Opinion
E081053
10-24-2023
In re Z.P. et al., Persons Coming Under the Juvenile Court Law. v. T.R., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. SWJ2000496, Michael J. Rushton, Judge.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MENETREZ J.
T.R. (mother) appeals from (1) the juvenile court's dispositional findings and orders regarding her six-month-old son, Zy.; (2) the order denying her petitions under Welfare and Institutions Code section 388 seeking additional reunification services as to her three-year-old daughter, S., and her one-year-old son, Z.; and (3) the order terminating her parental rights as to S. (Unlabeled statutory citations are to the Welfare and Institutions Code.) Mother argues that the jurisdictional finding as to Zy. is not supported by substantial evidence and that the court abused its discretion by concluding that additional reunification services would not be in S.'s and Z.'s best interest. We conclude that her arguments lack merit, and we therefore affirm.
BACKGROUND
When the Riverside County Department of Public Social Services (the Department) began investigating mother in the fall of 2020, she had two daughters-A., who was seven years old, and S., who was 10 months old. During the dependency proceedings for the girls, mother gave birth to two boys, Z. and Zy. The juvenile court ultimately took jurisdiction over all four children. The only child not involved in this appeal is mother's oldest, A.
A. Jurisdiction and Disposition (A. and S.)
On October 11, 2020, mother was arrested for physically abusing A. A. told the social worker that mother had gotten angry with her over missing money, chased her down, threw her on the ground, sat on her stomach, and began hitting her. She said that mother punched her in the head twice, repeatedly slapped and scratched her, and hit her with a piece of wood that had come off of the dining table. The social worker observed that A. had scratches and bruises on the left side of her face and scratches on her neck.
The maternal grandmother reported that she was the one who had called the police, because A. had called her after the incident, terrified. The maternal grandmother said that mother struggled with mental health issues and an addiction to methamphetamine.
In an interview with the social worker after her arrest, mother said that she was not doing well, that she was hearing voices and felt like she was having a mental breakdown. She admitted she had been using methamphetamine since age 12, which was also around the time that she started "hearing voices and seeing shadows." She reported that she had been diagnosed with bipolar disorder, depression, anxiety, post-traumatic stress disorder (PTSD), and schizophrenia, and that she been to emergency treatment services more than five times in the past as a result of mental breakdowns and suicide attempts.
On October 12, 2020, the Department took both girls into protective custody pursuant to warrants, and the Department filed dependency petitions on their behalf two days later. The next day, the juvenile court detained the children, and the Department placed them both in the home of S.'s paternal grandmother, Shonda. At the jurisdiction and disposition hearing in January 2021, the court took jurisdiction over both girls, finding that A. came within section 300, subdivisions (a) and (b), and that S. came within section 300, subdivisions (b) and (j). The court sustained allegations that mother nonaccidentally inflicted serious physical harm on A. and that mother's unresolved mental health and substance abuse issues placed both girls at substantial risk of serious physical harm or illness. The court removed both girls from mother's care and ordered reunification services for mother.
B. Jurisdiction and Disposition (Z.)
In February 2021, Dr. Kenneth Garett completed a psychological evaluation of mother and identified as "probable diagnoses" schizophrenia, PTSD, and amphetamine type substance abuse. He opined that mother would not benefit from psychotherapy because she had limited insight into her mental health issues and that her mental health issues were so significant that no amount of parenting classes could eliminate the danger she posed to her children. He recommended that mother be given visitation only, stating "I cannot in good faith see her in any form being an appropriate or responsible parent although she wishes to be one."
In May 2021, mother entered a residential treatment program and tested positive for methamphetamine the following day.
On July 6, 2021, mother gave birth to a son, Z., and both she and the baby tested positive for amphetamine. Mother also tested positive for a communicable disease. Z. was diagnosed as medically fragile, transferred to Loma Linda University Medical Center, and placed on antiviral medication because of his exposure to mother's communicable disease.
When the social worker interviewed mother at the hospital the day after she gave birth, mother admitted that she had relapsed while in residential treatment because of stress and anxiety. The social worker also interviewed Z.'s father, Stephon, at the hospital. Stephon was unemployed and had no provisions for the baby. He denied using drugs and said that, although he knew of mother's methamphetamine addiction, he thought that she had stopped using while she was pregnant.
On July 12, 2021, the Department filed a dependency petition on behalf of Z., and the court ordered the infant detained the following day. On July 15, the Department placed him in a foster home for medically fragile children. Mother subsequently tested negative for the communicable disease, and Z. was taken off the antiviral medication and placed in a regular foster home.
When interviewed later in July, mother agreed to take a saliva test, and she tested positive for methamphetamine. She admitted that she had been using methamphetamine daily since being discharged from the hospital. She also admitted that, except for the three times she had been in residential treatment (in 2016, 2018, and 2021), she had been using the drug daily since she was 12 years old. She had snorted the drug multiple times per day from ages 12 to 18 and had been smoking it from a pipe for the last decade (she was then 29). On August 2, 2021, mother tested positive for methamphetamine when she was admitted to the hospital for a foot infection.
On August 5, 2021, Shonda relinquished care of A. to the Department, citing behavior issues. An investigator visited Shonda's home, and Shonda showed him a video of A. having a tantrum, hitting Shonda, and trying to leave with S. The investigator concluded that A. was "out of control a lot of the time while in placement" and that Shonda had reacted appropriately. The Department decided to let S. remain with Shonda and place A. in a temporary foster home while the Department looked for a relative placement. The Department believed that S. and Shonda shared a bond, that S. was happy in Shonda's care, and that Shonda was meeting the child's needs and keeping her safe.
On August 31, 2021, at the jurisdiction and disposition hearing for Z., the court took jurisdiction over the infant, finding that he came within section 300, subdivisions (b) and (j). The court removed Z. from mother's care and ordered reunification services for her.
C. Termination of Services (A., S., and Z.)
Shortly before Z.'s removal, mother had enrolled in a residential treatment program, but she was discharged on September 27, 2021, for failing to attend. She reenrolled the following month but was discharged again on December 28, 2021, for the same reason. Upon her discharge, she revoked her release of information so that the Department would not be able to access her drug testing results.
In January 2022, mother had an overnight visit with all three children that took place in a hotel room. After the visit, A. broke down crying and told her caregiver that mother had allowed Stephon to come to the hotel room. She said that Stephon and mother got into a physical fight and scared her. When A. wanted to call the caregiver, mother refused to let her use the phone and threatened that if A. told anyone that Stephon had been there, A. would "be in foster care for the rest of her life." When the maternal grandmother stopped by to check on them, mother made Stephon hide. Mother had trouble waking up in the morning, and A. had to change her siblings' diapers. A. told the caregiver that mother had been acting the way she used to behave when she was doing drugs.
After the same visit, Z.'s caregiver expressed concern that mother had not fed him enough, because he was extremely hungry and agitated and cried more than usual that day. In response to those reports, the Department suspended mother's overnight and unsupervised visits.
On February 23, 2022, the social worker received a text from someone claiming to be mother's counselor at the residential program, saying that mother had "every right to revoke her confidentiality" and was "doing awesome" and "hasn't been discharged at all." That same day, mother tested positive for methamphetamine and admitted to the social worker that she had sent the texts.
On May 3, 2022, at the 18-month status review hearing for A. and S. and the 6-month status review hearing for Z., the court terminated mother's reunification services as to all three children and set both matters for a selection and implementation hearing under section 366.26.
Within a month of the termination of mother's services, the Department placed Z. and A. with the maternal grandmother.
D. Birth of Zy. and Mother's 388 Petitions
On October 7, 2022, the Department received an emergency response referral from the hospital where mother had just given birth to another son, Zy. According to the referral, both mother and Zy. tested negative for all substances at birth, but mother admitted that she had used methamphetamine six months earlier.
The following week, the social worker interviewed mother at the sober living facility where she had been living for the past month. She and Zy. appeared to be doing well. She told the social worker that Zy.'s father was Stephon, that Stephon used drugs, and that he was a trigger for her and had caused her to relapse in the past. She said that she did not know where Stephon was but that his mother (the paternal grandmother) was always able to find him. She said that she had been sober for seven months.
On October 18, 2022, the Department submitted a preliminary adoption assessment evaluating Shonda as S.'s prospective adoptive parent. S. was doing well in Shonda's care and was healthy, happy, and developmentally on track. Shonda's home was clean and safe, and Shonda had been stably employed in the same job since 1991. S. was Shonda's only grandchild, and Shonda was committed to adopting her. The Department concluded that Shonda was capable of giving S. a healthy, stable, and permanent home.
On October 20, 2022, mother filed petitions under section 388 seeking additional reunification services as to A., S., and Z. Mother alleged that she had been living at the Coachella Valley Rescue Mission for the previous six months and had participated in services and remained sober during that time. She attached to her petitions (1) completion certificates for an anger management course, a parenting course, and a substance abuse course; (2) records showing she attended several A.A./N.A. meetings in the summer of 2022; and (3) the results of six negative drug tests taken during the same period.
On October 24, 2022, the Department filed a report recommending the court terminate mother's parental rights as to S. and select adoption as her permanent plan. The social worker reported that S. was "doing very well in her placement and at school." S. loved spending time with A. and Z. and was able to do so often, because the maternal grandmother watched S. one night during the week and during the weekends. The social worker reported that the maternal grandmother and Shonda had "developed a good relationship and [were] both in agreement to continue to support sibling relationships." Mother was having one-hour visits once per week with S., which were supervised by the maternal grandmother.
On November 9, 2022, the social worker visited mother's residential treatment program to give her notice that the Department planned to file a petition on behalf of Zy. The residential manager told the social worker that mother had sent Zy. to stay with the maternal grandmother two days earlier, in violation of the program's rules, which required mother to keep the child in her care. The manager also reported that mother would not be offered an extension when her program ended later that month, because she was not fully participating in the program, and was "lying and being manipulative."
When the social worker met with mother and asked where Zy. was, mother said that she sent him to stay with his "grandmother" because he was sick. When the social worker told mother that they needed to contact the maternal grandmother and set up a visit with Zy., mother admitted that Zy. was actually with Stephon's mother, the paternal grandmother. In response to the social worker's concern that giving Zy. to the paternal grandmother would risk allowing Stephon to have unsupervised contact with the child, mother said that the manager would not let Zy. return to the facility. About an hour later, the paternal grandmother returned Zy. to mother. Stephon came with her and refused to drug test, saying that he did not need to prove his sobriety to the social worker.
The following day (November 10), the Department filed a dependency petition on behalf of Zy., alleging that he came within section 300, subdivisions (b) and (j). On November 14, 2022, the court detained Zy. from Stephon and allowed the child to remain in mother's care.
On November 29, 2022, the social worker visited the sober living home where mother was residing as part of an outpatient program. The home was clean and organized, and mother had appropriate provisions for Zy. Mother and the child appeared to be doing well, and the social worker noted no safety hazards. The social worker visited mother again in December 2022 and in January 2023. Both times, the home was clean and safe, and Zy. appeared healthy, well fed, and free of any signs of illness or neglect.
On December 2, 2022, the Department filed a report recommending that the court sustain the allegations in the dependency petition filed on behalf of Zy., allow the child to remain in mother's care, and order family maintenance services. The Department believed that jurisdiction was necessary because mother's housing situation was unstable and she had not demonstrated that she could remain sober for an extended period without being in treatment. However, the Department believed that Zy. could safely remain in her care "with appropriate services in place and with the supervision of the [court and the Department]."
On February 6, 2023, the social worker learned from staff at mother's outpatient program that mother had abruptly moved out a few days earlier. Mother told the social worker that she felt unsafe around one of her housemates. She said that she was renting a unit in a multifamily dwelling that she had heard about from one of the other patients in the program. The following day, the social worker assessed mother's new home and found the property in need of repair. Mother said that she planned to stay with the property manager while the repairs were being completed. Mother reported that she had been sober for 10 months, which she said was "the longest she's ever been clean."
On February 14, 2023, the Department submitted a report recommending legal guardianship as the permanent plan for A. and Z. The Department reported that both children had known the maternal grandmother for their entire lives, were happy and comfortable in her home, and were bonded with her. The maternal grandmother was committed to providing A. and Z. with a safe and loving home. However, having recently learned that legal guardianship was an option, she preferred that route over adoption because she could see that mother was making a serious attempt to reunify with A. and Z. Despite mother's progress, the maternal grandmother still believed that mother would likely need services and supervision "for many years to come" before she could safely care for her children unsupervised.
E. Jurisdiction and Disposition (Zy.) and Selection and Implementation Hearing (S. and Z.)
On March 20, 2023, the court held a jurisdiction and disposition hearing for Zy., heard mother's section 388 petitions, and held a selection and implementation hearing for S. and Z.
Mother called the maternal grandmother as a witness to discuss mother's bond with the children and progress on the issues that led to the dependency proceedings. The maternal grandmother testified that the last time mother had used methamphetamine was April 2022. She believed mother had changed her life and was ready to care for all of her children. She supervised mother's one-hour visits with A., S., and Z., which happened once or twice per week. The visits went well, and the maternal grandmother had no concerns about Zy.'s safety in mother's care.
According to the maternal grandmother, S. knew who mother was and called her "mommy," and Z. was "getting to know" mother. S. loved playing with her siblings during the visits and did not want the visits to end. Although the maternal grandmother did not agree with the Department's recommended permanent plan for S., she said that she would continue to work with Shonda to facilitate visits with the siblings if S. were ultimately adopted.
A.'s counsel submitted stipulated testimony from A. stating that her first preference was to live with mother and her second preference was for the maternal grandmother to become her legal guardian.
S.'s counsel called Shonda to testify, and she stated that she and S. shared a close bond and that S. calls her "mom." Shonda agreed that S. was sometimes sad at the end of visits, but she attributed S.'s sadness to not wanting playtime with her siblings to end. Shonda said that S. was generally happy to see her at the end of visits and happy to come home with her.
The court took jurisdiction over Zy., adjudged the child a dependent under subdivisions (b) and (j) of section 300, and ordered family maintenance services for mother. As relevant here, the court sustained an allegation that "mother has a recent history of abusing methamphetamine leading to the physical abuse and neglect of other children [and] placing her child at risk of suffering physical and emotional harm." The court explained that it was particularly concerned with the fact that, according to mother's own timeline, she had used methamphetamine while pregnant with Zy. However, the court found that mother was making meaningful progress on her sobriety and that Zy. would be safe in her care so long as she was being supervised and continuing to participate in services.
As for mother's section 388 petitions, the court concluded that additional reunification services would not be in the best interests of S. and Z. but would be in A.'s best interests. The court therefore granted mother's petition as to A. and vacated the child's selection and implementation hearing. The court terminated mother's parental rights as to S., ordered adoption as S.'s permanent plan, and ordered legal guardianship as the permanent plan for Z.
DISCUSSION
A. Jurisdiction
Mother argues that the jurisdictional findings against her concerning Zy. are not supported by substantial evidence. We disagree.
As an initial matter, and as the Department correctly points out, mother's challenge is nonjusticiable because she does not challenge the jurisdictional findings against Stephon. "The general rule is that 'the juvenile court's exercise of jurisdiction over a child will be upheld if substantial evidence supports any one of the statutory bases for jurisdiction enumerated in the petition.'" (In re M.R. (2017) 7 Cal.App.5th 886, 896.) "Thus, where jurisdictional findings have been made as to both parents but only one parent brings a challenge, the appeal may be rendered moot." (In re D.P. (2023) 14 Cal.5th 266, 283; see also In re M.R., at p. 896 ["The juvenile court's various jurisdictional findings with respect to mother are not challenged in this appeal, and are independently sufficient to justify the juvenile court's exercise of jurisdiction over [the children]"].) But "[e]ven when a case is moot, courts may exercise their 'inherent discretion' to reach the merits of the dispute." (In re D.P., at p. 282.)
Mother does not respond to the Department's mootness argument or provide us with a reason to exercise our discretion to review the merits of her challenge. Nevertheless, we exercise our discretion to review mother's substantial evidence challenge on the merits, and we find it unpersuasive.
Subdivision (b)(1) of section 300 allows the juvenile court to exercise dependency jurisdiction when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of . . . ¶ the failure or inability of the child's parent or guardian to adequately supervise or protect the child." (§ 300, subd. (b)(1).) The "substantial risk" must exist "'at the time of the jurisdiction hearing.'" (In re David M. (2005) 134 Cal.App.4th 822, 829.) Evidence of past conduct can be probative of current conditions, but the Department bears the burden of demonstrating a "nexus" between the parent's past conduct and the current risk of harm. (In re J.N. (2021) 62 Cal.App.5th 767, 775.)
"'In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court.'" (In re R.T. (2017) 3 Cal.5th 622, 633.)
In challenging the sufficiency of the evidence supporting the jurisdictional findings against her under subdivision (b)(1) of section 300, mother argues that the record does not support the court's determination that her history of methamphetamine abuse was "recent." She argues that her 10 months of sobriety by the time of the hearing demonstrated that her substance abuse issues did not pose a current risk of harm to Zy. Mother's argument fails because it fails to take into account the reasonable inferences that the juvenile court could draw from mother's long history of methamphetamine abuse and unsuccessful treatment. By her own admission, this is the longest she has been able to maintain her sobriety since she began using methamphetamine at age 12. Except for three brief periods of treatment, mother used methamphetamine daily for almost two decades before her current period of sobriety. Both times mother relapsed during these proceedings she was pregnant, and she has not demonstrated that she can remain sober outside of a treatment program. The juvenile court could reasonably infer that without ongoing supervision, mother was likely to relapse again and thereby put Zy. at substantial risk of serious physical harm.
Contrary to mother's contention, the fact that Zy. did not test positive for methamphetamine at birth does not mean that her substance abuse issues were safely in the past. Mother cites two cases-in In re James R. (2009) 176 Cal.App.4th 129 and In re S.F. (2023) 91 Cal.App.5th 696-in support of her argument that the Department failed to demonstrate a sufficient nexus between her past use of methamphetamine and a current risk of harm to Zy. But those cases are readily distinguishable because in each one the record contained no evidence that the parent's past drug use had placed the children at risk of harm. (In re James R., at p. 137; In re S.F., at p. 717.) In contrast, the Department presented evidence that mother's methamphetamine use placed Zy. at risk of harm. Her drug use was the reason that she had recently failed to reunify with Zy.'s older siblings, and she placed Zy.'s health directly at risk by using methamphetamine while she was pregnant with him. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217, [mother's use of methamphetamine while pregnant "unquestionably endanger[ed] the health and safety of her unborn child"].)
Although almost a year of sobriety is a significant achievement, under these circumstances the court could reasonably determine that mother's history of substance abuse, treatment, and relapse posed a current risk to Zy. We therefore conclude that the record contains substantial evidence to support the court's jurisdictional finding based on mother's history of substance abuse. Our conclusion makes it unnecessary to address mother's challenges to the other jurisdictional findings against her. (See, e.g., In re I.A. (2011) 201 Cal.App.4th 1484, 1492 ["an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings once a single finding has been found to be supported by the evidence"].)
B. Section 388 Petitions
Mother argues that the court abused its discretion by denying her section 388 petitions as to S. and Z. We disagree.
Section 388 permits a parent of a dependent child to petition for a hearing to change, modify, or set aside any previous court order. (§ 388, subd. (a)(1).) The parent bears the burden of showing that circumstances have changed and that the proposed modification would be in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion." (In re J.C. (2014) 226 Cal.App.4th 503, 525.)
After reunification efforts have terminated and the court has set the matter for a section 366.26 hearing, the focus of the case shifts from the parents' interest in the care, custody, and companionship of the child to the needs of the child for permanency and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re J.C., supra, 226 Cal.App.4th at p. 527.) At that point, the child's "best interests are not to further delay permanency and stability in favor of rewarding" the parent for his or her "hard work and efforts to reunify." (In re J.C., at p. 527.)
On this record, the court reasonably concluded that granting mother additional reunification services for S. and Z. would not promote the children's best interests. Both children are bonded to their caretakers and have spent most of their young lives in their care. At the time of the hearing, S. was three years old and had been living with Shonda for over two years, and Z. was one year old and had been living with the maternal grandmother for his entire life except the brief period after his birth when he was placed in foster care. Both children were doing well in their placements, and their caretakers loved them and were committed to giving them safe and stable homes. At this stage of the proceedings, the children's need for permanency and stability is paramount, and mother's evidence that the children enjoyed visits, that S. knew who mother was, and that Z. was getting to know her failed to establish that their "best interests in permanency and stability would be furthered by" postponing their permanent plans. (In re J.C., supra, 226 Cal.App.4th at p. 526.)
Mother argues that reversal is nevertheless warranted because the court misconstrued her request as one for placement instead of additional reunification services. To support her argument, she points to the court's remark that her case would be more compelling if she were "ready to take placement of all children right now." We disagree with mother's reading of the record. The court was aware that mother's request was for additional services, as evidenced by the court's conclusion that "giving mom additional opportunities to reunify" would not promote the children's best interests. The court's reference to placement merely conveyed that if mother had requested placement and showed that the children could safely be returned to her, then she would have a stronger argument that the requested relief would be in the children's best interests (because placement with mother would be less likely to delay permanency than resumption of reunification services).
Next, mother argues that the court based its ruling on an incorrect factual premise. She points out that the court said that Z. had "been with his maternal grandmother since birth," when in fact he had spent some time in foster homes before being placed with her.
We conclude that the court's mistake is harmless. One of the factors that a court must consider when presented with a section 388 petition is "the strength of relative bonds between the dependent children to both parent and caretakers." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) The totality of the court's comments demonstrates that what mattered to the court when considering this factor was not that Z. had been with the maternal grandmother his whole life but that he had never lived with his mother. ("Z[.] is really just getting to know his mother. The mother has not lived with Z[.] Z[.] is having a brief hour to apparently two-hour visits with his mother. He has been out of his mother's care since the time he was born.") It is not reasonably probable that the court would have granted mother's petition as to Z. if the court had been reminded that Z. spent roughly 10 months in two foster homes before being placed with maternal grandmother.
Finally, mother contends that the court held her to an improper standard by requiring her to demonstrate that she could "make up" for the more than two years that S. had been out of her care. But the court did no such thing. Rather, in observing that "we're never going to be able to undo two and a half years in the home of another loving" relative, the court was commenting on the strength of S.'s bond with Shonda, which is a necessary and proper consideration in this context. (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
For all of these reasons, we conclude that the court properly denied mother's section 388 petitions as to S. and Z. Because mother's challenge to the order terminating her parental rights to S. is wholly derivative of her claim that the court erroneously denied her section 388 petition, we reject that challenge as well.
DISPOSITION
We affirm the jurisdictional and dispositional findings and orders as to Zy., the denial of mother's section 388 petitions as to Z. and S., and the orders entered at the section 366.26 hearing as to Z. and S.
We concur: RAMIREZ P. J., CODRINGTON J.