Opinion
E073731
03-12-2020
In re J.N., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.N., Defendant and Appellant.
Roni Keller for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Mitchell L. Norton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J271176) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Roni Keller for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Plaintiff and Respondent.
A juvenile court terminated the parental rights of defendant and appellant D.N. (mother) as to her son, J.N. (the child). On appeal, mother contends the court erred by: (1) denying her an evidentiary hearing on her Welfare and Institutions Code section 388 petition; and (2) finding the beneficial parental relationship exception to termination of parental rights inapplicable. (§ 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 May 30, 2017, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was three years old at the time. The petition alleged that he came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition included allegations that mother and the child's alleged father (father) suffered from substance abuse issues, mother was recently arrested for felony animal abuse, and she was incarcerated and therefore unable to provide care or support for the child.
Father is not a party to this appeal. Thus, this opinion will focus on the allegations concerning mother.
The social worker filed a detention report and stated that CFS received a referral when mother was arrested for animal cruelty. The sheriff explained that mother and her friend apparently went on a "drug run" and returned around midnight. Mother admitted to smoking methamphetamine that night. She left her friend's dog in the car all night and all day. The temperature was reported to be 105 degrees, and the dog succumbed to the heat and died. When mother was arrested, there was no appropriate caregiver for the child. Mother admitted to the social worker she needed help for her substance abuse.
The court held a hearing on May 31, 2017, and detained the child.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on June 19, 2017, recommending that the court sustain the petition, declare the child a dependent, and provide mother with reunification services. The social worker reported that mother was convicted of misdemeanor animal cruelty and was released on three years' probation. The social worker met with her on June 12, 2017, and mother said she had an intake appointment for a substance abuse program set for that morning. The social worker opined that mother appeared motivated and capable of accepting responsibility and obtaining resources.
The court held a jurisdiction/disposition hearing on July 27, 2017, and sustained the petition, after dismissing the allegation that mother was incarcerated. The parties informed the court that mother was participating in an outpatient substance abuse program. The court declared the child a dependent of the court, removed him from mother's custody, placed him in the care and custody of CFS, and ordered mother to participate in reunification services. Her case plan included the requirements that she participate in counseling, complete a psychotropic medication evaluation, complete a parenting education program, participate in outpatient substance abuse services (including a 12-step program), and submit to random drug testing. The court ordered supervised visitation once a week for two hours.
Six-month Status Review
The social worker filed a six-month status review report on January 16, 2018, recommending that reunification services be continued for six months. The social worker reported that mother had demonstrated minimal progress with her case plan. Although she had enrolled in substance abuse classes on June 12, 2017, she was not participating. She admitted to her counselor that she was depressed and relapsed on methamphetamine eight days in August. On August 17, 2017, mother tested positive for methamphetamine and marijuana. She was referred to an inpatient program but declined.
On December 12, 2017, mother informed the social worker that she was placed on the waiting list at Cedar House, and that she did not want to go to another inpatient program. Mother failed to remain in contact with the social worker to keep her informed of any progress.
The social worker further reported that the child was placed in a home and was adjusting well with the caregiver. Mother was having weekly supervised visits, the child enjoyed the visits, and the visits were appropriate.
The court held a six-month review hearing on January 26, 2018. Mother's counsel submitted on the report and informed the court that mother was enrolled in an inpatient program at Cedar House on December 29, 2017. The court continued mother's services.
Twelve-month Status Review
The social worker filed a 12-month status review report on July 3, 2018, recommending that the court terminate mother's services and set a section 366.26 hearing, with adoption as the permanent plan. Mother reported that she had completed 30 days of inpatient substance abuse rehabilitation at Cedar House in February 2018. However, she admitted to the social worker that she used methamphetamine the day she was released from Cedar House. Mother also admitted she used methamphetamine as recently as two weeks prior to the writing of the report. The social worker encouraged her to start an outpatient program, but she declined to do so.
The social worker reported that the child had been in the same placement since May 25, 2017. He and the foster parent were bonded and appeared to have a loving relationship. However, the foster parent was not interested in permanent placement.
The social worker further reported that mother had not been compliant with her services, and she did not remain in contact with CFS. The social worker opined that the child should not be returned to mother's care, since she had not demonstrated the ability to refrain from substance abuse, provide for the safety and well-being of the child, or meet his needs.
The court held a 12-month review hearing on August 16, 2018. Mother's counsel informed the court that mother had completed a drug program at the Gibson House on August 1, 2018. He thus asked the court to continue services for six more months. County counsel noted that mother apparently began treatment at the Gibson House on June 26, 2018, and that, given mother's longstanding history of substance abuse, there needed to be a demonstrated period of sobriety. County counsel argued that the court should proceed with setting a section 366.26 hearing, in light of mother's history of relapse. The court agreed, noting that mother had struggled with substance abuse throughout the case and had not made substantive progress in completing her case plan. The court then found the extent of her progress had been minimal, and there was no substantial probability the child could be returned within the statutory timeframe. The court terminated reunification services and set a section 366.26 hearing. It also authorized the child to be placed in a concurrent planning home.
The record shows the start date was actually June 18, 2018.
Section 366.26 and Section 388 Petition
The social worker filed a section 366.26 report on December 11, 2018, recommending that the court continue the hearing for 120 days to allow more time to complete an adoption home assessment. A concurrent family home had been identified, and the family was currently awaiting approval. The couple had expressed a desire to adopt the child, with whom they had developed a bond. The court continued the matter several times.
In an addendum report filed on August 5, 2019, the social worker reported that the child had been placed with another family on January 16, 2019. The child had assimilated well to their home, and he saw them as parental figures. He appeared to feel safe and secure with them and turned to them for comfort and reassurance. They were meeting his medical, emotional, and physical needs and loved him as their own child. They were dedicated to him and committed to raising him to adulthood.
On August 8, 2019, mother filed a section 388 petition requesting the court not to terminate her parental rights and to order further reunification services. As to changed circumstances, she alleged that, on August 4, 2019, she completed a 12-week parenting class and a 90-day residential drug program at Cedar House, and she was attending Narcotics Anonymous (NA) meetings. As to best interest of the child, mother simply alleged that she felt it would be in his best interest to have a relationship with her and to live with her. The court summarily denied mother's petition because it did not state new evidence or a change of circumstances and the proposed change of order did not promote the best interests of the child.
On August 9, 2019, the social worker filed additional information for the court regarding visitation. Mother was scheduled to visit twice a month for two hours and had been consistent; however, she stopped visiting when she was in the Cedar House program from May 9, 2019 to August 4, 2019. Her last visit was on April 17, 2019. Furthermore, the foster mother and teacher reported that when mother was visiting, the child would usually have difficulty in class after the visits. He would consistently have tantrums and roll on the floor. However, those who supervised visits reported only positive interactions between mother and the child.
The court held a contested section 366.26 hearing on August 28, 2019. Mother testified on her own behalf. She said the child had lived with her a little over three years before he was removed. At the time, she received cash aid and food stamps. She read books with him, went to the park, watched videos with him, and took him to church. He also called her "Mom" or "Mommy." She said she visited him once a week after he was removed, but then lost her services. Mother said she did not see him while she was in treatment, and her first visit was last Thursday. She noticed that he was not as emotional as the last time she saw him, in that, when she said goodbye, he did not cry. During the previous visit, he cried and wanted to go home with her. On cross-examination, mother was asked if she was involved with drugs at the time the child was removed. She admitted she was, but added, "[T]hat is not why they took him from me." She then explained that she was charged with cruelty to an animal.
During closing arguments, county counsel argued that the child had been out of mother's care for the majority of his life at that point, during the formative years of learning to speak, potty training, and starting school. Furthermore, although mother was trying to establish that there was a parental bond, her own testimony showed that since she had not visited him for the last few months, the child already had less of a reaction to her and did not cry when she had to leave. County counsel also pointed out that mother still did not acknowledge her son was taken from her because drug use was controlling her life. Counsel added that the child was doing extremely well in his placement, which was stable. Counsel for the child agreed. Mother's counsel asked the court not to terminate parental rights, asserting that mother was a parent for the first three and one-half years of his life and visited him after he was removed.
The court found the child adoptable and noted that he was thriving in the home of the foster parents. The court found that mother had not proven the beneficial parental relationship exception applied. It then terminated parental rights and ordered adoption as the permanent plan.
ANALYSIS
I. The Court Properly Denied Mother a Hearing on Her Section 388 Petition
Mother argues that the juvenile court erred in denying her an opportunity to be heard on her section 388 petition. She claims that she established a prima facie case in alleging her recent completion of a parenting class and an inpatient substance abuse program, her attendance at 12-step meetings, and her belief that it was in the child's best interest to live with her since she was his primary caretaker for the first part of his life, she visited him after removal, and his foster mother was not interested in adopting him. We disagree.
A. Relevant Law
"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 evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. [Citation.] A parent need only make a prima facie showing of these elements to trigger the right to a hearing on a section 388 petition and the petition should be liberally construed in favor of granting a hearing to consider the parent's request. [Citation.] [¶] However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G).) "In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
We note that "[a]fter 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 interests 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." (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
B. The Court Did Not Abuse its Discretion
The court declined to order a hearing on mother's section 388 petition because it concluded the proposed change of order did not promote the best interests of the child. We find no abuse of discretion in the court's decision. Although there was evidence of changed circumstances, in that mother recently completed a residential treatment program and a parenting program, the petition did not show that it was in the child's best interests to be removed from the home of his foster parents, where he was developing and thriving. Mother's petition merely alleged that she felt it would be in the child's best interests to have a relationship with her and live with her. She reiterates her position on appeal by asserting that she was the child's primary caretaker the first three years and nine months of his life and that she visited him consistently after removal. However, mother fails to show why it would be in the child's best interests to either provide her with more services or return the child to her custody. Although she was his primary caretaker during the first few years of his life, it was during that time that she went on a "drug run" and returned around midnight. She smoked methamphetamine that night and later admitted she needed help with her substance abuse problem. The record also shows that, during that time, mother had a criminal history involving possession of controlled substances, possession of paraphernalia, and willful cruelty to a child. Moreover, although mother did have visits with the child, there was little evidence of a bond. (See § II, post.)
The record does not specify whether mother was actually convicted of these offenses. --------
Mother further asserts that although the child was bonded with his first caretaker, she did not want to adopt him; moreover, his relationship with the prospective adoptive parents was relatively new, and they were still working to develop a bond with him. While these assertions may be true, they are not relevant to showing that granting mother more reunification services would promote the best interests of the child.
Furthermore, the juvenile court properly recognized the shift of focus from mother's interest in the care and custody of the child to his need for permanency and stability. (Stephanie M., supra, 7 Cal.4th at p. 317.) The child had lived in a stable home environment with his current caregivers since January 16, 2019. They were meeting all of his medical, emotional, and physical needs. They loved him as their own child and were committed to adopting him.
We conclude the court did not abuse its discretion in denying mother a hearing on her section 388 petition. Even if the petition did allege a change of circumstances, the facts alleged in the petition did not support the conclusion that the child's best interests would be served by the requested order.
II. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.
A. Relevant Law
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)(1). (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).)
The parent has the burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.) "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The review of an adoption exception incorporates both the substantial evidence and the abuse of discretion standards of review. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314; In re J.S. (2017) 10 Cal.App.5th 1071, 1080.) We will apply the substantial evidence standard of review to evaluate the evidentiary showing with respect to factual issues, such as whether the beneficial parental relationship exists. However, the determination of whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child" is reviewed for an abuse of discretion. (§ 366.26, subd. (c)(1)(B); Bailey J., at pp. 1314-1315; see J.S., at p. 1080.)
B. The Court Properly Terminated Parental Rights
In support of her position, mother asserts that she consistently visited the child after his removal and had positive interactions during the visits. She asserts that she played games with him and was very attentive and responsive to his needs. Furthermore, she asserts the child "knew the mother as his mother." In her reply brief, she adds that she initially made strenuous efforts to rehabilitate herself, she made immediate efforts to recover and reenter treatment after relapsing, she had deep remorse over the factors that brought the child into dependency, the child was bonded with her since he lived with her for the first few years of his life, the child's first foster mother did not want to adopt him, and the child's relationship with the prospective adoptive parents was relatively new and they were still working to develop a bond. Mother requests a permanent plan of legal guardianship, rather than adoption.
At the outset, we note that the focus of the beneficial parental relationship exception is the parent/child relationship, which "must be sufficiently strong that the child would suffer detriment from its termination." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Thus, mother's efforts at treatment, rehabilitation, and the other issues she asserts are not relevant. Furthermore, her interactions with the child do not even begin to demonstrate that their relationship promoted the child's 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.) Frequent and loving contact with the child is insufficient to establish the " 'benefit from a continuing relationship' " contemplated by the statute. (Beatrice M., at p. 1418.) Moreover, mother has not proffered any evidence to support a finding that he had a "substantial, positive emotional attachment [with her] such that the child would be greatly harmed" if the relationship was severed. (Autumn H., supra, 27 Cal.App.4th at p. 575.) To the contrary, the evidence showed that, after not seeing him for four months while she was in treatment, she visited with him recently, and he was less emotional when she had to leave than he was at the previous visit. In other words, he appeared to be less attached to her than he was before.
Furthermore, the evidence showed that the child was bonded with the prospective adoptive parents and saw them as parental figures. By the time of the section 366.26 hearing, he had lived with them for over seven months. He looked to them to meet his needs, and when he was scared or upset, he turned to them for comfort and reassurance. They were meeting all his medical, emotional, and physical needs and loved him as their own child. They were dedicated to the child and committed to raising him to adulthood, and they were confident they could provide him with a loving and stable home.
We conclude that mother failed to meet her burden of showing a beneficial parental relationship. Therefore, the court did not abuse its discretion by declining to apply the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.