Opinion
E075305
12-14-2020
In re B.M., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. P.P. et al., Defendants and Appellants.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant P.P. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant W.M. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ117652) OPINION APPEAL from the Superior Court of Riverside County. Matthew Perantoni, Judge. Affirmed in part, dismissed in part. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant P.P. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant W.M. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
P.P. (mother) filed a petition under Welfare and Institutions Code section 388 (unlabeled statutory references are to this code) asking the juvenile court either to return her minor son to her custody with family maintenance services or to order reunification services for her. The court denied the petition and then terminated parental rights, freeing the minor for adoption. (§ 366.26.) Mother appeals from the order denying her section 388 petition and the order terminating her parental rights. W.M. (father) joins mother's appeal and argues that in the event we reinstate mother's parental rights we should reinstate his parental rights too. We affirm.
BACKGROUND
In 2009, four of mother's children were detained from her custody and the custody of their father (not W.M.) because of substance abuse issues and the parents' inability to protect the children from harm. Reunification services were provided to mother but ultimately terminated. In 2011, the court ordered legal guardianship and terminated dependency for the children.
In January and December 2011, mother and father (collectively, parents) had two children together. Both children were detained, one of them because of substance abuse issues. The reason for the second child's detention is not reflected in the record on appeal. Reunification services were denied to parents, parents' rights were terminated, and adoption was ordered as the permanent plan for both children.
The present case began in October 2019. The day after B.M. was born, the Riverside County Department of Public Social Services (the Department) received a referral for general neglect alleging mother and B.M. both tested positive for amphetamine and mother also tested positive for marijuana. Although B.M. did not immediately show signs of withdrawal, he started displaying various withdrawal symptoms that afternoon and was taken to the neonatal intensive care unit for monitoring.
When the social worker arrived at the hospital, B.M. was lying in a bassinet at the nurse's station. He had been there all day because mother had told the hospital's social worker to take him out of mother's room. Earlier that morning, a nurse found B.M. lying at the foot of mother's bed, not in the bassinet, and mother was not feeding, bonding, or engaging with him.
When mother spoke with the Department's social worker, mother explained that she did not want B.M. returned to her room because the Department would be "'taking him anyway.'" Mother, who was 36 years old, said her drug of choice was methamphetamine, which she started using when she was 17 years old. Father was arrested several days before B.M. was born as a result of drugs being found in the residence he shared with mother, so father was incarcerated when B.M. was born.
Several days after B.M.'s birth, a juvenile dependency petition was filed, alleging under subdivision (b)(1) of section 300 that B.M. was at substantial risk of harm because of mother's positive test for amphetamine and marijuana at B.M.'s birth, mother's and father's drug use, mother's and father's criminal histories, and mother's and father's failure to reunify with their other children. The petition further alleged under subdivision (g) of section 300 that father was unable to provide for B.M. because of father's incarceration. B.M. was ordered detained. He was placed with a foster family on October 15, 2019, three days after he was born. The court ordered twice-weekly supervised visitation for parents.
A scheduled visit with mother on October 30, 2019, was cancelled because she admitted to being under the influence of methamphetamine and marijuana. She refused to submit to a drug test. One week later, the Department filed an amended petition. At the jurisdiction hearing the next week, the juvenile court sustained the allegations under subdivisions (b)(1) and (g) of section 300 in the amended petition as to father and under subdivision (b)(1) as to mother.
On November 20, 2019, mother entered a residential substance abuse treatment program. She participated in groups and activities involving relapse prevention, parenting, life skills, and anger management. She attended meetings of Alcoholics Anonymous (AA) and Narcotics Anonymous (NA).
At a contested disposition hearing the following month, the court removed B.M. from parents and ordered reunification services bypassed for mother under subdivisions (b)(10), (11), and (13) of section 361.5. Reunification services also were bypassed for father. The juvenile court scheduled a hearing to select and implement a permanent plan (section 366.26 hearing). The court ordered that mother could have a minimum of once monthly supervised visits with B.M.
In the months of January, February, and March 2020, mother attended one two-hour supervised visit with B.M. All the visits were reported to be appropriate; the first two visits were reported to have gone well; and, the second visit was also described as being "positive." Mother engaged with B.M. by holding him, talking to him, and making eye contact.
Father entered a residential substance abuse treatment program in February 2020. Father never met B.M. Father's first visit with B.M. was scheduled on the same day as the selection and implementation hearing.
Throughout the proceedings, B.M. remained with the family with whom he was placed when he was three days old. B.M. had adjusted positively to the placement and developed a "strong bond" with his caregivers. He was healthy and thriving in the "stable and loving environment." The caregivers reported "lov[ing] [B.M.] very much" and were committed to continuing to care for B.M. and eager to adopt him. In May 2020, the court granted the caregivers' request to become B.M.'s de facto parents.
In June 2020, when B.M. was eighth months old, mother filed a section 388 petition, seeking to have B.M. placed in her care with family maintenance services or to be provided six months of reunification services. Mother alleged that those orders would be in B.M.'s best interest because she and B.M. had "a bond based on [her] regular and consistent" visits with him. In support of her petition, mother alleged that she had completed a residential treatment program, an 11-week parenting class, and an anger management program. She also alleged that she had attended over 50 meetings of AA and NA from December 2019 through mid-March 2020. Mother completed the residential treatment program and anger management program in February 2020. She was awarded "Head of House" in the residential treatment program for being an "[o]utstanding CORE member." In a letter dated May 7, 2020, a counselor from an outpatient recovery program indicated that mother had attended eight individual counseling sessions and had not yet completed the three- to six-month program. Mother tested negative for all substances in the two drug tests she took through the program, and the counselor reported that mother would "continue to be randomly tested throughout her treatment episode."
The juvenile court denied mother's section 388 petition. The court noted that mother's circumstances appeared to be "changing" but were not "changed" and that granting the petition was not in B.M.'s best interest. The court explained instead that "[i]t [was] very clear that it is in the best interest of the child to remain in the current stable home; the only home the child has ever known."
Father also filed a section 388 petition, claiming that his circumstances had changed because he was admitted into a residential treatment program and asking the court to order reunification services for him. The juvenile court denied father's petition too. Although father's notice of appeal states that he is appealing from the denial of his section 388 petition, father does not raise any argument in his letter brief about the denial of the petition. We accordingly dismiss father's appeal from denial of his section 388 petition as abandoned.
As to the selection and implementation of a permanent plan, mother did not argue that any exception to termination of parental rights applied, but she requested that the permanent plan be legal guardianship. The juvenile court found that B.M. was likely to be adopted and terminated mother's and father's parental rights.
DISCUSSION
A. Section 388 Petition
Mother contends that the juvenile court erred by denying her section 388 petition because she had demonstrated by a preponderance of the evidence that her circumstances had changed and that it was in B.M.'s best interest to be placed in her care with family maintenance services or for mother to receive reunification services. We are not persuaded.
Section 388 allows the parent of a dependent child to petition the juvenile court for a hearing to modify an earlier order. (§ 388, subd. (a)(1).) "A section 388 petition must show a change of circumstances and that modification of the prior order would be in the best interests of the minor child." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) "The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) In determining whether the burden has been carried, the juvenile court may consider the entire factual and procedural history of the case. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
After reunification services are terminated or bypassed, the focus in dependency proceedings shifts from family reunification to the child's need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.); In re G.B. (2014) 227 Cal.App.4th 1147, 1163.) A court entertaining a section 388 petition at this stage in the proceedings "must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child." (Stephanie M., supra, at p. 317.)
We review the denial of a section 388 petition for abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) "Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination." (In re A.S. (2009) 180 Cal.App.4th 351, 358; Stephanie M., at p. 318.)
Assuming for the sake of argument that mother's circumstances had changed, the juvenile court reasonably concluded that granting mother custody with family maintenance services or ordering reunification services would not promote B.M.'s best interests. At the time of the hearing in July 2020, B.M. had lived with his de facto parents for almost nine months, ever since he was three days old. B.M. had bonded with his de facto parents and was thriving in the stable and loving home they provided. The de facto parents loved B.M. and wanted to adopt him. Mother had visited with B.M. only three times for a total of six hours, the visits were supervised, and there was no evidence that B.M. had bonded with her even though the visits had gone well. Mother contends that it was in B.M.'s best interest to grant her section 388 petition because she demonstrated that she occupied a parental role during those visits by being engaged with B.M., talking to him, and making eye contact with him. While those behaviors were all appropriate, they do not demonstrate either that she occupied a parental role in B.M.'s life or that granting the section 388 petition was in B.M.'s best interest. During the six hours mother spent visiting with B.M. over the course of three months, there is no evidence that mother provided any meaningful care for him or occupied any sort of parental role during their limited time together. For instance, she neither fed nor changed his diaper during their visits. Moreover, given mother's longstanding problem with drugs and her resulting inability to care for her children, the juvenile court did not abuse its discretion by concluding that it would not benefit B.M.'s interest in stability or permanency to delay implementation of a permanent plan on the basis of mother's recent progress in addressing her substance abuse, which presented an "uncertain future" at best. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.)
For all of these reasons, we conclude that the juvenile court did not abuse its discretion by denying mother's section 388 petition. B. Termination of Parental Rights
Mother argues that the juvenile court erred by terminating her parental rights, because the parental bond exception applied. As the Department correctly points out, mother did not argue that any exception to termination applied at the hearing terminating her parental rights. Failure to raise one of the exceptions at the hearing deprives "the juvenile court of the ability to evaluate the critical facts and make the necessary findings" about the exception, and "it also deprives this court of a sufficient factual record from which to conclude whether the trial court's determination is supported by substantial evidence." (In re Erik P. (2002) 104 Cal.App.4th 395, 403; see also In re J.S. (2017) 10 Cal.App.5th 1071, 1080 [applying hybrid standard of review to exceptions to termination of parental rights].) "Allowing [mother] to raise the exception for the first time on appeal would be inconsistent with this court's role of reviewing orders terminating parental rights for the sufficiency of the evidence." (In re Erik P., supra, at p. 403.) We therefore conclude that mother has forfeited her right to raise the exception, and we affirm the juvenile court's termination of her parental rights. (Ibid.) We need not and do not address father's argument that termination of his parental rights should be reversed because his argument is dependent on reinstatement of mother's parental rights. C. Legal Guardianship
Were we to reach the merits of mother's argument, we would have to conclude that mother has not shown that terminating her parental rights would be detrimental to B.M. because she has maintained regular visitation and contact with him and he would benefit from continuing the relationship. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953 (L.Y.L.); § 366.26, subd. (c)(1)(B)(i).) The evidence shows that by the time B.M. was nine months old, mother and B.M. had shared three pleasant two-hour visits over the course of three months. That is not sufficient to demonstrate that whatever benefit B.M. derived from their relationship outweighed the benefits to B.M. from adoption. (L.Y.L., supra, at pp. 953-954; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 (Beatrice M.).) Although mother continued to be allowed to visit with B.M. monthly, there is no evidence in the record that her monthly visits continued with B.M. after March 2020. In addition, as we have already explained, the record contains no evidence that mother occupied any parental role in B.M.'s life, let alone one "resulting in a significant, positive, emotional attachment" from B.M. to mother. (L.Y.L., at p. 954.)
Mother challenges the juvenile court's choice of adoption as the permanent plan for B.M., arguing that a plan of legal guardianship instead would have provided B.M. the stability he needs, "while at the same time maintaining his vital relationship with mother which was in his best interests." Father joins this argument. But legal guardianship under section 366.26, subdivision (c)(4), cannot be considered as the permanent plan "unless adoption has been rejected due to the applicability of statutory exceptions" to the termination of parental rights. (In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1573; In re Cody W. (1994) 31 Cal.App.4th 221, 230-231; Beatrice M., supra, 29 Cal.App.4th at p. 1420.) No statutory exception to termination of parental rights applied here, so we conclude that the juvenile court did not err by failing to order legal guardianship as the permanent plan.
DISPOSITION
The order denying mother's section 388 petition is affirmed. The appeal from the denial of father's section 388 petition is dismissed as abandoned. The order terminating mother's and father's parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: MILLER
Acting P. J. CODRINGTON
J.