nurturing home. They were willing to adopt all three children as a sibling group. Although Reyna especially remained close to mother, she and her siblings exhibited a child-parent bond with their foster parents. Mother's adult daughter acknowledged the foster parents provided the children with a positive and nurturing environment.
The factors to consider when testing whether a parental relationship is important and beneficial include the age of the child, the portion of the child's life in the parent's custody, the positive or negative effect of interaction between the parent and child, and the child's particular needs. The relationship must be such that the child would suffer detriment from its termination. (In re Angel B., supra, 97 Cal.App.4th at p. 467.) The two youngest children were both very young when they were detained and taken into foster care. Reyna was older, but had been a dependent of the court on prior occasions. The children were in need of a stable living situation unencumbered by mother's drug addiction and untreated mental illness.
Although mother maintained regular visitation and provided love to her children during those visits, she bore the burden of showing more than loving contact and pleasant visits. (In re I.Y.I. (2002) 101 Cal.App.4th 942, 953-954.) Day-to-day contact is not necessarily required, though it is typical. A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing the parent-child relationship during periods of visitation. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Mother needed to demonstrate she occupied a parental role in her children's lives resulting in a significant, positive, emotional attachment from child to parent. Here, there was little or no evidence mother occupied this crucial role in her children's lives. (In re I.Y.I., supra, at p. 954.)
Mother has failed to show detriment or harm if the parent-child relationship ended. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We agree with the department; there was insufficient evidence from mother demonstrating the benefits of maintaining the parent-child relationship would outweigh the benefits to the children of adoption.
DISPOSITION
The findings and orders of the juvenile court are affirmed.
/s/_________
PEÑA, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
ELLISON, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.