Opinion
E068570
11-16-2017
In re J.K., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. K.K., Defendant and Appellant.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1401257) OPINION APPEAL from the Superior Court of Riverside County. Jaqueline C. Jackson, Judge. Affirmed. Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Appellant K.K. (mother) appeals from the juvenile court's denial of her Welfare and Institutions Code section 388 petition regarding her child, J.K. She also claims that the beneficial parental relationship exception applied. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On December 2, 2014, the Riverside County Department of Public Social Services (DPSS) filed a section 300 petition on behalf of the child, who was only a few days old at that time. The petition alleged that the child came within section 300, subdivisions (b) (failure to protect), and (g) (no provision for support). The petition included the allegations that mother abused controlled substances and tested positive for amphetamines and marijuana when she gave birth to the child. It also alleged that she admitted to using controlled substances throughout the pregnancy and received no prenatal care, which resulted in the child being born at a low birth weight and having withdrawal symptoms. The petition further alleged that mother had a criminal history, she was currently on parole/probation, there was an active warrant for her arrest, and she was homeless.
The petition also contained allegations regarding the child's father, who is not a party to this appeal. --------
The social worker filed a detention report that stated DPSS received a referral alleging general neglect. Mother gave birth to the child, and he weighed 4 pounds and 13 ounces. Mother tested positive for amphetamines and marijuana, and she admitted to using methamphetamine throughout her pregnancy. Mother told the social worker she started using methamphetamine when she was a teenager (she was approximately 27 years old at the time), and the last time she used was two days prior. She said she had participated in many treatment programs. The social worker called the maternal grandfather, who said he had not been around his daughter for about seven years because of her drug history. He said she detoxified numerous times, only to return to the streets within days or weeks. The maternal grandmother said mother had been using drugs since she was 13 years old. She said it was impossible to talk to mother without her "flipping out," she had a reckless lifestyle and could not keep a job, and she earned a living "doing private stripping parties." Mother also routinely threatened to kill herself.
The court held a detention hearing on December 3, 2014, and detained the child in foster care.
The social worker filed a first amended section 300 petition on December 23, 2014, and a second amended petition on January 7, 2015. The second amended petition deleted the allegation that mother was homeless, but retained the other allegations from the original petition.
Jurisdiction/disposition Report and Hearing
The social worker filed a jurisdiction/disposition report on January 8, 2015, recommending that the court declare the child a dependent and that reunification services be provided to mother. The social worker reported that the child was released from the hospital on December 9, 2014, and placed in a foster home. The social worker interviewed mother, who said she smoked methamphetamine and marijuana the day before the child was born, and that she used randomly earlier that month. She said she was residing with her grandmother and was able to provide for the child. Mother said her criminal history included possession of controlled substances, shoplifting, defrauding property of another, and taking a vehicle without consent. She was ordered to complete an 18-month substance abuse program, but failed to comply, and she was on formal probation until July 2016.
The court held a jurisdiction/disposition hearing on January 21, 2015. The court found that the child came within section 300, subdivision (b), and declared him a dependent of the court. The court ordered reunification services for mother.
Six-month Status Review
The social worker filed a six-month status review report on July 9, 2015, recommending that mother continue to be offered family maintenance services. The social worker reported that, on June 2, 2015, the child was returned to mother's care, following a team decision making meeting on May 20, 2015. Mother had completed all her case plan services, secured stable housing, and provided documentation that she was enrolled in MFI outpatient treatment.
The social worker further reported that the child was first placed in a foster home on December 9, 2014; however, due to the foster mother's mental health issues, he was moved to a second foster home on February 13, 2015. The foster parents in the second home had become close friends and mentors to mother, and supported her efforts to reunify. During the time the child was in foster care, mother visited two to four times a week. The visits progressed to full day and overnight visits. The foster parents reported that the visits always went well.
The court held a six-month review hearing on July 21, 2015. It continued the child as a dependent and continued family maintenance services.
Section 364 Review
The social worker filed a section 364 family maintenance status review report on December 23, 2015. The social worker reported that in July 2015, mother and the child moved in with close family friends, Mr. and Mrs. C. On August 16, 2015, Mr. C. contacted DPSS to report that mother had not been at the house for days. She had been hanging out with people in her drug class, and had been sneaking out of her window and returning home late at night, sometimes with the child. Mother got angry about paying her share of the rent and food, so Mr. C. said he wanted her out of his home as soon as possible. The next day, mother told the social worker she wanted to move out, and she said the previous foster parents were open to having her live with them. She then went to live with the previous foster parents, Mr. and Mrs. A. However, on September 16, 2015, Mr. A. contacted the social worker and said mother had been leaving the child, sneaking out of the window at night, and returning in the morning. The next day, Mr. A. reported that mother sent a man to his home to pick up her things; she was moving out with this man she recently met. The social worker called mother's cell phone and left messages. Mother called her on September 22, 2015, and said she was now living with her new boyfriend. The social worker said the new home had to be evaluated first. Mother agreed to go through the proper procedure, but her new boyfriend did not make himself available to go through the Live Scan process or have his home evaluated. Mother subsequently informed the social worker that she moved back in with Mr. and Mrs. A.
On December 10, 2015, mother asked the social worker if she could move in with her grandmother, since she felt she needed to be with family.
The court held a section 364 review hearing on February 17, 2016. It continued the child as a dependent and continued family maintenance services.
Section 387
On May 26, 2016, the social worker filed a section 387 supplemental petition, alleging that the previous disposition had not been effective in the protection of the child, since mother had failed to participate in her court-ordered plan, and she failed to make the child available to DPSS. The social worker reported that the whereabouts of mother and the child were unknown. The social worker opined that mother's transient lifestyle, which was rooted in drugs, caused her to engage in activities that put the child at risk of harm. Mother had difficulty caring for herself and had lost the support of all her family members. Family members described her as unstable and believed she had unaddressed mental health issues.
The court received an addendum report from the social worker and held a hearing on May 27, 2016. The social worker reported that the child was returned to mother's care on family maintenance almost one year ago. Since then, she had not followed through with completing her case plan objectives; she did not have stable housing or employment; and she had not made herself available to DPSS for the last four weeks, and her whereabouts were unknown. However, the social worker located mother on May 26, 2016, and she tested positive for methamphetamine. At first, she denied that she used, but after being confronted, she admitted to using two days prior. She said she used because she was feeling overwhelmed. Mother was living in her friend's apartment and had little food and clothing for herself and the child. Mother said she was working part time at $10 per hour, but she was unable to state an exact number of hours she was working. She also received some government aid. The social worker was concerned because mother continued to struggle with her addiction, despite going through several different programs. Mother had not benefitted from the services provided to her and continued to make poor life choices. The court detained the child from mother.
The social worker filed a jurisdiction/disposition report on June 27, 2016. The social worker reported that mother was initially provided with six months of reunification services and completed an inpatient substance abuse program. She was then provided with outpatient services and the SafeCare program, after the child was returned to her care in July 2015. The SafeCare program was a program where a public health nurse visited her on a weekly basis to observe and provide feedback. Mother failed to complete the program when she decided to take the child and leave the foster parents, without notifying DPSS. She then admitted that she failed to maintain her sobriety. The social worker reported that mother was having supervised visits twice a week. The visits went well, but mother was not always on time, and she missed her visits the past two Sundays.
The social worker recommended that the court deny reunification services. The social worker stated that mother had demonstrated she had not benefitted from the 18 months of services that were provided to her. Moreover, due to the length of time services had been provided and the serious nature of her drug addiction, the social worker opined that mother would likely fail to benefit from any future services. The social worker was also concerned about mother's living situation, since she was living in an apartment owned by her employer; thus, if she lost her job, she would be homeless, without financial support.
The court sustained the section 387 petition on July 27, 2016. At a contested disposition hearing on August 29, 2016, the court removed the child from mother's custody, denied her services since she had exceeded the statutory timeline for services, and set a section 366.26 hearing.
Sections 366.26 and 388
The social worker filed a section 366.26 report on December 16, 2016, recommending that the child continue to be a dependent, and that the section 366.26 hearing be continued for 120 days. The current caregivers, Mr. and Mrs. A., were willing to adopt the child, and DPSS needed more time to prepare the adoption assessment. The social worker reported that her last contact with mother was on September 26, 2016, when mother informed her that she would be going into a sober living facility on November 1, 2016. As to visitation, the social worker reported that mother's visits were not consistent. Mother was not always on time, and she had missed many visits, sometimes weeks at a time. Mother was reportedly very emotional at visits. The court continued the matter to complete the adoption assessment.
The social worker filed an addendum report with the adoption assessment on April 24, 2017. The social worker reported that the child had most recently been placed with the prospective adoptive parents since February 24, 2016, although he was previously in their care. The prospective adoptive parents reported that they were emotionally close to the child, never saw him as a foster child, and always treated him as their own. They were meeting his emotional, physical, and educational needs, and they wanted him to be a permanent member of their family. They were committed to providing a healthy, stable home environment for the child, until he reached adulthood. They were willing to maintain minimal contact with mother and monitor her visits, as long as they were appropriate.
On May 26, 2017, mother filed a section 388 petition, requesting that the court extend services for six months and transition the child back into her care. Mother alleged that she completed an inpatient substance abuse treatment program, consistently tested negative for drugs, obtained employment, attended 12-step meetings, and maintained positive visitations. She further alleged that she had demonstrated her commitment in the past and successfully reunified with the child in July 2015. She had support from the current caregivers at that time, she now had community/family support and a job. Mother further alleged that she was sober, she shared a strong bond with the child, and she was committed to being a nurturing parent. She attached documentation in support of her petition, including a letter acknowledging her completion of the MFI Residential Treatment Program on August 29, 2016, negative drug test results, one pay stub, and certificates of completion for various courses at the MFI Recovery Program.
After one continuance, the court held a contested, combined hearing pursuant to sections 388 and 366.26 on May 31, 2017. Mother was not present, but was represented by counsel. County counsel recommended that the court deny the section 388 motion, as it would not in the best interest of the child to grant it. Counsel for the child agreed. Mother's counsel then presented mother's stipulated testimony that she had maintained consistent visitation since reunification services were terminated in 2016, and that at visits the child played with Legos and pretended to drive her car, and they jumped on the trampoline, ate, and cuddled together. Counsel further stated that mother was aware of the child's medical needs and provided breathing treatments at visits, she had a bond with the child, and he called her "mom." Mother also claimed sobriety, employment, and a stable living environment.
Counsel for the child argued that it was not in the child's best interest to grant the section 388 petition. The child was approximately two years old and had only lived with mother for less than one year. The child's counsel argued that mother's only stability was when she and the child lived with the prospective adoptive parents. Moreover, mother's current visits with the child were simply play dates. County counsel joined with the child's counsel and added that mother had a long history of substance abuse, including a possession conviction in 2009. Even after the child was detained, mother continued to abuse methamphetamine, and she tested positive on August 30, 2016. DPSS was concerned about her ability to maintain sobriety, since she had relapsed on numerous occasions. Furthermore, the child needed permanency, and it would not be in his interest to offer mother another six months of services.
The court noted that it saw mother the day before, and she looked a lot better. The court commended her efforts to gain sobriety as admirable and found that her circumstances had changed. However, the court said it was struggling with what was in the child's best interest. The court noted that the child had been out of mother's care for a long time, and she was recently visiting consistently; however, her visits were previously inconsistent, and at one point, the court had to do a parent locator to find her. The court considered the child's young age and noted that he had been in his stable placement for one year. It then found that it was not in the child's best interest to grant the section 388 petition and thus denied it.
Mother's counsel next argued that the beneficial parental relationship exception applied, but the court did not think it outweighed the preference for adoption. The court further found it likely that the child would be adopted. It then found a sufficient basis for terminating parental rights, based on the findings at the section 387 hearing that reunification services could not be provided to mother since her statutory time to reunify had expired. The court terminated parental rights, and set adoption as the permanent plan.
ANALYSIS
I. The Court Properly Denied Mother's Section 388 Petition
Mother argues that the juvenile court erred in denying her section 388 petition, since the evidence showed a change of circumstances and that it was in the child's best interest to grant the petition. She claims that since the evidence she presented was uncontroverted and unimpeached, the court erred as a matter of law in denying her petition. We conclude that the court properly denied mother's petition.
A. Standard of Review
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 or changed circumstances exist, and (2) the proposed change would promote the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 316-317 (Stephanie M.).) A section 388 petition is addressed to the sound discretion of the juvenile court, and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (Id. at p. 318.) " ' "The appropriate test for abuse of discretion is whether the trial court 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." ' " (Id. at pp. 318-319.) "After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interest of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Id. at P. 317.)
We note mother's initial assertion that, because her evidence was uncontradicted and unimpeached and "could not be held insufficient to support [her] section 388 petition, the court erred as a matter of law in denying her petition." She claims that the standard of review is whether the evidence compels a finding in favor of the appellant as a matter of law, since this is a situation where "a party who has the burden of proof on an issue . . . challenges a finding which reflects the trier of facts rejection of that party's evidence." She relies upon In re I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.), in support of this claim; however, I.W. is simply inapposite since it did not involve a section 388 petition. (Id. at pp. 1527-1528 [the court discussed the standard of review in the context of the mother's contention that she had presented sufficient evidence to show the beneficial parental exception applied].) It is well-settled that the abuse of discretion standard of review applies to a section 388 petition. (Stephanie M., supra, 7 Cal.4th at p. 318.)
To the extent mother is arguing that the abuse of discretion standard did not apply because respondent did not present any evidence at the section 388 hearing, we note that the petitioner has the burden of proof at a section 388 hearing. (Stephanie M., supra, 7 Cal.4th at p. 317.) We further note that the court had read and considered the social worker's reports throughout the dependency and was, thus, familiar with the record and mother's history.
B. The Court Did Not Abuse its Discretion
The juvenile court here did not abuse its discretion in denying mother's section 388 petition, as she failed to show that a changed order would be in the child's best interest. As to changed circumstances, she alleged that, since the court terminated her reunification services on August 29, 2016, she had successfully completed her inpatient treatment program, consistently tested negative for drugs, obtained employment, attended 12-step meetings, and maintained positive visits. The court commended her efforts to gain sobriety as admirable and found that her circumstances had changed.
However, the court found that mother had failed to demonstrate that a changed order was in the best interest of the child. "[A] primary consideration in determining the child's best interests is the goal of assuring stability and continuity." (Stephanie M., supra, 7 Cal.4th at p. 317.) As to best interest, mother alleged that she had previously demonstrated her commitment to interventions and successfully reunified with the child in July 2015. She noted that she had the prospective adoptive parents' support then and was living in their home during her family maintenance period. Mother alleged that she currently had employment and community/family support, that she was sober and was committed to being a nurturing parent, and she had a strong bond with the child. Mother clearly failed to show how it would be in her child's best interest to provide her with more reunification services, since she had not benefitted from her previous services. She was originally provided with reunification services, which included parenting education and a substance abuse program and testing. The court returned the child to her custody on family maintenance. However, the court detained the child a second time, pursuant to section 387, on May 27, 2016. The record showed that mother tested positive for methamphetamine on May 26, 2016. She admitted that she had used two days prior. Furthermore, the record showed that she was only working part time, and she was living in her friend's apartment. Moreover, as the court noted, mother's visits were not consistent. She was not always on time, and she had missed many visits, sometimes weeks at a time. We also note that the record showed mother had been using drugs since she was 13 years old, had been through numerous programs, but always relapsed. She also had difficulty keeping a job, and she had lost all family support.
Furthermore, as the court indicated when it denied her services at the disposition hearing on August 29, 2016, mother had exceeded the statutory timeline for services. "[E]xcept in limited circumstances, a parent is entitled to 12 months of reunification services, with a possibility of 6 additional months, when a child is removed from a parent's custody." (In re Marilyn H. (1993) 5 Cal.4th 295, 308 (Marilyn H.); see § 361.5.) For a child who, on the date of initial removal from the physical custody of his parent, was under the age of three, court-ordered services shall be provided for a period of six months from the dispositional hearing, but no longer than 12 months from the date the child entered foster care. (§ 361.5, subd. (a)(1)(B).) Here, the child entered foster care on December 3, 2014.
Notwithstanding the statutory timeline, and in view of the circumstances, it is difficult to see how providing mother with more services, with the ultimate goal of returning the child to her custody, would be in his best interest.
On appeal, mother essentially ignores the Supreme Court's language in Stephanie M., supra, 7 Cal.4th 295 and instead urges this court to apply factors delineated by the appellate court in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.). Those factors are: the seriousness of the problem leading to dependency and the reason that problem was not overcome; the strength of relative bonds between the dependent children to both parent and caretakers; the degree to which the problem may be easily removed or ameliorated; and the degree to which it actually has been. (Id. at p. 532.) Mother claims that her substance abuse problem "has been addressed and ameliorated." She also asserts that the child had a strong bond with both mother and his caretakers. In her reply brief, mother makes a convoluted argument to distinguish Stephanie M. from Kimberly F., and contends that respondent mistakenly was "overemphasizing the benefits to a child of remaining in a stable foster home placement." She concludes that "a reasonable application of the interest of mother, the interest of the child, the significance of mother's changes, and the child's best interest require reversal of the [court's denial of the petition.]" We decline to apply the Kimberly F. factors since they do not take into account the Supreme Court's analysis in Stephanie M., supra, 7 Cal.4th 295 applicable after reunification efforts have terminated. (See In re J.C. (2014) 226 Cal.App.4th 503, 527.) Instead, we "follow the direction of our Supreme Court, holding that after reunification services have terminated, a parent's petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (Ibid.) It is in the child's best interest not to further delay permanency and stability. Moreover, contrary to mother's apparent belief, her interests are simply no longer the focus. (See ibid.)
Mother also argues that she was prejudiced by the court's failure to require DPSS to investigate her petition and prepare a social study, pursuant to California Rules of Court, rule 5.570 (rule 5.570). Rule 5.570 provides that a hearing under section 388 must be conducted as a dispositional hearing under California Rules of Court, rules 5.690 and 5.695 if "the request is for termination of court-ordered reunification services," or "there is a due process right to confront and cross-examine witnesses." (Rule 5.570, subd. (h)(2).) California Rules of Court, rule 5.690 provides that the social services agency must prepare a social study of the child. However, as respondent points out, the section 388 petition hearing did not need to be conducted as a dispositional hearing, since the petition did not involve a request for the termination of reunification services. Moreover, mother does not claim there was a due process right to confront and cross-examine witnesses. (Rule 5.570, subd. (h)(2).) In her reply brief, she asserts that she "discussed [in her opening brief] the manner in which section 388 provides due process protection for parents." However, there was no mention of a right to confront and cross-examine witnesses.
We acknowledge mother's additional claims that county counsel's argument at the hearing included factual errors, that the court struggled with the best interest prong, and that the court decision denied her the opportunity to show she was, in fact, a fit parent. However, we ultimately conclude that the court carefully evaluated the evidence, determined that mother had not carried her burden of proof, and properly denied her section 388 petition. There was no abuse of discretion.
II. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). We find no error.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The phrase "benefit from continuing the relationship" refers to a parent/child relationship that "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 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. 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent's burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
In support of her position, mother asserts that she complied with her case plan, she was stable and had a job, she had "good visits" during which she played with the child, shared food with him, and they jumped on the trampoline together. Furthermore, she "proved" her relationship was important to the child, he knew she was his mother, and he called her "mom."
First, the beneficial parental relationship did not apply because mother failed to maintain regular visitation, as required. (§ 366.26, subd. (c)(1)(B)(i).) The record shows that her visits were inconsistent. She was not always on time, and she had missed many visits, sometimes weeks at a time. Second, mother's interactions with the child do not even begin to demonstrate that her relationship with him promoted his well-being "to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) She has not proffered any evidence to support a finding that the child had a "substantial, positive emotional attachment [with her] such that [he] would be greatly harmed" if the relationships were severed. (Ibid.)
We further note that the child was thriving in his prospective adoptive home. The prospective adoptive parents were emotionally close to the child, never saw him as a foster child, and always treated him as their own. They were meeting his emotional, physical, and educational needs, and they wanted him to be a permanent member of their family. They were committed to providing him with a healthy, stable home environment, and they were also willing to maintain contact with mother, as long as the visits were appropriate.
We conclude that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(1), did not apply here.
DISPOSITION
The court's orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.