Opinion
C086749
07-23-2018
In re CHARLOTTE C., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. NICOLE C., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD238098)
Nicole C. (mother) appeals from the juvenile court's orders denying her petition for modification and terminating parental rights for her child, Charlotte C. (the minor). (Welf. & Inst. Code, §§ 366.26, 388, 395; statutory section references that follow are to the Welfare and Institutions Code unless otherwise stated.) Mother contends the trial court erred in (a) denying her section 388 modification petition and (b) failing to find the beneficial parental relationship exception to adoption applied. (§ 366.26, subd. (c)(1)(B)(i).) We affirm the orders.
FACTS AND PROCEEDINGS
The minor came to the attention of the Sacramento County Department of Child, Family and Adult Services (Department) when the minor and mother tested positive for methamphetamine at the minor's birth. Mother received and successfully completed voluntary services from February 16, 2016 through October 19, 2016, including early intervention drug court, parenting education, drug testing, general counseling, and anger management.
In April 2017, and following mother's alleged stabbing of her boyfriend with a kitchen knife, the Department filed a section 300 petition regarding the minor based upon mother's continuing and untreated substance abuse issues and ongoing domestic violence. In August 2017, an amended section 300 petition was filed, superseding the original and expanding upon the domestic violence allegations.
In her interview with the Department, mother acknowledged using methamphetamine, marijuana, oxycontin and cocaine, although she denied any cocaine use after 2008 or 2009. She admitted heavy methamphetamine use on and off since age 18 or 19 "to avoid negative feelings." Mother participated in a drug diversion program in 2009 and struggled to maintain her sobriety following completion of her involuntary services (including early intervention drug court) in October 2016. Mother last tested positive for methamphetamine in May 2017. She failed to test as directed on May 15, 18, 22, 25, 30 and June 1, 2017.
Mother reported periods over the course of 10 years where she maintained her sobriety. The longest period of sobriety was for two years after her release from prison on a battery charge and when she was participating in transitional living. Mother "disclosed her drive to remain clean was she knew she was being watched and would have to random urine test." Mother could not recall a period of sobriety where she was not supervised. She has participated in numerous substance abuse programs, many of which she felt did not meet her needs.
Mother denied stabbing her boyfriend, but did admit to a history of domestic violence with that boyfriend, including incidents where the minor was present. Mother was physically assaultive towards her boyfriend and said that he had thrown a remote, which almost hit the minor. On several occasions, the minor cried during arguments between mother and her boyfriend.
Mother has a criminal history including several burglaries, battery, and using a controlled substance; she is a Health and Safety Code section 11590 registrant. She has a history of anxiety, depression, bipolar disorder, unstable mood disorder, and mania, but does not take medication.
Following the contested jurisdictional hearing on October 12, 2017, the juvenile court found: "1. The mother . . . has a substance abuse problem from which she has failed and/or refused to rehabilitate and which impairs her judgment and ability to provide adequate care, supervision, and protection for the child, Charlotte [C.] . . . in that the mother has a long history of substance abuse dating back to at least 2009. The mother continues to abuse methamphetamine and tested positive on April 12, 2017. The mother received Informal Supervision services from February 16, 2016 until October 19, 2016 due to the mother and child testing positive for methamphetamines at the birth of the child. The mother successfully completed Informal Supervision services and Early Intervention Drug Court in October 2016, which was approximately six months ago. The mother's untreated substance abuse issues place the child at substantial risk of serious physical harm, abuse, and/or neglect.
"2. The mother . . . has failed to protect the child Charlotte [C.], from domestic violence in the home in that on or about April 5, 2017, the mother and her boyfriend . . . engaged in domestic violence in the home in the presence of the child. The mother was arrested on that date for stabbing the boyfriend with a knife while the child was in the home. The mother's participation in and failure to protect from domestic violence places the child at substantial risk of serious physical harm, abuse, and/or neglect."
The juvenile court determined by clear and convincing evidence that "[t]here is a substantial danger to the child's . . . physical health/safety, protection or emotional well-being or would be if the child was returned home and there are no reasonable means by which the child's well-being can be protected without removing the child from the parent's . . . physical custody."
The court further found by clear and convincing evidence that reunification services should be denied mother because mother had previously been convicted of a felony as defined by Penal Code section 667.5, and mother "has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted court ordered treatment during a three-year period immediately prior to the filing of the petition or has failed or refused to comply with a program of drug or alcohol treatment as described in the case plan required by Welfare and Institutions Code section 358.1 on at least two occasions, even though the programs identified were available and accessible."
Accordingly, the minor was adjudged a dependent of the court, reunification services were denied to mother, and the matter was set for a section 366.26 hearing on February 5, 2018.
Thereafter, mother filed a section 388 petition for modification, which was heard concurrently with the contested section 366.26 hearing on March 5, 2018.
The Department presented the testimony of a social worker, who had observed a visit between mother and the minor in February 2018. He noted mother and the minor interacted well, but that the minor did not show "any distress after the visit when the visit ended, and she transitioned back to the caregiver." The bond appeared to be friendly in nature, as opposed to that of "a seriously bonded child to the mother." The visitation log notes evidenced mother's frustration regarding the minor's failure to bond with her and recognize her as the mother. The social worker also observed the minor with her caregiver and believes the minor is bonded to that caregiver as if she were the parent.
Mother testified that since October 2017, she has engaged in more services, obtained a part-time job as a dental assistant, and attends AA and NA meetings. She has been clean since May 29, 2017, and believes she has a parent-child bond with the minor because the minor recognizes her, sits in her lap, and hugs and kisses her, which did not happen in the beginning of their visits. Nonetheless, the disposition report reflects mother's frustration that the minor referred to her caregiver as her mom and that the social worker has observed the minor calling her caregiver "momma," who she is excited to see at the end of visits with mother. Mother conceded the minor and her caregiver care for each other and that the caregiver is a good mother.
After considering the evidence and argument of counsel, the juvenile court denied mother's section 388 petition and terminated her parental rights. Relative to the section 388 petition, the court explained the focus at that procedural juncture was "exclusively on the permanence and stability for the child." The court recounted its previous determination to bypass reunification services because of mother's lengthy history of substance abuse and repeated relapses. Her longest period of sobriety had been two years and her current period was nine months. Mother successfully completed a number of programs, but has always relapsed. "So on these facts the court concludes that the circumstances are changing - not changed - and on that ground alone the Court would deny the [section] 388 motion." The court further determined the minor has a strong bond with her caregiver, with whom the minor has lived nearly half of her life, and that it would not be in her best interests to delay permanence.
As to termination, the court found the minor adoptable and that by clear and convincing evidence she was likely to be adopted within a reasonable period of time. The court continued: "The child's bond with the mother does not compare with that with the caretaker. And by that I mean the child has been with the caretaker for one half of her life. There is no dispute, I think, in this case that the caretaker is providing a wonderful environment for the child and that the child is thriving there." The court determined it would "not be detrimental to the child to sever a bond that she has with her mother, especially in light of the very thriving substantial bond that she has with her caretaker and the permanence that will follow."
Mother appeals.
DISCUSSION
I
The Section 388 Petition for Modification
Mother contends the juvenile court abused its discretion when it denied her section 388 petition. She argues, in essence, that she met her burden of showing changed circumstances through her presentation of evidence that she had completed residential treatment, continued outpatient treatment, tested negative for drugs, was participating in counseling, had a sponsor, and was working the steps of her program.
"Section 388 allows an interested person to petition the juvenile court for a hearing to change, modify or set aside a previous order if the petitioner can establish changed circumstances and that the proposed order would be in the best interests of the child. The burden of proof is on the petitioner. [Citations.]" (In re Cliffton B. (2000) 81 Cal.App.4th 415, 423 (In re Cliffton B.).) A juvenile court's decision concerning a section 388 petition "will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]" (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Here, the juvenile court determined mother's circumstances were changing, not changed. This decision fell well within the court's discretion. While mother had recently completed a residential drug treatment program and was participating in an outpatient program, this was not her first round of treatment or period of sobriety, all of which previously ended in subsequent relapses. The most recent of these was an informal round of services following the positive drug tests of mother and the minor at the minor's birth. Mother completed these services, but nonetheless relapsed within months after monitoring ceased, resulting in the section 300 petition when the minor was about 14 months old.
Therefore, we find some evidence that, at best, mother's circumstances were changing, but not changed based upon her lengthy and repeated history of substance abuse, participation in treatment, and subsequent relapses. Mother's mere nine months of sobriety, in the context of her repeated relapses into substance abuse spanning over a decade and despite multiple rounds of treatment, does not demonstrate changed circumstances. (See In re Cliffton B., supra, 81 Cal.App.4th at pp. 423-424 [seven months sobriety insufficient to show changed circumstances given repeated history of periods of sobriety followed by relapse into drug use]; see also In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [counsel not ineffective for failing to bring § 388 motion because completion of drug treatment showed changing, not changed circumstances]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 531 fn. 9 [recognizing "[i]t is the nature of addiction that one must be 'clean' for a much longer period than 120 days to show real reform"].) Mother herself admitted her motivation to stay clean arose from the monitoring and could not recall a period of unsupervised sobriety.
The trial court did not abuse its discretion.
II
Beneficial Parental Relationship Exception to Adoption
Mother argues the juvenile court erred by failing to find a beneficial parental relationship existed and constituted an exception to adoption as a permanent plan. We see no error.
As explained in In re K.P. (2012) 203 Cal.App.4th 614, 620 (In re K.P.): "At a hearing under section 366.26, the court must select and implement a permanent plan for a dependent child. Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. [Citation.] To implement adoption as the permanent plan, the juvenile court must find, by clear and convincing evidence, that the minor is likely to be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).) Then, in the absence of evidence that termination of parental rights would be detrimental to the child under statutorily specified exceptions (§ 366.26, subd. (c)(1)(A)-(B)), the juvenile court 'shall terminate parental rights' (§ 366.26, subd. (c)(1))."
Mother relies on the beneficial parental relationship exception to adoption codified in section 366.26, subdivision (c)(1)(B)(i), which recognizes parental rights shall not be terminated if "[t]he court finds a compelling reason for determining that termination would be detrimental to the child . . . [because] [¶] [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
As explained in In re Cliffton B., supra, 81 Cal.App.4th at page 424: "Although the statute does not specify the type of relationship necessary to derail termination of parental rights, case law has required more than 'frequent and loving contact.' [Citation.] '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.' [Citation.]"
Caselaw has noted diverging views on the standard of review to be employed in a challenge to the applicability of the beneficial parental relationship exception. (In re K.P., supra, 203 Cal.App.4th at p. 621.) We concur with In re K.P., at pages 621-622 and In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 that this review incorporates both the substantial evidence and abuse of discretion standards. The juvenile court's factual determination concerning the nature of the relationship between parent and child is reviewed for substantial evidence, while the court's discretionary determination whether that relationship justifies not terminating parental rights is reviewed for an abuse of discretion. (In re K.P., at pp. 621-622.)
Here, we find substantial evidence supports the trial court's factual determination that: "The child's bond with the mother does not compare with that with the caretaker. And by that I mean the child has been with the caretaker for one half of her life. There is no dispute, I think, in this case that the caretaker is providing a wonderful environment for the child and that the child is thriving there." While the visits between the minor and mother were friendly and affectionate, the minor did not show any distress in transitioning back to the caregiver and was, in fact, excited to be reunited with her caregiver, who she called "momma." The social worker opined the bond between the minor and mother appeared friendly in nature, as opposed to that of "a seriously bonded child to the mother." This is also supported by mother's frustration regarding the minor's failure to bond with her and recognize her as mother. Further, it was the social worker's opinion that the minor had a parental bond with the caregiver.
We further find that the juvenile court did not abuse its discretion in determining that it would "not be detrimental to the child to sever a bond that she has with her mother, especially in light of the very thriving substantial bond that she has with her caretaker and the permanence that will follow." As explained in In re Grace P. (2017) 8 Cal.App.5th 605, 613, this second prong of the analysis questions whether the parent has proven "that the bond between the parent and child is sufficiently strong that the child would suffer detriment from its termination. [Citation.] In applying this exception, the court must take into account numerous variables, including but not limited to (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the ' "positive" ' or ' "negative" ' effect of interaction between parent and child, and (4) the child's unique needs. [Citation.]"
Here, the minor was taken from the mother when she was approximately 14 months old and was approximately 25 months old at the time of the section 366.26 hearing. As discussed above, while the minor had grown to have pleasant, affectionate weekly visits with mother, the minor had lived with her caregiver nearly half of her very young life and viewed the caregiver as her parent.
Under these circumstances, the juvenile court did not abuse its discretion in determining mother failed to prove a substantial positive emotional attachment such that the minor would be harmed if that relationship was terminated. It is well-settled that regular contact evidencing a friendly relationship is insufficient to constitute a compelling reason that terminating parental rights would be detrimental to the child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 [evidence of frequent and loving contact insufficient to establish the existence of a beneficial parental relationship]; see also In re K.P., supra, 203 Cal.App.4th at pp. 622-623 [pleasant weekly two-hour visits]; In re Bailey, supra, 189 Cal.App.4th at p. 1316 [relationship amounted to supervised playdates with loving adult].)
DISPOSITION
The juvenile court's orders are affirmed.
HULL, J. We concur: BLEASE, Acting P. J. MURRAY, J.