Opinion
A154809
12-19-2018
In re CONRAD J. et al., Persons Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. Nos. JUV84577, JUV84578)
At the conclusion of the Welfare and Institutions Code section 366.26 hearing (.26 hearing), the juvenile court denied A.A.'s (mother) section 388 petitions and terminated her parental rights. We affirm.
Statutory references are to the Welfare and Institutions Code. The children's respective fathers are not parties to the appeal. We provide a brief factual and procedural summary, reciting the evidence in the light most favorable to the lower court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
Detention Through 12-month Review
Mother has two children, Conrad, born in 2007, and M., born in 2010. In early August 2015, the San Mateo County Human Services Agency (Agency) filed petitions alleging the children came within section 300, subdivision (b). The amended petitions alleged mother called the police several times on an August evening, and reported hearing "noises from a locked room and was fearful of people in her home." The amended petitions also alleged mother had been placed on a "5150 hold" in April, and had tested positive for methamphetamine, cocaine, opiates, and benzodiazepine. The Agency alleged mother's "mental health and substance abuse issues" placed the children "at risk of harm and neglect." The detention report opined mother's psychiatric holds were the result of her untreated mental health issues, and her alcohol and drug abuse. The court detained the children and ordered supervised visitation.
The Agency's jurisdictional reports recommended the court declare the children dependents. Mother told the Agency she had been diagnosed with bipolar disorder but did not take prescribed medication. Instead, mother took other medication—such as clonazepam and oxycodone—"to balance her[self] out." In August 2015—after the section 300 petitions were filed—mother tested positive for benzodiazepines and hydromorphone. In November, mother submitted to the amended petitions and the court determined the children came within section 300, subdivision (b).
In August 2015, mother pled no contest to welfare fraud. In March 2016, mother was placed in jail for the conviction and for outstanding warrants. Upon reporting to jail, mother was cited for possessing a controlled substance. In May 2016, mother was convicted of driving with a suspended license.
The Agency's six- and 12-month review reports noted mother had entered an inpatient drug treatment program. She was "doing well" and taking "psychotropic medications." At the six- and 12-month review hearings, the court ordered additional reunification services. Mother completed the inpatient program in October 2016.
18-month Review
The Agency's 18-month review reports—filed in January and April 2017—recommended terminating reunification services and setting a .26 hearing. After completing the inpatient program, mother resumed drinking alcohol and ingesting cocaine. From November 2016 to January 2017, mother repeatedly tested positive for cocaine, including on days she visited the children. Mother also tested positive for methamphetamine and amphetamine. Mother initially claimed cold medicine and antibiotics triggered the positive test results, but later acknowledged her substance abuse issues were "more significant" than she had previously disclosed, and she admitted a "long standing" cocaine addiction. Mother enrolled in an outpatient drug treatment program but her drug tests were "administratively dirty."
The Agency did not believe mother could reunify with the children within the statutory time frame because she "continu[ed] to use alcohol and [c]ocaine, which . . . impacts the effectiveness of her psychiatric medications[.]" According to the Agency, mother lacked "insight into the factors behind her continued" drug use, "did not take her recovery seriously," and had "been unable to stay clean and sober." At the 18-month review hearing in April 2017, the court terminated reunification services and set the .26 hearing. It concluded mother had made "[m]inimal" progress addressing the causes necessitating the children's placement. .26 Hearing Reports and Mother's Section 388 Petition
In August 2017, the Agency submitted a .26 hearing report recommending terminating parental rights. In a December addendum, the Agency opined mother seemed to be using drugs because she was "confused" and "sweating" during visits, "when no one else . . . [was] sweating." Mother told the Agency she had been sober since April 2017, and that she had been attending an outpatient drug treatment program.
In December 2017, mother filed two section 388 petitions (form JV-180) requesting the court reinstate reunification services. Mother alleged she was working, was receiving psychological treatment, and was attending Narcotics Anonymous (NA) meetings. According to the petitions, the children asked when they could return home. The petitions attached several documents, including mother's declaration stating she had been sober since June 2016, and a letter from mother's therapist regarding her "engagement in services." In opposition, the Agency argued returning the children to mother was not in their best interest. The Agency argued mother's participation in therapy and her NA attendance did not guarantee she would remain sober because mother had received similar services and had continued to abuse drugs and alcohol. According to the Agency, "mother's history" suggested "a high probability of relapse." Finally, the Agency opined terminating parental rights "will have no impact on the children as they are in a placement that is giving them the stability that they have lacked for most of their lives and will allow them to grow and flourish into healthy adults."
In March 2018, mother was "picked up" on a warrant for driving with a suspended license, and the court continued the .26 hearing. An addendum report described mother's March 2018 unannounced visit to the Agency's office, where mother seemed intoxicated—she had trouble keeping her eyes open and was sluggish and distracted. Mother provided the Agency with a report stating she had been diagnosed with methamphetamine abuse in remission, substance abuse psychotic disorder, anxiety, depression, insomnia, and symptoms of post-traumatic stress disorder. She also provided documentation showing she had enrolled in an outpatient drug treatment program in February, and was attending parenting classes.
The Agency commended "mother for her recent efforts to address her ongoing substance abuse issues and mental health concerns," but had "serious concerns about the safety of the children if they were returned to [her] care." According to the Agency, "mother has participated in and completed substance abuse programs, without maintaining her sobriety for long. The Agency's concern, given . . . mother's new diagnoses, and her possible continued use of substances, are greater now than . . . when this case opened." The Agency did not "believe it would be in the best interests of the children and their safety to return them" to mother. In April 2018, mother was arrested for violating probation, and the court continued the .26 hearing. Mother did not complete the outpatient drug program. Combined Section 388 and .26 Hearing
The court held the combined section 388 and .26 hearing in May 2018. At the section 388 hearing, mother testified that in the previous 13 months, she had been seeing a therapist and psychiatrist. She had been diagnosed with "severe depression, severe anxiety, PTSD, ADHD, and insomnia," and was taking prescribed medication. The medication's side effects included drowsiness and "feeling spacey," making it appear mother had been drinking alcohol. Mother was attending an outpatient drug treatment program, and had been attending Alcoholics Anonymous and NA meetings. Mother had a support system to help her maintain sobriety, and had been employed full time since August 2017.
Mother began using drugs at 19. When she was 25, her drug use escalated and the children "got taken away." Mother denied being diagnosed with historic methamphetamine abuse, but acknowledged receiving drug abuse treatment, and relapsing after completing an inpatient program. Mother had been sober since April 2017. She wanted to reunify with the children. After hearing argument from counsel, the court denied mother's section 388 petitions. It determined it was not in the children's best interest to offer mother additional reunification services.
At the .26 hearing, the social worker testified the children loved mother. Maternal grandmother testified the children missed mother and asked when they could see her again. Mother testified she visited the children once per month for one hour. Counsel for mother urged the court to apply the beneficial relationship exception, arguing it would be detrimental to sever parental rights because mother and the children shared a "close and emotional relationship." The court terminated parental rights. As to the beneficial relationship exception, the court noted it was "not even close."
DISCUSSION
I.
No Abuse of Discretion in Denying Mother's Section 388 Petitions
Mother contends the court abused its discretion in denying her section 388 petitions. "Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden to show, by a preponderance of the evidence, there is a change of circumstances or new evidence, and the proposed modification is in the child's best interests." (In re A.S. (2009) 180 Cal.App.4th 351, 357-358.) We review the denial of the petitions for abuse of discretion. We will not disturb the court's decision unless it "exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (Id. at p. 358.)
A parent seeking relief under section 388 "must show changed, not changing, circumstances. [Citation.] The change of circumstances or new evidence 'must be of such significant nature that it requires a setting aside or modification of the challenged prior order.' " (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) "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 . . . the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Mother's newfound sobriety, while commendable, was evidence of changing—not changed—circumstances. Mother had been using drugs since she was a teenager. She had completed treatment programs, only to relapse and continue to abuse alcohol and drugs. She misled the Agency about the extent of her addiction until January 2017, more than 17 months after the children were detained. And when mother finally disclosed the extent of her drug abuse, she was not forthright about her sobriety—she claimed she was sober beginning in June 2016, but she tested positive for alcohol, cocaine, methamphetamine and amphetamine in late 2016 and early 2017. On another occasion, mother claimed she was sober beginning in April 2017, but she appeared intoxicated in early 2018.
Mother contends "her circumstances had already changed" because she was "in recovery." We disagree. In view of mother's history of remaining clean for limited periods following formal treatment, the court could reasonably conclude mother would be unable to maintain sobriety, i.e., that her most recent efforts to remain sober would prove no more effective than her previous ones. (See In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [parent's sobriety reflected " 'changing,' " not changed, circumstances where parent had a history of drug relapses and was in the early stages of recovery]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 [in context of a long history of substance abuse that included periods of sobriety and periods of relapse, father's seven months of sobriety, "while commendable, was nothing new"].)
Nor did mother establish additional reunification services were in the children's best interest. Mother received over 20 months of reunification services. Mother "had many opportunities to gain control of her life and thereby maintain custody of her children. [Their] futures should not be sacrificed to give her another chance to try to get and stay sober. The court was well within its discretion when it decided another stab at reunification was contrary to the [children's] best interests." (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73; In re Edward H. (1996) 43 Cal.App.4th 584, 594.)
We conclude the court did not abuse its discretion by denying mother's section 388 petitions. (In re Mickel O., supra, 197 Cal.App.4th at pp. 616-617.)
II.
The Beneficial Relationship Exception Does Not Apply
Mother argues the court erred by declining to apply the beneficial parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). To establish this exception, mother must demonstrate she "maintained regular visitation and contact" with the children and that the children "would benefit from continuing the relationship" with her. (§ 366.26, subd. (c)(1)(B)(i).) As mother recognizes, the beneficial relationship exception "may be the most unsuccessfully litigated issue in the history of law. . . . [I]t is almost always a loser." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) We review the "court's order on the beneficial-relationship exception for substantial evidence" but would reach the same result applying the abuse of discretion standard of review. (In re G.B. (2014) 227 Cal.App.4th 1147, 1166 & fn. 7.)
Even if we assume for the sake of argument mother's visitation was regular, she cannot establish severing the parent-child relationship would deprive the children of a substantial, positive emotional attachment. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) To trigger application of the parental relationship exception, the parent must prove that "severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (Id. at p. 466.)
Substantial evidence supports the court's conclusion that it was not a "close" case with respect to the beneficial relationship exception. The children's lives were "very chaotic" because of mother's struggles "with drug/alcohol and mental health issues" and the Agency opined terminating parental rights "will have no impact on the children as they are in a placement that is giving them the stability that they have lacked for most of their lives and will allow them to grow and flourish into healthy adults." "The evidence from the [Agency] provided substantial evidence to support the court's conclusion that no beneficial parent-child relationship existed such that termination of parental rights would be detrimental to [the children]." (In re Casey D., supra, 70 Cal.App.4th at p. 53.) Mother's loving relationship with the children does not "outweigh the well-being they would gain in a permanent home" (In re Noah G. (2016) 247 Cal.App.4th 1292, 1301), and her reliance on her own testimony at the combined section 388 and .26 hearing does not alter our conclusion. We are not persuaded by mother's effort to distinguish numerous cases upholding the trial court's refusal to apply the beneficial relationship exception. (See, e.g. In re Noah G., at p. 1304.)
Viewing the evidence in a light most favorable to the judgment, we conclude the court did not err by declining to apply the beneficial relationship exception. (In re G.B., supra, 227 Cal.App.4th at p. 1166; In re C.F. (2011) 193 Cal.App.4th 549, 555-556.)
DISPOSITION
The orders denying the section 388 petitions and terminating parental rights are affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------